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The opinion of the court was delivered by
Wahl, J.:
The State appeals, on a question reserved, the trial court’s retroactive application of the 1996 amendments to K.S.A. 21-4705 of the Kansas Sentencing Guidelines Act (KSGA) to an offender who committed crimes and was sentenced prior to July 1, 1993, for the purposes of determining eligibility for sentence conversion.
Defendant, Valjean Roseborough, was convicted of and sentenced for three crimes, all prior to 1993. In Case No. 89-CR-648, Roseborough was convicted in Sedgwick County of two counts of forgery and received a suspended sentence. After the district court found Roseborough had violated the terms of his suspended sentence, the district court revoked the suspension and imposed a 1-to 2-year sentence on each of the forgery counts. In Case No. 90-CR-994, Roseborough was convicted of one count of cocaine possession and again received a suspended sentence which was also revoked and a 3- to 10-year sentence imposed. In Case No. 91-CR-878, Roseborough was convicted of cocaine possession. After revoking Roseborough’s suspended sentence for this third crime, the district court imposed a 3- to 10-year sentence.
On November 30, 1993, the Department of Corrections issued a sentencing guidelines report pursuant to K.S.A. 21-4724 which determined Roseborough’s controlling severity level was level 4 drug for his conviction of cocaine possession in 91-CR-878. The report also determined Roseborough’s criminal history included another nonperson possession of cocaine conviction in 90-CR-994 and two nonperson forgery convictions in 89-CR-648. Based on a resulting criminal history score of F, the report concluded Rose-borough was ineligible for retroactive sentencing conversion under the KSGA, and a sentence of 3 to 10 years’ imprisonment was imposed.
On August 15, 1996, Roseborough moved for conversion of his sentences, arguing he was entitled to retroactive conversion based upon the 1996 amendments to K.S.A. 21-4705, which added border boxes to the drug sentencing guidelines. In the alternative, he argued that if the amendments were not retroactive, an equal protection violation occurred if some, but not all, inmates falling into border boxes were eligible for sentence conversion.
A hearing on the motion for conversion was held on August 23, 1996, and die district court granted Roseborough’s motion converting his sentence to a controlling sentence of 42 months to be followed by 2 years of post-release supervision. The court stated:
“The Court makes these findings based upon the position that due to the recent amendments to the Kansas Sentencing Drug Grid which adds border boxes, the Defendant would fall under border box 4-F. The Court further adopts the defense’s position that to not grant conversion to the Defendant in this case would violate the principles of equal protection under the law in that similarly situated defendants would be treated differently if the Court were to do otherwise.”
The State appealed this finding pursuant to K.S.A. 22-3602(b)(3). An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law in this state. This court will not entertain a question reserved merely to. demonstrate errors of a trial court in rulings adverse to the State. Questions reserved generally presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases. State v. Roderick, 259 Kan. 109, Syl. ¶ 1, 911 P.2d 159 (1996). We agree that the State’s question reserved is one of statewide interest.
We are again required to interpret the provisions of the KSGA, K.S.A. 21-4701 et seq. Interpretation of a statute is a question of law, and our review is unlimited. State v. Roderick, 259 Kan. at 110.
The 1996 amendment to the KSGA added optional nonprison time to the drug sentencing grid. L. 1996, ch. 258, § 11. K.S.A. 1996 Supp. 21-4705 establishes the grid and presumptive dispositions for drug crimes and provides that the sentencing court may impose an optional nonprison sentence if the court makes specified findings concerning the availability of treatment for the defendant.
This amendment to K.S.A. 21-4705 added border boxes for drug offenses classified in grid blocks 3-E, 3-F, 3-G, 3-H, 3-1, 4-E, and 4-F and repealed the former small quantity of marijuana provision under the prior subsection (c) of K.S.A. 21-4705. Prior to the 1996 amendment, the designated grid boxes provided for a presumptive imprisonment sentence. After the amendment, the border boxes provided for an optional nonprison sentence if specific findings were made by the trial court.
Roseborough acknowledges that this court determined in State v. Ford, 262 Kan. 206, 936 P.2d 255 (1997), that the 1996 amendments to the KSGA are substantive and apply prospectively. In Ford, the defendant was convicted of one count of conspiracy to deliver marijuana and was sentenced to imprisonment for 18 months in March 1996, prior to the effective date of the 1996 amendments. The journal entry showed the criminal history classification used to calculate Ford’s sentence to be F. The 3-F block in the drug grid provided a range of months from 23 to 24 to 26. K.S.A. 21-4705(a). The presumptive guidelines sentence, according to the journal entry, was 23 to 26 months “ ‘minus 6 months for conspiracy.’ ” 262 Kan. at 207. Thus, the court sentenced the defendant to serve 18 months’ imprisonment.
When K.S.A. 21-4705(a) was amended effective July 1, 1996, the range of months in the 3-F block on the drug grid remained the same, but the designation of presumptive imprisonment was changed to that of a border box with the option of a nonprison sentence. K.S.A. 1996 Supp. 21-4705(a). In contending the amended drug grid should be applied retroactively, Ford relied upon language in K.S.A. 21-4705(a) which provided: “For the purpose of sentencing, the following sentencing guidelines grid for drug crimes shall be applied in felony cases under the uniform controlled substances act for crimes committed on or after July 1, 1993.” Since Ford had committed the crime after July 1,1993, she argued the 1996 amendments should be applied to her case. This court, however, held the statute should not be applied retroactively because it is substantive and contains no express retroactive provision, stating:
“It is a fundamental rule of statutory construction that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Sutherland, 248 Kan. 96, Syl. ¶ 4, 804 P.2d 970 (1991). An exception to the rule has been recognized for statutory change that is merely procedural or remedial in nature, but that exception has no application in the present case because a statute that defines the length or type of criminal punishment is substantive. 248 Kan. at 106.
“In Sutherland, the court stated: ‘The legislature is aware of this court’s established rules of statutory construction. The legislature is aware, and has, on many occasions, used specific language to clearly set forth whether a statute is to be applied prospectively or retrospectively.’ 248 Kan. at 106. One of the occasions on which the legislature expressly provided for retroactive application was in enacting the Kansas Sentencing Guidelines Act (Act) in 1993. K.S.A. 21-4701 etseq. At that time, the legislature prefaced the grids for nondrug and drug crimes with the directive that they ‘shall be applied in felony cases for crimes committed on or after July 1,1993.’ K.S.A. 21-4704(a); see K.S.A. 21-4705(a). In another section of the Act, K.S.A. 21-4724, the legislature prescribed when and how the guidelines were to be applied to persons who committed crimes prior to July 1,1993.” 262 Kan. at 208.
The Ford court determined that the language in K.S.A. 21-4705(a) established that crimes committed on or after July 1,1993, would be punished according to the sentencing guidelines.
“Hence, if the legislature had changed the date in the language prefacing the drug grid to coincide with the effective date of the 1996 amendment, the resulting provision might have been construed to restrict application of the sentencing guidelines to crimes committed on or after July 1,1996. By not changing the date in K.S.A. 1996 Supp. 21-4705(a), the legislature maintained July 1,1993, as the date on or after which a crime had to be committed in order for the sentencing guidelines to govern punishment.” 262 Kan. at 209.
The Ford court concluded that the 1996 amendments to K.S.A. 21-4705 must be applied prospectively and did not apply to Ford.
More recently, this court again considered the 1996 amendments to the KSGA in State v. Reason, 263 Kan. 405, 951 P.2d 538 (1997). In Reason, the crimes were committed on June 14, 1995, but sentencing was delayed until August 30, 1996. Reason’s criminal history category was G and his crime was a drug severity level 3. The pre-July 1, 1996', version of K.S.A. 21-4705(a) showed a presumptive imprisonment sentence range of 20 to 23 months. Under the July 1, 1996, amendment, the same severity level crime and criminal history category showed a border box sentence range of 20 to 23 months, but for border box crimes the district court also had an optional nonimprisonment sentence choice upon making certain findings on the record pertaining to available treatment. Reason tried to distinguish Ford because Ford was sentenced before the 1996 amendments became effective and Reason was sen tenced afterward. This court found Ford to be controlling, holding the 1996 amendments to K.S.A. 21-4705 to be substantive amendments with only prospective application. This court held, in applying K.S.A. 21-4705, that “the critical date is the date of the crime, not the sentencing date, absent express legislative intent to the contrary.” 263 Kan. at 417.
Roseborough attempts to distinguish his case from Ford by arguing that the retroactive provision of the sentencing guidelines applies the 1996 amendments retroactively for inmates convicted prior to 1993, whereas Ford argued that the 1996 amendments, standing alone, applied retroactively to anyone sentenced after July 1, 1993. It is Roseborough’s position that language in K.S.A. 21-4724(b)(1) supports his argument that the 1996 border box sentences should be applied retroactively to him. K.S.A. 21-4724, the limited retroactivity provision of the KSGA enacted in 1993, provides:
“(a) The sentencing grid for nondrag crimes as provided in K.S.A. 21-4704 and the sentencing grid for drug crimes as provided in K.S.A. 21-4705 shall be applied for crimes committed before July 1, 1993, as provided in this section.
“(b)(1) Except as provided in subsection (d), persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-1 or 6-G of the nondrag grid or in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 21-4705 and amendments thereto, if sentenced pursuant to the Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provision specified in the Kansas sentencing guidelines act.” (Emphasis added.)
Roseborough argues that when K.S.A. 21-4724(b)(l) provides sentence conversion to persons who committed crimes which would be classified “in a presumptive nonimprisonment grid block on either sentencing grid . . . pursuant to the provision of subsection (c) of K.S.A. 21-4705 and amendments thereto” (emphasis added), it is a clear legislative expression of intent that all post-1993 amendments to K.S.A. 21-4705, including the 1996 border box amendments, are to be applied retroactively. We disagree.
The “and amendments thereto” language relied upon by Rose-borough is not an expression of legislative intent that all future amendments to the retroactivity provision of K.S.A. 21-4724(b) au tomatically apply to Roseborough. We note that the preamble language of the 1996 amendments to K.S.A. 21-4705 states that it applies only to crimes committed after July 1,1993. Further, K.S.A. 21-4723 provides that, except as provided in K.S.A. 21-4724, all prosecutions of prior crimes shall be punished “under the laws existing at the time such crimes were committed.” In addition, K.S.A. 21-4724, with the limited retroactivity provision enacted in 1993, established a very specific timetable and procedure for sentence conversion, including the issuing of sentencing guidelines reports by the Department of Corrections followed by the opportunity of a court hearing, all to be accomplished in 1993.
K.S.A. 21-4724(b)(l) states with regard to drug crimes that only persons who have committed crimes which would be classified in drug grid blocks 3-H, 3-1, and presumptive nonimprisonment grid blocks are entitled to retroactive conversion of their sentences. Reading this language in the context of the 1993 amendment, the statute refers only to the 1993 version of the drug grid. The 1996 amendments did not provide for new implementation procedures or new dates to effect any new sentence conversions. This indicates that the legislature did not contemplate any additional retroactive conversions under the 1996 amendments. The legislature was certainly aware of the various provisions of K.S.A. 21-4705 and K.S.A. 21-4724 which limit retroactivity when it enacted the 1996 amendments and chose not to amend the other portions of the statute.
The legislature has the exclusive role of providing for the punishment of convicted criminals. State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991). The legislative power to punish convicted criminals is controlled only by the Constitutions of the United States and of the State of Kansas. State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985). Because the legislature did not amend the relevant statutes to express clearly its intention that all inmates in Roseborough’s situation are to be affected by the 1996 amendments to K.S.A. 21-4724(b)(l), we conclude there was no intent to do so. Our decisions in Ford and Reason control this case, and Roseborough’s attempt to distinguish his situation fails.
Roseborough also raises an equal protection argument, which the district court adopted. The United States Supreme Court has described the concept of “equal protection” as one which “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” State ex rel. Schneider v. Liggett, 223 Kan. 610, 613, 576 P.2d 221 (1978) (quoting Ross v. Moffitt, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 94 S. Ct. 2437 [1974]). “[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 Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
Under the rational basis test adopted by this court in Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 513 U.S. 850 (1994), in reviewing an equal protection challenge to the KSGA, the classification must bear a rational relationship, to the legislative objective. As we stated in Chiles:
“With a rational basis review, relevance is the only relationship required between the classification and the objective. The constitutional safeguardis offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. Insofar as the objective is concerned, a statutory discrimination will not be set aside if any set of facts reasonably may be conceived to justify it. The legislature’s purpose in creating the classification need not be established. The classification must, however, bear a rational relationship to a legitimate objective. The rational basis test contains two substantive limitations on legislative choice: (1) legislative enactments must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals. These limitations amount to a prescription that all persons similarly situated should be treated alike.” 254 Kan. at 895.
Roseborough notes that prior to the 1996 amendments, the drug grid contained no border boxes, but that K.S.A. 21-4724 provided for retroactive sentence conversion if the offender fell into drug grid boxes 3-H or 3-1 and satisfied the small quantity marijuana exception. K.S.A. 21-4705(c); K.S.A. 21-4724(b). Roseborough observes that while the legislature repealed the small quantity marijuana exception and established new border boxes in 1996, the legislature did not amend the retroactive provisions of K.S.A. 21-4724(b) to reflect this change but continued to limit the retroactive provision to 3-H or 3-1 categories on the drug grid. He states that this results in inmates convicted of preguideline crimes now classified in five of seven border boxes being ineligible for retroactive conversion of their sentences. Roseborough maintains that not to apply the 1996 amendments retroactively to him (he would fall into category 4-F on the new grid) in the sentencing conversion context results in a statutory classification that provides the benefits of retroactivity to some but not to all border box sentences. He argues that to provide the benefits of retroactivity to some border box sentences while denying the same benefits to other border box cases is not rational and cannot further the objective of reducing the prison population without risking public safety by converting the sentences of less serious offenders and requiring more serious offenders to serve their original sentences.
In response, we would simply point out that the 1996 amendments to the drug grid do not apply to Roseborough. He was sentenced in accordance with the law applicable at the time of his crime. See State v. Riley, 259 Kan. 774, Syl. ¶ 3, 915 P.2d 774 (1996). Roseborough has no equal protection claim because he is not similarly situated with persons affected by the 1996 amendments. As long as Roseborough is treated the same as other offenders who were sentenced under the applicable law in effect at the time they committed their crimes, there is no constitutional violation. Extending retroactive conversion to some offenders by the 1993 legislature was an act of grace. Offenders are not entitled to automatic conversion of their sentences by the passage of every change in the sentencing laws.
The legislature has the power to change the penalty for criminal offenses and to apply those lessened or heightened penalties prospectively to criminal acts committed on or after the effective date of the new changes. State v. Sutherland, 248 Kan. 96, 107-08, 804 P.2d 970 (1991). Such changes do not create equal protection claims for offenders who were properly sentenced under previous law.
In Chiles, this court found:
“In looking at the [1993] limited retroactivity provision and the sentencing grids, it is apparent that the legislature intended to give the benefits of retroactivity only to those prisoners who had been convicted of less serious offenses. The legisla ture’s objective was to achieve the reduction of prison overcrowding by the early release of some prisoners while concomitantly promoting the public safety by limiting the early release to less serious offenders. It is reasonable to assume that the interest of the public safety of the community underlay the legislative decision to limit the scope of the retroactivity provision to less serious offenders. The limited retroactivity provision is reasonable in relation to its subject, was adopted in the interest of the community, and is not violative of [equal protection or] due process.” 254 Kan. at 903.
The legislature did not intend to guarantee any particular offender that his or her sentence would be subject to modification and conversion after 1993. Presumably, the prison overcrowding which existed in 1993 has been somewhat alleviated by the sentence conversions and the application of optional nonimprisonment granted to offenders in 1993. Roseborough’s claim of an equal protection violation is without merit.
We sustain the State’s appeal on a question reserved. We reverse the judgment of the trial court.
Lockett, J., not participating.
Richard W. Wahl, Senior Judge, assigned.
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The opinion of the court was delivered by
West, J.:
The defendants were adjudged guilty of contempt for having violated an injunction, and appeal, claiming that whatever they did was upon other premises than those covered by the order. In September, 1908, a petition was filed against certain defendants alleged to be maintaining a nuisance on lots 30, 31 and 32 in block 44, city of Leavenworth, and charging that on such real estate a two-story brick business building, known as 301 Shawnee street, was located, in which building such nuisance was maintained. A temporary injunction was granted by which the defendants were enjoined from maintaining a nuisance on lots 30, 31 and 32 in block 44, the order embracing none but the defendants, their agents, employees and successors. In April, 1909, a permanent injunction was granted describing lots 30, 31 and 32 in block 40 and adjudging that a nuisance had been maintained thereon, and enjoining the defendants, their agents and all persons whomsoever from keeping a nuisance on such premises. A part of the order was that the temporary injunction be made permanent and perpetual. In the accusations these defendants were charged with having, in violation of the permanent injunction, maintained a nuisance on lots 30, 31 and 32, block 44, and in the buildings and places appurtenant thereto.
It is quite clear that the original temporary injunction covered certain lots in block 44 and while it is very likely that the permanent injunction was intended to cover the same lots it in fact covered lots of the same number in block 40, the finding of the court being that the defendants had maintained a nuisance, not on block 44, but on block 40, and hence they were permanently enjoined from continuing the same. The fact that the order included making the temporary injunction permanent indicates more strongly a mistake in the number of the block, unnoticed, than an intention to decree a permanent injunction against one piece of property, and a temporary injunction against another on which no nuisance had been found to exist.
In case No. 19,442, it having been shown that the St. Elmo hotel was situated on block 44, leave was asked to amend the accusation to conform to the proof and such leave was granted, and it appears that upon showing to the court that the original petition prayed for an injunction on block 44 and that the original entry showed a judgment against block 40 an order was asked nunc pro tunc.
“To the nunc pro tunc order the attorney for the appellants objected and insisted that the appellants be dismissed, to which the court ruled the contrary and held that the injunction was on lots 30, 31 and 32 in block 44, Leavenworth city proper.”
We suppose this means that the trial court granted the order nunc pro tunc and amended the journal entry to cover block 44 only, and we do not see how the defendants in No. 19,442 have been materially prejudiced. No such suggestion appears in case No. 19,441, but the accusations in both cases were heard on the same day and the corrected journal entry — if any correction was necessary — gave the defendants full opportunity to meet the real issue without mistake or misunderstanding. At all events, the temporary injunction correctly described the lots and the permanent injunction expressly made the temporary order perpetual, and as there was evidence to support the accusations in other respects the defendants can not escape because the lots were not twice correctly described in the journal entry. (The State v. Porter, 76 Kan. 411, 91 Pac. 1073; The State v. Fishback, 79 Kan. 679, 100 Pac. 656; The State v. Pittsburg, 80 Kan. 710, 104 Pac. 847, 25 L. R. A., n. s., 226, 133 Am. St. Rep. 227; The State, ex rel., v. City of Coffeyville, 90 Kan. 164, 133 Pac. 711; 23 Cyc. 856; Note, 20 Ann. Cas. 118.)
The judgments are therefore affirmed.
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The opinion of the court was delivered by
Mason, J.:
Silas N. Marsee was convicted of rape on the complaint of his stepdaughter, who was under eighteen years of age. He appeals.
The defendant’s own daughter was called as a witness in his behalf. She testified that she had never seen or heard of anything out of the way between her father and the complaining witness, although she had been closely associated with them during the period covered by the charge. On cross-examination she returned a negative answer to the question whether on one occasion, in the presence .of the complaining witness and the defendant’s wife, her father had not struck her for accusing him of having attempted improper liberties with herself. In rebuttal the state was permitted to introduce the evidence of the complainant and her mother to the effect that such an occurrence had taken place. The defense maintains that this was prejudicial error, because it allowed a showing, by hearsay evidence, of misconduct of. the defendant unrelated to that for which he was on trial. The state seeks to justify the ruling on two grounds: (1) that the evidence in question tended to rebut the statement of the defendant’s daughter that she had seen nothing “out of the way” between him-and the complainant, the episode in point being of that character; and (2) that the occurrence helped to explain the silence of the complainant as to her ill treatment, by showing that she had good reason to fear personal violence if she revealed the defendant’s misconduct. This court is of the opinion that the evidence was not admissible upon either ground, that it introduced a collateral issue strongly tending to arouse passion against the defendant, and that it was therefore so clearly prejudicial as to require the setting aside of the verdict.
Other questions presented may arise again upon another trial, and so require to be now determined. The prosecuting witness was permitted to testify that her mother had told her that the defendant had threatened their lives if they appeared against him. Complaint is made of the admission of this testimony,* on the ground that it was hearsay. Prior to the present prosecution the defendant was arrested upon the same charge. At a first preliminary hearing the complaining witness swore that the complaint was untrue, and he was discharged. He was rearrested later, and at the trial the complaining witness explained her prior testimony by saying that it was induced through fear of the defendant, caused by what her mother had told her. Inasmuch as the complainant had previously given evidence exactly to the contrary of the story she told at the trial, it was competent for the state, for the purpose of ac counting for the discrepancy, which was certain to be brought to the attention of the jury, to' show that she had been told that the defendant had threatened to kill her if she gave evidence against him. The evidence was competent to show the probable state of mind of the witness. Viewed in that light it was not hearsay, the essential fact to be proved being, not that the defendant had actually threatened the witness, but that she had reason to believe that he had done so. The same objection is made to evidence given by the mother of the complaining witness as to a conversation with her daughter in which she advised her to leave the state to avoid appearing against the defendant. This was competent upon the ground already stated. The jury might well have been instructed that the evidence referred to was to be considered by them only as tending to show the probable state of mind of the complaining witness, but as no instruction to that effect was asked the omission to give it was not error. (1 Wigmore on Evidence, § 13; Sweet v. Savings Bank, 73 Kan. 47, 84 Pac. 542.)
Obj ection is made to the cross-examination of the defendant concerning some prior domestic troubles, but we do not regard the matters that were brought out as seriously prejudicial.
The defendant’s wife was allowed to testify that shortly after his first arrest, in the course of a conversation with her, he advised her to take her daughter and leave the country, and threatened to kill them both if they did not do so. This is objected to on the ground that the conversation was privileged as a confidential communication between husband and wife. In this state evidence of confidential communications between husband and wife may be received in a civil action if it can be given by a competent witness. (The State v. Buffington, 20 Kan. 599, 615.) The reason why one spouse may not testify to confidential communications with the other is because of the personal disability imposed by the law — a want of capacity in the individual by whom the fact is sought to be shown. The provision of the civil code does not apply in criminal cases. (The State v. Buffington, supra; The State v. Pearce, 87 Kan. 457, 124 Pac. 814.) “While the civil code provides that neither the husband nor wife shall, as a witness, furnish evidence concerning confidentihl communications, yet it does not provide that others who may happen to be possessed of such communications shall not do so; and while the criminal code provides that the provisions of law in civil cases relative -to ‘compelling the attendance and testimony of witnesses,’ and ‘their examination,’ ‘shall extend to criminal cases,’ yet it does not provide that the provisions of law in civil cases relating to the competency of witnesses and the competency of evidence shall extend to criminal cases.” (The State v. Buffington, 20 Kan. 599, 615.) The criminal code provides in set terms that no person shall be rendered incompetent to testify by reason of being the husband or wife of the accused. (Crim. Code. § 215.)
The information contained two counts. The state’s evidence tended to show a series of acts of sexual intercourse extending over a considerable period. At its conclusion a motion to require an election was sustained, and the state elected to rely on the last two acts testified to, one being in March, 1913, and the other in February of that year. The court instructed that a conviction could be had on each count, if an act of sexual intercourse had been proved, being the act on which the state had elected to rely for a conviction. This is objected to on the ground that it in effect allowed the jury to determine on what acts the state had elected to rely. A reasonable interpretation of the entire charge, however, seems to free it from this objection. The court also gave an instruction in general terms that the state was not confined to the precise dates alleged, but that a conviction might be based upon proof of an offense committed at any time within two years. This is objected to as in effect wiping out the election, and allowing the jury to base a verdict on any act testified to. The language chosen for the instruction might well have been framed so as to guard against any possible misapprehension on this point, but we can not believe, under all the circumstances, that there is any likelihood of the jury having actually been misled. The acts relied upon were identified, not only by their being the last ones testified to, but by the months in which they took place.
It was shown that the complaining witness had become pregnant. Some of the evidence tended to show that she had had sexual intercourse with another than the defendant. An instruction was given to the effect that the fact of such intercourse would not constitue a defense. The defendant asked the court to instruct that the jury had a right to consider any evidence tending to show that the complainant had had sexual intercourse with other men at or about the time she claimed to have become pregnant. The request was refused and complaint is made of the ruling. The evidence was before the jury. Its bearing was sufficiently apparent so that an omission to comment on it specifically was not error.
There was evidence tending to show that the defendant attempted to escape arrest by flight. An instruction was asked to the effect that such attempted escape was not proof of guilt, and another to the effect that it was not to be considered as any evidence against him. The first of these instructions was doubtless sound, but hardly vitally necessary. The second was unsound, for the matter was one to be considered by the jury, with all the other circumstances, for such light as it might throw upon the issue.
An instruction was asked and refused to the effect that if the jury believed that any witness had attempted to induce any other witness to swear falsely, this should be taken into consideration in weighing the testimony. The omission of such an instruction can not be regarded as error. The jury can hardly have failed to give effect to a circumstance of such obvious importance, if they found it to exist.
The judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Porter, J.:
The petitioner, who has been confined in the penitentiary since the 17th day of August, 1911, claims that his imprisonment is illegal.
He was charged in the district court with the crime of rape and entered a plea of guilty of an attempt to commit rape. The information was filed under section 31 of the crimes act, which provides that every person who shall be convicted of rape “shall be punished by confinement and hard labor not less than five years nor more than twenty-one years.” (Gen. Stat. 1909, §2519.) Section 283 of the crimes act reads:
“Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows:
“Second, if the offense so attempted be punishable by confinement and hard labor, the person convicted'of such attempt shall be punished by confinement and hard labor for a term not exceeding one-half of the longest time of imprisonment prescribed, upon a conviction for the offense so attempted.” (Gen. Stat. 1909, § 2783.)
Under this section the district court sentenced the petitioner to be confined at hard labor for a period not to exceed ten and one-half years, or until released according to law. His contention is that he should have been sentenced for felonious assault, under section 41 of the crimes act, which reads:
“Every person who shall be convicted of an assault with an intent to commit any robbery, rape, burglary, manslaughter, or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by confinement and hard labor not exceeding five years, or by imprisonment in the county jail not less than six months.” (Gen. Stat. 1909, § 2529.)
The real controversy turns upon the question whether or not there exists a distinction between the crime of attempt to rape and the crime of assault with intent to rape, and that question has been answered against the petitioner’s contention in a number of decisions. (The State v. Frazier, 53 Kan. 87, 36 Pac. 58; The State v. Russell, 64 Kan. 798, 68 Pac. 615; The State v. Franklin, 69 Kan. 798, 77 Pac. 588; The State v. Custer, 85 Kan. 445,116 Pac. 507; The State v. Guthridge, 88 Kan. 846, 129 Pac. 1143.)
In The State v. Russell, supra, the court in the opinion used this language:
“While it is true that the offense of ‘attempting to commit’ the crime of rape upon a female under the age of eighteen years, and the crime of ‘assault with intent’ to commit the same offense, are recognized by the adjudicated cases in this state as distinct offenses, yet the element of force in each being, by virtue of the statute, eliminated, while the form of thé charge remains distinct, the evidence to sustain either must of necessity become the same.” (pi 800.)
In The State v. Custer, supra, it was said in the opinion:
“Assault with intent to commit an offense is sometimes spoken of as an attempt to commit such offense. There is a marked distinction,- however, between a charge under section 41 and one charging an attempt to commit an offense under section 283 of the crimes act (Gen. Stat. 1868, ch. 31, § 283, Gen. Stat. 1909, §2783).” (p. 446.)
In The State v. Guthridge, supra, the appellant was convicted of the crime of attempt to rape, and claimed that the court should have instructed the jury under section 41. It was held, however, that while the offense defined in section 41 is to some extent similar to the offense defined in section 283, nevertheless they involve different elements and are separate and distinct offenses. The same question has been passed upon by a number of courts, which have held that the two offenses are separate and distinct. (State v. Berzaman, 10 Wash. 277, 38 Pac. 1037; People v. Gardner, 98 Cal. 127, 32 Pac. 880; State v. Godfrey, 17 Ore. 300, 20 Pac. 625.)
It follows that the writ must be denied and the petitioner remanded.
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The opinion of the court was delivered by
Mason, J.:
The legislature of 1913 created the office of state fire marshal, and provided that for the purpose of maintaining his department hie might levy an annual tax on each “fire insurance company” doing business in the state, not to exceed “three-eighths of one per cent of a sum equal to the gross cash receipts as premiums of such company on all business transacted by it in the state of Kansas during the year next preceding.” (Laws 1913, ch. 312, § 13.) The St. Paul Fire & Marine Insurance Company, besides insuring against fires, writes hail, tornado and marine insurance. A tax was levied against it upon the basis of the total business done by it in the state. It paid the full amount, protesting, however, that it was liable only upon the basis of its receipts from premiums received on account of policies issued which insured against fire. It then sued to recover the amount it contended to be illegal. A demurrer to its petition was sustained, and it appeals.
The whole controversy is as to the meaning of the words “on all business transacted by it in the state of Kansas during the year next preceding.” The state contends that they are too plain to require interpretation ; that there is no escape from their literal import— that fire insurance companies are to pay the prescribed tax based on the amount received for all the insurance written by them, whatever the character of the risk insured against. The plaintiff maintains that the tax should be calculated upon the amount derived from the issuance of policies which insure against loss by fire. Obviously the reason why fire insurance companies were singled out, and why they, and no others, were subjected to the payment of this tax, was because the maintenance of the department of the fire marshal was regarded as conferring a special benefit upon them, not shared by others, through the reduction in the losses occasioned by fires. Apart from any question of the power of the legislature to impose such a peculiar burden in the absence of any compensating benefit, it is clear that the two matters were in fact associated in the mind of the draftsman of the bill. Interpreting the entire act in' accordance with its spirit. as evidenced by the portions of the section quoted, we think it must be said that the legislature intended the tax to be measured by the amount of premiums received by fire insurance companies from their business as such, that is, from writing policies which insured against fire. Fire insurance is a distinct line of business. A company engaged in it may also, where no legal obstacle exists, write insurance against hail or tornado.es, or engage in any other business; but when it does so it is not, strictly speaking, operating as a fire insurance company. . The distinction would be immaterial .for many purposes. But it is very important where losses by fire are an essential element of the matter under consideration,' as in this case. We conclude that the demurrer to the petition should be overruled.
We think this conclusion justified on the grounds, already stated, but it is reinforced by other considerations. In several states statutes of substantially similar , phraseology have been in force for some years. It is said in the plaintiff’s brief that under none of them has an attempt ever been made to tax the business of hail, tornado or .marine insurance, so far as counsel have learned, although the scope of the inquiry made is not indicated. In the state’s brief no instance to the contrary is cited. The practical prior construction given to the law elsewhere is not controlling, but is a matter to be weighed in determining the intent of the Kansas legislature. Again, plausible objections upon constitutional grounds can be made to an attempt to tax the proceeds of hail, tornado or marine insurance, to sustain a department devoted to the reduction of losses by fire, and it is said (although the doctrine seems questionable) that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise, and by the other of which such questions are avoided,” the duty of the court is to adopt the latter. (United States v. Delaware & Hudson Co., 213 U. S. 366, 408.)
The judgment is reversed, with directions to overrule the demurrer to the petition.
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The opinion of the court was delivered by
West, J.:
This was an action to recover from two adjoining townships in two adjoining counties damages caused by a defective bridge on the road running between such muncipalities. The bill of particulars alleged, in substance, that the highway was at all times therein mentioned open for travel, and kept open by such townships; that the bridge was kept, maintained ánd allowed to remain without guardrails or protection of any kind on either side, and in a dangerous and defective condition and without proper stringers and with loose and rotten planks, for more'than one year, with the knowledge and consent of the townships. On appeal to the district court from a judgment rendered against the townships the plaintiff in his opening statement to the jury said, among other things, that it was expected to show that the injury was caused by reason of the defective highway and defects in the bridge which were sufficient neglect on the part of the townships to cause them to respond in damages, and that the trustees of the two townships were informed or had notice thereof. An objection to testimony on the ground that no cause of action was stated in the bill of particulars or shown by the opening statement was made and sustained, and judgment was rendered in favor of the defendants, and the plantiff’s request to amend by making each of the counties a party was denied.
Section 658 of the General Statutes of 1909 provides that recovery may be had from a county for damages when caused by a defective bridge constructed wholly or partly by such county, and in any other case such recovery may be had front the township. Section 659 requires the township trustees to have placed on- each bridge, of a span of ten feet and over, erected by any township or road district upon any public highway in their respective townships, good and sufficient guardrails. Sections 7308 and 7309, reenacted in section 16 of chapter 248 of the Laws of 1911, provide, in substance, that a road located on a county or township line, although deflected not exceeding forty rods, shall be improved at the expense of the counties or townships contiguous thereto as the case may be. In Cloud County v. Mitchell County, 75 Kan. 750, 90 Pac. 286, it was said that these provisions cast the expense of improving such roads’ upon the contiguous municipalities, and that when the bridge in question became out of repair the duty of restoring it rested equally upon each county. No question of township liability was there involved, (pp. 757, 758.) This case hinges upon the point whether or not the bridge was constructed wholly or partly by the counties so as to make them liable under section 658, or whether this is one of the “other cases” in which recovery may be had from the townships. The question for determination, however, is whether or not the pleading and opening statement wholly fail to charge the townships with liability. It is true that when one sues by virtue of a statute which'defines the prerequisites he must bring himself within the terms of such statute. The facts may be such as to render the townships liable, and not only did the plaintiff sue them, thereby evincing a disposition to hold them responsible for the amount claimed, but he stated the things already indicated from which, if true, the fair inference could be drawn that the townships had built or assumed responsibility for the bridges and failed in their duty to keep them in proper condition. Neither the abstruse science of common-law pleading nor the practical modern rules of code pleading are required to be observed in justice court. It is sufficient if the bill of particulars inform the defendant clearly, though informally or rudely, what the plaintiff claims, for the province of these courts is to settle neighborhood disputes, often without the aid of attorneys. (Lobenstein v. McGraw, 11 Kan. 645, 648; M. K. & T. Rly. Co. v. Brown, 14 Kan. 557; K. P. Rly. Co. v. Taylor, 17 Kan. 566; Railroad Co. v. Hoff, 76 Kan. 506, 92 Pac. 539.)
(See, also, Roberts v. Pendleton, 92 Kan. 847, 142 Pac. 289; and especially the case of Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557.)
The request to make the counties parties, if granted, might have worked a speedier end of the controversy than can now be had, but its refusal was not material error. But as against the objections to the introduction of testimony, we hold that the bill of particulars stated a cause of action and was strengthened rather than weakened by the opening statement.
The judgment is therefore reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Benson, J.:
In an action to foreclose a mortgage it was alleged in the petition that the defendant, Edna S. Wood, claimed to own an interest in the mortgaged premises, the nature of which was unknown to the plaintiff, but which was inferior to his rights. The appellant demurred to the petition and the demurrer was overruled. Error is assigned upon this ruling. The mortgagors made default.
The mortgage contained conditions whereby the mortgagors agreed substantially as follows: first, to pay a promissory note which was described; second, to pay taxes when due and insurance premiums as provided in a following clause; third, to keep buildings and improvements in good repair; fourth, to procure and maintain a policy of insurance on the buildings to the amount of $2500, to be held by the mortgagee as additional security. The fifth condition, here recited in full, is:
“Said parties of the first part hereby agree that if the maker of said note shall fail to pay or cause to be paid, any part of said money, either principal or interest according to the tenor and effect of said note and coupons, when the same shall become due, or to conform to or comply with any of the foregoing conditions and agreements the whole sum of money hereby secured shall, at the option of the legal holder or holders thereof, become due and payable at once without notice.”
Nothing was due on the note when this suit was com- . menced, except as provided in the mortgage.
The petition recites the covenant to insure, and then states:
“And this plaintiff complains that defendants have failed to keep their covenant in this behalf, to the jeopardy of the rights of this plaintiff in the premises.”
The contention of the appellant is that the petition showed upon its face that the action was prematurely brought.
As the mortgage provided that upon failure to comply with any of the conditions the whole sum of money should' become due, the agreement to insure being one of the conditions, and the breach of the condition being expressly alleged in the petition, a cause of action was stated.
The appellant cites Lewis v. Lewis, 58 Kan. 563, 50 Pac. 454, where it was held that where a mortgage contains covenants to pay money and to pay taxes, in order to make the whole debt due before the time for payment stated in the note, there must be a default both in the payment at the time stated, and in the payment of taxes. The covenants here, however, are in the disjunctive, and default in either is sufficient under the plain stipulations of the mortgage. It was said in the Lewis case that it was competent for the parties to stipulate that the mortgage should not be foreclosed until the happening of two or more conditions. It is equally competent for the parties to stipulate that it may be foreclosed upon the happening of one condition, and they did so stipulate in this mortgage.
The contention is that the petition was demurrable because it contained no allegation that the defendant Schroll owned the property when he made the mortgage. Short v. Nooner, 16 Kan. 220, is cited as supporting this view. In that case there was a failure to allege that the claim, interest or lien which the plaintiff sought to foreclose was junior or inferior to his mortgage lien. The defect in the petition in that case does not appear here.
Objection is made to the judgment rendered after the demurrer was overruled because it purports to bar the defendants from redemption on the confirmation of the sale. In one clause of the judgment the right of any defendant to redeem within eighteen months after the sheriff’s sale is expressly declared. In a subsequent clause it is declared that the defendants and all persons claiming under them shall be barred and foreclosed of all title, interest and equity of redemption upon confirmation of the sale. Considering these clauses together, it is held that the right to redeem in eighteen months is given by the first clause referred to, and that the general clause providing for foreclosure on confirmation of sale does not abridge that right. It is probable that if attention had been called to the language of the judgment in respect to redemption it would have been corrected. The interpretation now given to the judgment makes any correction unnecessary.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
This was an action to recover $111 taxes paid by the plaintiff railway company under protest in 1911. From an adverse judgment the company appeals. The sole question presented is the meaning of section 4 of chapter 245 of the Laws of 1909, relating to the limit of the levy (Gen. Stat. 1909, § 9397). The assessed valuation of the property in Marion county was $39,990,591. The section in question provides that in any county having an assessed valuation in excess of thirty-one million dollars, up to and including forty million dollars, “the maximum levy shall be determined by reducing the levy of one and forty-six hundredths mills allowed upon a valuation of thirty-one million dollars, three hundredths of one mill for each one million dollars in excess of thirty-one million dollars, and any rate of levy so determined shall be the maximum rate of levy for all assessed valuations which are fractions of the next higher one million dollars of valuation.” Similar provisions are found in other sections of the act, and it is apparent that for each million dollars exceeding thirty-one there must be deducted from one and forty-six hundredths mills three hundredths of a mill, and that by this calculation the maximum rate of levy must be determined. There is no question that the number of full millions in excess of thirty-one is eight, so that from the one and forty-six hundredths there must be deducted twenty-four hundredths, leaving one and twenty-two hundredths. The only real point of dispute is as to the rate for the fraction of the additional million, which the company claims should be treated as a full million and three one-hundredths of a mill levy be deducted on account thereof; but the concluding sentence of the section prevents this, for it expressly requires that the rate of levy so determined as already set forth “shall be the maximum rate of levy for all assessed valuations which are fractions of the next higher one million dollars of valuation.” Section 2 (Gen. Stat. 1909, § 9395) provides that in case of an assessed valuation of ten million dollars or less the levy shall not exceed two and one-half mills on the dollar of such valuation, and section 3 (Gen. Stat. 1909, § 9396), that in casé the valuation is more than ten million and not more* than eleven million dollars the levy shall not exceed two and one-fourth mills on the dollar of such valuation, but further, that when the assessed valuation is more than eleven million dollars, up to and including thirty million dollars, the maximum levy shall be determined by a certain reduction “for each one million dollars in excess of eleven million dollars.” A similar provision is found in sections 4, 5, 6, 7, 8', 9 and 10 (Gen. Stat. 1909, §§ 9397-9403), thus making it plain that the reduction in each case is to be for each million dollars in excess of the given amount and not for each million and fraction thereof; and in each case it is also plain that the levy fixed and determined is to apply to the fraction of the next higher million dollars of valuation.
This is in accord with the action taken by the taxing officer and that of the judgment of the court below, which is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This appeal is from a judgment upon a claim for commissions for soliciting life insurance.
On October 9,, 1907, the defendant insurance company made a written contract with the plaintiff authorizing him to solicit insurance upon commissions to be paid according to a schedule of rates for different classes of policies. The agreement contained the following clause:
“A renewal commissions of 5 per cent on second to ten years of insurance inclusive, on an annual production of $50,000.”
The following rules were attached to the agreement, forming a part of it:
“1st. The agent must work exclusively for The Central Life Insurance Company in all business pertaining to life insurance during the continuance of this agreement.
“7th. This contract is made subject to such modification by the Company as regards commissions as may hereafter be deemed necessary.
“8th. Either party hereto may cancel this agreement by giving the other fifteen days written notice.”
A supplementary agreement of the same date provided that the plaintiff should “have the right to appoint subagents and to receive the overwriting first year’s commission and renewals on business produced by said subagents.”
The plaintiff worked under these agreements until January 14, 1911, when at a conference at Fort Scott with H. L. Stout, president, and R. S. Tiernan, manager of agencies of the defendant company, the points for a new contract were agreed upon, which the president was to have written out and sent to the plaintiff for his signature. The plaintiff then commenced work under the new agreement, and received from time to time payments amounting to $551.20 upon that account. On February 27, 1911, he wrote from Plains, where he was carrying on his work of canvassing, to the secretary of the company:
“Please send my contract to Plains, Ks. at once and it will reach here before I leave.”
On March 1 the secretary enclosed the proposed contract as prepared without signatures, in a letter to the plaintiff, in. which he wrote:
“Your letter of the 27th inst. received.
“In the absence of Mr. Tiernan we in his place enclose herewith for your signatures contract in duplicate. Sign and return both copies, after which one finished copy will be returned to you.”
The instrument inclosed in this letter was as follows:
“AGREEMENT.
“Entered into this Sixteenth day of January, 1911, . between The Kansas Guaranty Company, party of the first part, and S. M. Babbit, of Beloit, Kansas, party of the second part:
“Witnesseth: That in consideration of the mutual covenants hereinafter expressed, the parties hereto covenant and agree, each with the other, as follows, to-wit:
“1. Said second-party shall devote his entire time and attention to the business of soliciting for applications for life insurance in The Central Life Insurance Company, and appointing agents to solicit for business for said Company, the contracts of such agents to provide for maximum commissions ranging from fifty to seventy per cent of the first annual premiums, such contracts to be approved by said first party.
“2. Said second party shall prosecute the work according to instructions received from said first party from time to time.
“3. Said second party shall be paid as compensation for his services a Salary of One Hundred Dollars per month and actual traveling expenses when away from home — such as railroad fare and hotel and livery bills.
“4. Said second party shall receive a commission of twenty per cent of the gross premiums collected on all personal business obtained either alone or with other agent, paid-for basis.
“5. Said second party shall receive a five per cent overwriting commission on all personal business produced by agents appointed by him, paid-for basis, said overwriting commission to be paid to said second party on or about January 15, 1912, for business produced and paid for during the year 1911.
“6. It is mutually understood and agreed that this agreement effects the termination of all previous contracts entered into between the parties hereto, or between The Central Life Insurance Company and said Babbit, except that said Babbit is to retain his renewal interest in business written prior to January 1, 1911, so long as he remains in the employ of said first party. It is definitely understood, however, that said Babbit shall ^ have no interest whatever in the renewal premiums on business written after December 31,1910.
“7. The compensation outlined herein is the only compensation said second party is to recieve, unless by signed supplementary agreement entered into between the parties hereto.
“8. This contract shall take effect as of the date hereof and continue in force until terminated by either party giving written notice to that effect.
“In Witness Whereof, The parties hereto have set their hands the day and year first above written.”
The recital of the Kansas Guaranty Company as the party of the first part in this contract is thus explained: That corporation was the general agent of the defendant in charge of writing insurance. Its president was agency manager of the defendant. It seems that remittances were forwarded from time to time by that corporation, signed by it by R. S. Tiernan, president of the guaranty company, and the acts of Mr. Tiernan, whether as manager of the defendant or president of the Kansas Guaranty Company, relating to the business now under consideration should be considered as the acts of the defendant.
After receiving this instrument the plaintiff, on March 15, 1911, wrote to the secretary of the defendant :
“In regard to those contracts sent me to sign will say that the reason I have not returned them is because I wanted to see Mr. Tiernan and expected to see him before this time. If he comes out soon I wish to see him in regard to it. However, I will assure you that it is all right exactly as agreed on. If you don’t object I will hold them until he comes out which I think will be soon.”
He did not return the instrument, nor suggest any changes, nor in any manner indicate that it was not drawn in accordance with the verbal agreement, but continued his work, receiving checks for expenses as before, until May 7, 1911, when he entered into the employment of another life insurance company. About May 24 there was a settlement for completed business. Some time afterwards this action was commenced to recover commissions. In the first cause of action the plaintiff alleges that he produced more than $50,000 worth of business each year for 1907, 1908, 1909, and 1910; that on January 1, 1911, defendant company had paid to him the sum of $720.42 for renewal premiums on business written by him prior to December 1, 1909, and renewed between December 1, 1909, and December 31, 1910; that there was due him from defendant on January 1, 1912, the sum of about $900 for renewal premiums under his contract for insurance written by him prior to January 1, 1911, and renewed during the year 1911. In the second cause of action he alleges that there was due him the sum of $900 for renewals paid to the company during the year 1912 upon business written by him prior to January 1, 1911. In the third cause of action he alleges that there was a balance due him upon account under his last contract of $503.80, a part of which he claimed was for renewals upon premiums paid to the company between January 1, 1911, and May 24, 1911. Upon the trial it was agreed by the parties that the plaintiff was entitled to recover from the defendant the sum of $120.71 on the third cause of action set out in his petition, and that this amount consisted of the sum of $104.12 as a' balance on renewal commissions from January 14, 1911, to May 24, 1911, and the further sum of $16.59 to cover 5 per cent commission on paid-for business written by plaintiff’s agents under the last contract. The controversy remaining to be determined by the trial court was the right of appellee to recover upon his first and second causes of action.
The material findings of the referee are:
“2. Under the terms of this contract (the original agreement) the plaintiff worked for defendant until January 14, 1911, writing a sufficient amount of paid-for insurance during said time, through subagents and self, to entitle him to receive from said defendant a renewal commission of five per cent on all premiums paid to or collected by said defendant, on 2nd and 10th years inclusive, of the insurance so written, as part compensation for services so rendered for defendant.
“3. Defendant paid or settled with plaintiff for all renewal commissions so due to plaintiff up to January 1, 1911.
“4. Five per cent commission on all premiums paid upon renewals from May 7,1911, to December 31, 1911, on insurance written by the plaintiff or his subagents prior to January 1, 1911, amounted to the sum of $464.52, and five per cent commission upon all renewal premiums paid on such insurance during the year 1912 amounted to the sum of $632.61.
“6. On January 14, 1911, plaintiff went to the office of defendant at Fort Scott, Kansas, and there had a conversation with the president of the defendant company, Mr. H. L. Stout, and the agency manager of said company, Mr. R. S. Tiernan, plaintiff stated he had become tired of working under his old contract and asked for a new contract. He stated he would work and go out in the field again for $100.00 per month and 20 per cent commission on all business written alone or- with other agents, and 5 per cent commission on any business written by agents appointed by him, and his expenses and traveling expenses. Absolutely nothing was said about changing the conditions of the original or former contract relative to renewal commissions of plaintiff thereunder, nor of the cancellation of same or his rights thereunder. Mr. Stout, the president of the defendant company, stated to Mr. Babbit that he would take down the notations with the understanding they have this embodied into a contract and sent to him later.
“9. Plaintiff commenced working for defendant under such verbal agreement and continued in its employ until May 7, 1911, when he left its employ. During the time of such employment and up to June 1, 1911, plaintiff received checks in the sum of $551.20 upon his account with said defendant.
“11. Plaintiff did not sign said contracts, holding same to confer with the agency manager, as per his letter of March 15, 1911, to Mr. Lyon, nor did defendant ever sign said contracts or ask for same from plaintiff. Plaintiff did not waive any of his rights to the five per cent renewal commissions already earned under his contract of October 9, 1907, with said defendant company.”
As matter of law the referee concluded that the plaintiff was entitled to:
“Five per cent commission on all renewal premiums paid to or collected by defendant on all paid-for insurance written by plaintiff or his sub-agents prior to January 1, 1911, for the years 1911 and 1912, as part compensation for securing the business, writing the policies and services rendered up to said time of January 1, 1911, as compensation already earned and of which he could not be deprived by the defendant company.”
The plaintiff testified that it was agreed at the conference at Fort Scott, when the new agreement was made, that he should retain his renewal interest in the old contract. The evidence, on the part of the defendant, was that the company was to pay on these renewals so long as he continued with the company, and that the plaintiff said that would be acceptable. As we have seen, the referee found that:
“Absolutely nothing was said about changing the conditions of the original or former contract relative to renewal commissions of plaintiff thereunder, nor of the cancellation of same or his rights thereunder.”
The defendant’s contentions are:
“First, that under the original contract appellee was only entitled to renewal commissions so long as he remained in appellant’s employ, and produced -$50,000 worth of business per year, and second, that he accepted the terms of his second contract with the Company which provided in express terms that Mr. Babbit should retain his renewal interest in business written prior to January 1, 1911, only so long as he remained in the employ of the Company.”
. If the original agreement was entirely superseded by the new one, it is only necessary to determine what the new one was in order to decide this controversy.
The plaintiff insists that the part of finding No. 6 relative to renewal commissions under the old contract, made upon conflicting evidence, is final within well-settled rules followed in many decisions. Construing this finding that at the making of the new agreement nothing was said about changing the conditions of the old contract relative to renewal commissions as a finding that such a change was not agreed to, although considered, the further question remains whether the plaintiff is estopped by his subsequent conduct from denying that such change was made, or to be more exact, whether his assent to the instrument containing such change was proved. The oral agreement was to be reduced to writing. An instrument was accordingly prepared purporting to embody all its terms, which, at the plaintiff’s request, was sent to him on March 1. On March 15, after full opportunity to examine it, and after he had, in fact, examined it, he wrote to the secretary: “I will assure you that it is alright exactly as agreed on.” The clause in question was plain: “This agreement effects the termination of all previous contracts . . . except that said Babbit is to retain his renewal interest in business written prior to January 1, 1911, so long as he remains in the employ of said first party.” That he noticed and considered this provision is shown by the fact that he testified, “I would n’t sign the contract with a joker in it making me forfeit my renewals.” With full knowledge that the company claimed that commissions for renewals should be retained only while he remained in the service of the company, he continued to work under the new agreement, receiving remittances under it, accepting all its benefits, but secretly intending to repudiate one of its material provisions, although .expressly stating that it was all right in every particular. It is not always necessary that in order to be bound a party should sign a written instrument purporting to contain his agreement. A signature is the usual evidence of assent, but assent may be shown in other ways, as in this instance, by a collateral writing. No accident, fraud, or mistake, or the like, is shown or even claimed. One may not in such circumstances assure the other contracting party of acquiescence, hold the instrument in possession without objection, continue to work under it, and receive its benefits until another opportunity of employment is open, and then be allowed to repudiate it. (Sentney v. Interurban Railway Co., 90 Kan. 610, 135 Pac. 678; 3 Parsons on Contracts, 9th ed., p. 4; 9 Cyc. 299; De Belli v. Thomson, 3 Beavan, 469; Sanders et al. v. P. B. F. Co., 144 N. Y. 209, 39 N. E. 75.)
The findings of the referee Nos. 10 and 11 are in conflict. The plaintiff’s letter of March 15 and his subsequent conduct prove his assent to the instrument received and retained by him without objection. The basic facts found by the referee must prevail over the general conclusion that there was no waiver or assent. (The State v. Kirmeyer, 88 Kan. 589, 129 Pac. 11.14.)
The judgment is reversed, and the cause is remanded with instructions to render judgment for the plaintiff for $120.12, upon the third cause of action, as agreed to by both parties.
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The opinion of the court was delivered by
Porter, J.:
In the district court the plaintiff recovered judgment in an action upon a certificate of insurance. The'defendant appeals.
The defendant is a fraternal insurance association with its supreme office at Des Moines, Iowa. Its local lodges are called “homesteads.” Jennie Edmiston became a member of the Coffeyville homestead in June, 1907, and the defendant issued to her at that time a certificate of insurance for $1000, payable at her death to her brother, Thomas Edmiston, who was named as beneficiary. Jennie Edmiston died on November 5, 1912, and the plaintiff’s right to recover upon the certificate of insurance depends upon whether she was a member of the order in good standing at the time of her death. The defendant claims that she was suspended on November 1, 1912, for nonpayment of the assessment for the previous month of October.
The plaintiff's contention is that the defendant is estopped from claiming a forfeiture of the certificate in controversy.
The by-laws provide that a member who has failed to pay his assessment on or before the last day in the month in which assessments are due shall be suspended without notice and so remain suspended until reinstated as provided. Another by-law provides that a member who has been in suspension for three months shall be reinstated if in good health by filing a health certificate and the payment of delinquent dues and assessments. According to the by-laws, Jennie Edmiston should have paid the October assessment on or before October 31 1912. At the time of her death, November 5, this assessment had not been paid. On November 6, the day following her death, the plaintiff offered to pay the assessment, but the local secretary of the defendant refused to accept payment.
The plaintiff’s evidence shows that for a long time prior to the month of November, 1912, it had been the custom of the secretary of the Coffeyville homestead to leave the receipts for its members at a certain bank, and it was customary for some of the members to call at the bank and pay their dues and assessments there and receive their receipts signed by the secretary. Jennie Edmiston for several years had paid her dues •and assessments at this bank and had received her receipt there, and it had been the custom of the officers of the bank, with the knowledge and consent of the local secretary, to receive dues and assessments from members at any time while the receipts remained at the bank, which, in some instances, was as late as the 7th of the following month, and this without exacting a health certificate, as the by-laws of the defendant required. It was also shown that members making payments in this manner after the last day of the month for which assessments were due were not suspended, but were carried upon the book'- ? the local homestead the same as members who had made their payments as provided for in the by-laws.
It appears from the evidence that in 1912 there were about 412 members of the Coffeyville homestead. About one-fourth of them paid their assessments at the bank during that year. There were always a few stragglers who paid at the bank between the 1st and the 5th and in some instances as late as the 6th of the following month. The defendant’s by-laws contained a provision that the failure of the local secretary to mail the monthly payments to the supreme secretary before the 5th day of the month following the collection of the same should suspend the homestead, and that notice of such suspension should be mailed by the supreme secretary to the president, secretary and treasurer of the delinquent homestead. This provision was not entire evidence shows, the charter of the Coffeyville homestead did not usually mail her report to the supreme secretary until about the 9th of each month. So far as the evidence shows, the charter of the Coffeyville homestead was never suspended and no notice of suspension was ever given by the officers of the supreme lodge, but they continued to receive the remittances and the report from the secretary of the Coffeyville homestead after the 5th of the month without objection.
The plaintiff’s evidence showed that Jennie Edmiston had paid two of her last ten assessments after the first day of the following month; one having been paid on January 5, 1912, for December, 1911, and another payment having been made on May 4, 1912, for the April assessment. It was further shown that forty-one members of the local homestead failed to pay their October, 1912, assessment until after the time provided for in the by-laws, and that nine of the members, including the president of the Coffeyville homestead, paid their-October assessments on the 6th day of November, 1912, the day after the death of Jennie Edmiston. This was the day on which the plaintiff offered to pay the assessment for Jennie Edmiston. It further appears that in cases where a member was permitted to pay an assessment after the first day of the following month no health certificate was required.
The contentions of the defendant are: First, that the by-laws are self-operating, and the failure to comply therewith of itself operates to suspend the member and render the certificate void. Second, that reinstatement is a personal privilege and can not exist after the death of the insured. Third, that before plaintiff can recover-on the theory of a waiver the burden rests upon him to show not only a custom, but knowledge on the part of Jennie Edmiston of the existence of such a custom, and also knowledge on the part of the supreme officers of the defendant. Fourth, that the by-laws of the defendant expressly provide that there shall be no waiver of the kind relied upon by the plaintiff. The particular by-law referred to reads as follows:
“No officer of the society is authorized ór permitted to waive any of the provisions of the laws of the society relating to the substance of insurance, or the payments therefor between the members and the society, and it is expressly understood and agreed, that any failure of any officer of this society to fully observe the rules and regulations of this society, or its by-laws respecting the payments due the Homestead or Supreme Office shall not be considered a waiver of any such rules or requirements.”
In this connection it is contended that the local secretary was the agent of the defendant to collect and remit the benefit assessments at the time and in the manner prescribed in the by-laws, and at no other times and upon no other conditions, and that no act or omission of the secretary of the local homestead could create any liability of the defendant, nor could it amount to a waiver of any right or defense belonging to the defendant under the certificate of insurance and the by-laws of the order which became a part of the certificate.
The sole question in this case is whether the defendant by its course of dealing with the local lodge and with Jennie Edmiston waived the provision of its bylaws. It can not be doubted that there are many authorities which hold that where a member of an association of this character dies before having been reinstated, and without having paid the assessment, it is then too late for such member to be reinstated by any act of the beneficiary. See the case of Modern Woodmen of America v. Tevis, 117 Fed. 369, and cases cited in the opinion. But in our view of the case plaintiff’s evidence established a custom which existed so long that it must be held to have been within the knowledge of the supreme officers of the defendant. It is true that the evidence shows that only on two occasions had Jennie Edmiston availed herself of the custom, both in the year in which she died; once in January, and once in April. This was surely sufficient proof to show that she had knowledge of the custom and that she relied upon the same. The testimony showed that the local secretary' habitually violated the provisions of. the by-laws to forward her- report to the supreme secretary on or before the fifth day of each month, and that in no instance was the local homestead suspended, nor any notice sent to the local secretary of such suspension. This was certainly sufficient to bring the attention of the officers of the supreme lodge to the existence of the custom. (Fenn v. Life Insurance Co., 90 Kan. 34,133 Pac. 159.)
It appears that there is a provision of the by-laws that the secretaries of the local homesteads are under the immediate supervision and control of the executive committee of the defendant and this committee may at any time discharge them for cause. Another provision of the by-laws is that the local secretary acts for the supreme officers and represents them in the local homestead. There appears a further provision that the local secretary shall collect the money from the members and forward it to the supreme secretary. The local secretary countersigns all beneficiary certificates issued by the defendant and attaches the homestead seal thereto; and no beneficiary certificate is valid until signed and sealed by the local secretary. In the case of Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160, it was said in the opinion:
“The financial secretary of the local court is not only an officer of that court but he acts for the association as well. He collects and forwards the assessments from the endowment fund to the supreme secretary, and he is the officer to whom all other dues and assessments are to be paid.” (p. 73.)
In that case it was held that payment' according to a custom at variance with the by-laws of the order will prevent a forfeiture:
“Nor will such association be permitted to assert a forfeiture because assessments were not paid at the times stated in thé printed by-laws, where, by the adoption of a custom, or the course of its conduct, it has led the insured members honestly to believe that the assessments may be paid, and will be received, at times other than those specified in the printed rules.” (Syl. ¶ 2.)
To the same effect is Modern Woodmen v. Jameson, 48 Kan. 718, 30 Pac. 460. These cases, and the case of Fenn v. Life Insurance Co., 90 Kan. 34, 133 Pac. 159, are decisive of the case at bar. In the Fenn case it was held that the evidence was sufficient to warrant a finding that the company had waived the strict time of payment. It was said in the opinion:
• “A forfeiture will not be permitted where by the adoption of a custom or the course of its conduct the insurer has led the insured member honestly to believe that the assessments may be paid and will be received at times other than those specified in the contract. (Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160; Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219; Hartford Life Ins. Co. v. Unsell, 144 U. S. 439; Home Protection of North Alabama v. Avery, 85 Ala. 348, 5 South. 143, 7 Am. St. Rep. 54; Insurance Co. v. French, 30 Ohio St. 240.)” (p. 38.)
See, also, Note to the case of Morgan v. Northwestern Nat. Life Ins. Co., 42 Wash. 10, 84 Pac. 412, in 7 Ann. Cas. 382; Grand Lodge A. O. U. W. v. Lachmann, 199 Ill.140, 64 N. E. 1022; Beil v. Supreme Lodge, 80 App. Div. 609, 80 N. Y. Supp. 751; Seehorn v. Catholic Knights of America, 95 Mo. App. 233, 68 S. W. 949.
The authority of an officer of a subordinate lodge to waive forfeiture for nonpayment of assessments is discussed in a note to Royal Highlanders v. Scovill, 66 Neb. 213, 92 N. W. 206, in 4 L. R. A., n. s., 421.
It is urged, however, that no reinstatement could be made of Jennie Edmiston after her death, but as we view the question, her death occurring prior to the time at which the custom permitted payment of the assessment would make no difference. If she had died on the 29th day of October, with the right to make a payment at any time before the 31st, she would have been a member in good standing, and so if an established custom of the defendant permitted her to pay her assessment as late as the 7th day of the following month, and she had the right to rely on that custom,- and to pay at any time before the 7th without a certificate of health, then her death before that day would leave the situation precisely the same as though she had died on the 29th of the month. In Trotter v. Grand Lodge, 132 Iowa, 513, 109 N. W. 1099, 7 L. R. A., n. s., 569, the beneficiary relied upon a similar custom and the insured died before any payment was made. The secretary of the local lodge was frequently away from home on the last day prescribed by the by-laws for payment of assessments, and it had long been his custom to accept payments at any time prior to the day when he transmitted the collections to the supreme body. The Iowa court applied the principle of waiver and estoppel, and held that the by-law providing that a failure to pay on or before the specified day would ipso facto cause a suspension of the member was waived by the custom of the local officer in accepting payments after that date; that he was the agent of the supreme lodge with respect to the business of making such collections, and although the insured, without having paid the assessment, died after the first of the month, and before the time fixed by the custom for receiving the payments, the beneficiary could recover. In the opinion the court comments upon the fact that although payments were frequently made after the date specified by the by-laws, in no instance was a delinquent member treated as suspended provided the local secre tary accepted the payment prior to the date when he transmitted the collections to the supreme body.
We think the weight of authority and reason supports the rule that the defendant is bound by the custom which it permitted the secretary of the local lodge to establish, and that this custom, long acquiesced in by the defendant, by which payment of assessments was accepted at any-time while the receipts remained with the bank, constituted a waiver, and estops defendant from now claiming that the deceased was suspended by the failure to pay the October assessment.
It follows that the judgment will be affirmed.
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The opinion of the court was delivered by
McFarland, C J.:
This action was filed by an insured seeking recovery for personal injury from her insurance carrier under uninsured motorist coverage. The case was ultimately dismissed without prejudice. The matter before us arose during discovery when the insurance carrier subpoenaed the insured’s medical records from a nonparty hospital and concerns the district court’s quashing of the subpoena and its direction as to payment of the cost of photocopying the medical records. The case was transferred to this court on our own motion pursuant to K.S.A. 20-3018(c).
The petition filed herein alleges that plaintiff, Nancy Hill, was injured in an automobile accident in January 1992, said accident being the fault of the other driver, who was uninsured. Hill sought $52,000 from defendant Farm Bureau Mutual Insurance Company (Farm Bureau), her insurance carrier, under the policy’s uninsured motorist coverage.
As a part of its discovery, Farm Bureau served a subpoena duces tecum on Providence Medical Center (Providence), pursuant to K.S.A. 60-245a, seeking Hill’s medical records.
Providence filed an objection on the grounds federal law precluded disclosure of the records without consent of the patient or a court order stating such disclosure was necessary in the interests of justice. A hearing was held. The subpoena was quashed, Providence was to make the medical records available at the hospital to Farm Bureau’s counsel, and any requested photocopies were to be made by Providence at the cost the hospital “normally” charged. Copies were made. Farm Bureau disputes the cost thereof in this appeal. Other facts (and the lack thereof) will be stated as needed in the discussion of the issues.
Before proceeding, the applicable standards of review need to be stated. Control of discovery is entrusted to the sound discretion of the trial court, and orders concerning discovery will not be disturbed on appeal in the absence of clear abuse of this discretion. Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, Syl. ¶ 20, 856 P.2d 906 (1993); Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, Syl. ¶ 9, 815 P.2d 550 (1991); Ryan v. Kansas Power & Light Co., 249 Kan. 1, 11, 815 P.2d 528 (1991).
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Simon v. Simon, 260 Kan. 731, Syl. ¶ 2, 924 P.2d 1255 (1996).
We turn now to the issues. For its first issue, Farm Bureau contends the trial court erred in not allowing it to take the deposition of the custodian of the records of Providence.
In its argument on this issue, Farm Bureau paints with an extremely broad brush, spending little time on the particulars of this case. Rather, it states the general proposition that there are two ways to obtain hospital medical records: (1) through a medical authorization from the patient, which may be a slow process and expensive, as Farm Bureau argues, Kansas hospitals “commonly gouge attorneys” on the cost of copies; and (2) by subpoena duces tecum requiring the records to be brought to the requesting attorney’s office, which is a faster and cheaper means, with a date certain, and the attorney can make the copies on his or her own office equipment.
Farm Bureau argues that had the subpoena duces tecum not been quashed, the records would have been brought to its attorney’s office by the custodian, where copies would have been made at an economical cost. This is the harm the quashing of the subpoena caused — Farm Bureau had to pay an allegedly exorbitant bill for the copies made by Providence.
There are several major flaws in the arguments presented on this issue. The subpoena duces tecum issued to Providence provides in pertinent part:
“You are commanded to produce the records listed below before a Certified Shorthand Reporter for the State of Kansas from Jay E. Suddreth & Associates, Inc., at your place of business 8929 Parallel Parkway, Kansas City, Kansas . . . .” (Emphasis supplied.)
Had the subpoena not been quashed, the medical records would have been produced at the hospital and any copies would have been made by hospital personnel on hospital equipment, with costs assessed to Farm Bureau.
Further, there is no record before us of the hearing in which the subpoena was quashed. The journal entry filed on the hearing does not state the trial court’s rationale for its actions. There is no indication in the record as to why Farm Bureau deemed it necessary to depose the custodian or why the request to depose was denied.
We note also that in Farm Bureau’s motion to modify the trial court’s decision, no complaint is made as to the quashing of the subpoena. The only complaint is that Providence charged too much for the copies — Farm Bureau wanted the order modified from the hospital’s normal charges to a specific “fair and reasonable charge” for the copies Providence had supplied.
An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal. Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993).
We also note that a litigant must object to inadequate findings of fact and conclusions of law in order to give the trial court an opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal. Where there has been no such objection, the trial court is presumed to have found all facts necessary to support the judgment. Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994).
We conclude that appellant has failed to show the trial court’s quashing of the subpoena duces tecum constitutes an abuse of discretion.
In its final issue, Farm Bureau contends the trial court erred in refusing to address whether Providence’s charge for copying the medical records was reasonable.
The record before us relative to this issue is, also, fatally deficient. There is not even a copy of Providence’s statement of charges in the record. The only references in the record to any specific dollar amount made herein are in appellant’s motion to approve bond and the journal entry approving the bond. Bond was sought and approved in the amount of $134.80 “in response to the bill from Providence.” All statements relative to an appellant’s burden to present an adequate record and to have objected to inadequate trial court findings as set forth in the preceding issue are equally applicable here.
Farm Bureau’s motion to modify was heard on July 12, 1996. There is no transcript of that hearing in the record.
An affidavit of Providence’s medical records custodian, dated May 31,1996, was presented to the trial court at the hearing. That affidavit states Ms. Hill’s records consisted of 239 pages and that the records were copied in 56 minutes. We do not know whether these are two-sided or one-sided pages. Nor do we know whether there was time spent, over and above actual copying time, in disassembling and reassembling the records. Likewise, we do not know if any type of administrative fee was charged. In other words, even if we assume $134.80 was the charge, the record does not show on what basis it was computed.
By virtue of the absence of any transcript of the hearing, we do not know what evidence there was as to how the charge was determined or whether evidence was introduced that the charge was or was not reasonable. As will be recalled, Farm Bureau sought modification to a reasonable cost.
Farm Bureau contends the trial court erred in refusing to address its claim that the charge was unreasonable. With no transcript of the hearing or objection to the adequacy of the court’s findings, we do not know what the trial court did or did not consider or the basis for its ruling.
With the state of the record herein, there has been no showing of error or abuse of discretion on this issue.
In conclusion, it should be noted that the glaring omissions in the record presented in this appeal, coupled with sweeping assertions in the appellant’s brief, appear to indicate this appeal is more the result of a fit of pique rather than a serious effort to obtain meaningful appellate review of a trial court’s orders.
The judgment is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
The plaintiff, Marvin Bodine, is a resident ratepayer within Osage County Rural Water District # 7 (RWD). He sued RWD in a class action for improper water rates, alleging seven different claims. RWD purchases its water from the City of Osage City (City). RWD joined the City as a third-party defendant for indemnification purposes, should Bodine prevail in his action against RWD. The trial court granted summary judgment against Bodine and in favor of RWD. The trial court also dismissed RWD’s claims against the City as moot.
In reading the facts, it should be kept in mind that Bodine’s suit is against RWD only and Bodine concedes RWD’s rates are reasonable when compared to RWD’s expenses, or when compared to what other rural water districts charge. Oversimplified, the dis-positive issue in this case is Bodine’s contention that RWD is paying more money to the City than RWD is contractually obligated to pay.
RWD was formed in 1967 to provide water at a reasonable rate. Bodine was one of the founders of RWD and was a member of the board of directors from January 15, 1968, through February 26, 1980. In 1972, while Bodine was on the board, RWD entered into the contract at issue with the City, whereby the City agreed to sell treated water to RWD for a specified price. This contract provides in pertinent part:
“1. SALE OF WATER: The City agrees to sell to the District at the point of delivery hereinafter specified, during the term of this agreement or any renewal or extension thereof, potable treated water meeting applicable purity standards of the Kansas State Board of Health in such quantity as may be required by the District.
“2. TERM OF AGREEMENT: This agreement shall extend for a term of forty (40) years from the date of the initial delivery of any water to the District as evidenced by the daté of the first statement submitted by the City to the District, and, thereafter may be renewed or extended for such term or terms, as may be mutually agreed upon by the City and District.
“8. WATER RATES: The District agrees to pay to the City, subject to the provisions of Paragraph 7 above, for water delivered in accordance with the following schedule of rates: a. Fifty cents (500) per one thousand (1,000) gallons, which amount shall be the minimum rate per month, or a yearly minimum sum of eight thousand dollars ($8,000), whichever shall be highest. The yearly minimum rate shall commence January 1, 1974.
b. If the City of Osage City is forced to take raw water from the Melvem Reservonas its source of supply due to extended drought or other conditions beyond its control, then the rate shall increase to sixty-six cents (660) per one thousand gallons, which amount shall also be the minimum rate per month, or a yearly minimum sum of $10,500.00, whichever shall be highest. The yearly minimum rate shall commence January 1,1974.
c. In the event unforseen costs arise in the production of treated water and the City is forced to increase water rates to all customers served, the rural water district base rate in effect will be increased by the same percentage points as charged to all other customers.
d. In the event the City shall at any time exceed a withdrawal from Melvem Reservoir of five hundred (500) acre feet now contracted for, and be required to purchase increased storage, the District will be required to pinchase the additional storage to meet its requirements from the same source.”
During the term of the Agreement, the following rate increases were imposed by the City and charged to the District:
Date Charge Per 1,000 Gallons
1972 $ .50
1978 $ .85
July 1981 $1.19
Sept. 1985 $1.94
Sept. 1989 $2.23
There were other rate increases which occurred on dates between the rate increases cited above. However, these rate increases cited above are the only rate increases which Bodine cites in his petition and in his motion for summary judgment.
Each of these rate increases was charged to RWD by the City, and RWD passed the rate increases on to the resident ratepayers. At the time these rate increases became effective, the City did not offer any evidence that it was “forced” to withdraw water from Melvem Reservoir, or that “unforeseen” costs arose in the production of treated water, or that the rate increase was equal in percentage to a rate increase also imposed on City residents. However, water was taken from the reservoir and city rates were increased. According to Bodine, the City customers were not charged increased rates equivalent in percentage to some of the increased rates charged to RWD.
Bodine’s expert, Mike Butler, reviewed the water rate increases charged by the City to RWD and passed through RWD to its resident ratepayers. He drew the following conclusions about the rates:
“In conclusion, we feel that the District’s water rate is fair based on their expenditures. The $15.00 monthly debt charge is appropriate and the $4.10 per 1,000 gal. charge for water is about ten percent higher than the actual cost. However, we do believe that the rate charged for water by Osage City is totally unfair and this then is being passed on to the patrons of the District in the form of higher water costs.”
Butler also concluded that RWD paid its pro rata share of the City’s actual cost of water production and its share of any increases in the cost of water production, whether such increases were foreseeable. However, according to Butler, RWD also paid, over the life of the contract, some $400,000 beyond the cost of water production, based on the rates the City charged it.
Based on the rate increases from the City, which RWD passed on to its resident ratepayers, Bodine filed a class action petition on behalf of all of. the RWD residents against RWD. Under Count I, Bodine claims that RWD lacks the statutory and contractual authority to pay an amount to the City in excess of the contractual amount due under the Agreement and to pass these extra charges onto the residents of RWD. Under Count II, Bodine claims .that an implied contract to pay for private property exists among RWD, the City, and himself, and that RWD breached this contract because it took Bodine’s property by charging excessive rates, but gave no benefit to him in return. Under Count III, Bodine alleges that the water rates charged by RWD and paid to the City in excess of the water production costs are an illegal tax imposed upon nonresidents of the City. Under Count IV, Bodine claims that the excessive water rates should be struck down because they bear no rational or reasonable relationship to the contractual agreement or the cost of producing water. Finally, under CountV, Bodine claims that RWD has a contractual duty arising from the contract, from its public trust, and from its official station to pay the City only the water rates contracted for and then to pass only that rate, plus actual costs, on to RWD residents. Bodine requested an order of mandamus, ordering RWD to comply with its contractual duty, and an injunction to permanently enjoin RWD from charging its resident ratepayers any rates in excess of the rate allowed by the contract.
Bodine filed a motion for class certification, and all three parties filed motions for summary judgment. These motions were argued to the Osage County trial court on June 21, 1996. The trial court denied Bodine’s motion for class certification, granted RWD’s motion for summary judgment, and dismissed the third-party action against the City as moot. In so holding, the trial court stated:
“I find as between the Plaintiff Bodine and the Rural Water District, the issues are as set out in Shawnee Hills Mobile Homes, Inc. v. Rural Water District #6, and that is whether or not the Rural Water District rates are reasonable to Mr. Bodine.
“The construction of his allegation is that they are in fact unreasonable to him and that the Rural Water District is paying an amount beyond the contract rate to the City of Osage and thus makes his rate unreasonable.
“The Plaintiff has no direct standing to enforce the contract between the Rural Water District and the City, and his basis again as I’ve previously stated, must rest upon the fact that the failure of the Rural Water District to enforce the contract causes an unreasonable excessive confiscatory rate to him.
“I have carefully considered Paragraph 8 of the agreement. I note that the claim of the Rural Water District against the City is to indemnify only . . . in the event that the interpretation adopted by both the Rural Water District and the City of the contract was found to be erroneous.
“There is [no] present dispute between the. two parties to the contract as to the language thereof. I note the Rural Water District and the City are both governmental agencies that can sue and are entitled to be sued.
“The filing of a suit by the Rural Water District against the City of Osage would be a discretionary function. Not one that would be appropriate for this Court to issue an order of mandamus and the Court does not presume to do so.
“I noted the theory of the Plaintiff relative to whether the Rural Water District has the discretionary right to violate a legal duty and they cited Dougan v. Rossville Drainage District case, which I’ve carefully reviewed. I do not find that case applicable to the current situation.
“Mr. Bodine is basically asking that I set aside the interpretation of both the Rural Water District and the City and adopt it to the contract that they entered into, and impose a different interpretation which he believes is the proper interpretation; and thus to find as a result of that interpretation that the Rural Water District rates charged to him are in fact unreasonable and excessive and confiscatory.
“There’s no indication and no showing to the Court by any of the motions or any of the responses thereto that the Rural Water District has charged any rate beyond that which would yield a fair profit as long as the rate is not disproportionate for the service rendered.
“It appears that as far as the Rural Water District is concerned they’re charging a reasonable rate, other than this dispute the Plaintiff says should be had with the Rural Water District and the City.
“As between the City and Rural Water District in this matter, they are contractually involved by virtue of the contract. And while the reasonableness of the City’s charges to the Rural Water District is not the sole criteria for determining whether or not [their] charges under the contract are right.
“The provisions of Subparagraph 8-C of the contract do in fact bring to a certain extent that reasonableness to bear upon the decision and how the two parties to the contract have interpreted the contract, and basically have lived under it without litigation from the time of its inception on June 27th, 1972, to present.
“Mr. Bodine, a former member of the Board, is attempting to substitute his interpretation of the contract with that of the Board and the City, and that does not appear to be an appropriate procedure.
“In accordance with the Shawnee Hills case I must presume that the rates are valid and reasonable til the contrary has been established.
“The only allegation of unreasonableness that it’s in excess of the cost paid under this contract to the City is by the Plaintiff.
“I find that . . . there is no dispute of fact as to what they paid when they were raised. And there has not been a litigation between the City and the Rural Water District to interpret that contract differently than they have a long time so interpreted it.
“I therefore find that Mr. Bodine failed in his obligation to furnish evidence to overcome the presumption the rates being charged him are reasonable.
“I therefore grant the Rural Water District’s Motion for Summary Judgment and I dismiss the claims herein at the cost of the Plaintiff.”
Bodine timely appealed the trial court’s ruling to the Court of Appeals. RWD has not appealed the dismissal of its third-pariy claim against the City. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
I. 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. . . . 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); Geiger-Schorr v. Todd, 21 Kan. App. 2d 1, 3, 901 P.2d 515 (1995).
A. User Rate Case Analysis
Shawnee Hills Mobile Homes, Inc. v. Rural Water District, 217 Kan. 421, 537 P.2d 210 (1975), is a user rate case. This case involved a water user, Mobile Homes, which operated a mobile home court lying within the boundaries of RWD No. 6. Mobile Homes requested an injunction against RWD No. 6, alleging that the rates it charged were unreasonable, excessive, and confiscatory. The trial court agreed that the rates RWD No. 6 charged Mobile Homes were unreasonable, and the court enjoined RWD No. 6 from collecting the charge. RWD No. 6 appealed to this court. This court reversed the trial court’s grant of the injunction, finding that RWD No. 6’s rates were not unreasonable. In so holding, this court stated:
“District No. 6 is a quasi-municipal corporation (K.S.A. 82a-604) and no claim is made that it is subject to supervision and control by the state corporation commission. Nonetheless, the district is not free to exact whatever rate it sees fit to impose. In Holton Creamery Co. v. Brown, 137 Kan. 418, 419, 20 P.2d 503 [1933], this court considered a challenge directed against rates charged by a municipal corporation for water services and there we said:
. . . Such rates must be reasonable; and persons and corporations dependent on these utilities are entitled to judicial protection against excessive or confiscatory rates. . . .’ (Emphasis supplied.)
“In the Holton case, this court defined the standard by which the reasonableness of municipal water rates are to be gauged. As the court announced, rates must be reasonable in the sense that they are not excessive or confiscatory. It is in this frame of reference that we must judge the circumstances of this case.
“It is generally recognized that water rates set by a municipality are presumed to be valid and reasonable until the contrary has been established. (Usher v. City of Pittsburg, 196 Kan. 86, 90, 410 P.2d 419 [1966]; 94 C.J.S., Waters, § 289a, p. 173) and the burden of overcoming this presumption rests upon the challenging party. . . .
“From 1966 to 1970 Mobile Homes paid for water at the rate of $1 per thousand gallons above a 30,000 gallon minimum. We find nothing in the record that Mobile Homes complained during that period of time that the rate was excessive, oppressive or confiscatory. It was not until [the plaintiff] was informedin September, 1970, that the district had experienced a good year that he unilaterally reduced payments to 50 cents per 1,000 gallons over the minimum, basing his action on an alleged agreement which the trial court found was not established. No cross-appeal has been taken from this finding.
“In support of its charge of unreasonableness, plaintiff primarily relies on the testimony of Harold W. Gerlach, a professional engineer who, according to his own testimony, had never previously developed a water rate. Although he expressed the opinion, or the suggestion as he sometimes put it, that a rate of 80 cents per thousand gallons would be reasonable, his testimony taken as a whole falls short, in our view, of establishing the rate charged plaintiff as being excessive or confiscatory.” 217 Kan. at 428-30.
This case demonstrates that a litigant who is not actually a parly to the water purchase contract, but is merely a water user who is subject to the rates, may still challenge the rates as improper if the litigant can overcome the rates’ presumption of validity and prove that the rates are unreasonable, excessive, and confiscatory.
In this case, Bodine pays his water rates to RWD, not fhe City. Thus, Bodine has sued RWD, not fhe City, claiming that the water rates are improper. This court analyzes whether RWD’s water rates, not the City’s water rates charged to RWD, are unreasonable, excessive, or confiscatory. Since RWD’s water rates are presumed valid, Bodine has the burden of overcoming this presumption and proving the rates are unreasonable.
Bodine does not make any direct arguments to prove that RWD’s water rates are unreasonable under a Shawnee Hills analysis. This is because Bodine does not think a Shawnee Hills analysis applies to this case. He contends that this is a contract rate case instead of a user rate case.
The trial court found that the rates charged by RWD were not unreasonable, excessive, or confiscatory. We agree with the trial court. Bodine has not offered any evidence to overcome the presumption of validity as to RWD’s rates and to prove that the rates are unreasonable, excessive, or confiscatory. From 1978 to 1995, Bodine paid for water at rates which were greater than the rates set out in the contract. There is no indication that he complained to the court during this time that the rates were excessive, oppressive, or confiscatory. See Shawnee Hills, 217 Kan. at 430. Bodine did not offer any evidence that RWD is charging rates which will yield it more than a fair profit or that RWD’s rate is disproportionate to the service it renders, which is purchasing water from the City and providing it to users. See 217 Kan. at 431. Bodine tries to argue that RWD’s rates are unreasonable because it passes through to the ratepayers the City’s unreasonable rates. In other words, Bodine is trying to indirectly attack the City’s water rates. This is not permissible in a user rate case. Bodine receives his water from RWD and pays his rates to RWD, not the City. Thus, the question is whether RWD’s rates, taking into account its expenses (such as paying the City for the water), are so excessive that RWD will yield a large profit. This is not the case. Taking into account what RWD was required to pay the City for the water, RWD’s rates are not disproportionate to the service rendered. As such, Bodine has not overcome the presumption of validity and proven that RWD’s rates are unreasonable, excessive, oppressive, or confiscatory, even when all the facts are viewed in favor of Bodine. Bodine’s claim, as a noncontract water user, that RWD’s rates are improper, fails. The trial court properly granted summary judgment to RWD on this water user rate claim.
B. Contract Rate Case Analysis
While Bodine is merely a water user and not a direct party to the water purchase contract, Bodine claims that the Shawnee Hills case does not apply because this is a “contract rate case” and not a user rate case as discussed in Shawnee Hills. Thus, according to Bodine, the rates charged by the City and passed through RWD to the ratepayers are improper because they are in violation of the clear and unambiguous terms of the contract, regardless of the reasonableness or unreasonableness of the rates. Bodine asks the court to make the City and RWD abide by the strict terms of the contract and correct the rates. Bodine claims that this is a “contract rate case,” and not a “user rate case,” because he alleges that he has the right and the power to make RWD enforce the contract with the City. According to Bodine, RWD is a public entity which has a legally enforceable duty, owing to him as a user ratepayer, to enforce the contract with the City and correct the overcharges. Bodine bases this contention on three different sources.
First, Bodine cites to Att’y Gen. Óp. No. 87-19, which states the rule that an entity created by statute (such as RWD) only has power as conferred upon it by statute. Att’y Gen. Op. No. 86-31 clarifies that the purpose of a rural water district is not commercial but is to generate revenue to pay for its facilities. Bodine points out that a contract made between a rural water district and a city is enforceable if it is an arms-length transaction and is made in a reasonable manner. See Att’y Gen. Op. No. 87-146. Finally, all monies generated by rural water districts are public money or funds in nature, pursuant to statute. Att’y Gen. Op. No. 87-157. Based on this authority, Bodine alleges that RWD owes him a duty to enforce the contract with the City as Bodine interprets .the contract.
It is true that a rural water district is a creature of statute and that the legislature has specifically conferred upon a rural water district the power to enter into an arms-length contract with a city in a reasonable manner, so as to provide water to the district, not to generate revenue out of public funds. K.S.A. 82a-619. However, just because a rural water district has the statutory power to enter into a reasonable contract with a city for the purchase of water does not mean the rural water district owes a duty to the water users, who are not parties to the contract, to interpret the contract exactly as the users interpret it and enforce the contract with the city as the users wants the contract interpreted.
As a second source for Bodine’s contention that he has the power and right to make RWD enforce the contract with the City, as he interprets the contract, Bodine points to the rules of contract law.
Bodine is correct that RWD and the City have entered into a legally binding contract for the purchase of water. Bodine is also correct that this contract imposes a legally enforceable duty on RWD and the City to abide by the terms of the contract. However, Bodine is mistaken as to whom this duty is owed. As a statutorily authorized party to the contract, RWD owes a duty to the other party to the contract, the City, to abide by the terms of the contract. However, RWD does not owe a duty to Bodine, who is not a party to the contract, to interpret the contract in the same manner as Bodine interprets it and to force the City to abide by this interpretation. Just because the parties to the contract are public entities does not mean the duties arising out of the contract are owed to people who are not parties to the contract. The contract does not give Bodine the power to make RWD enforce the contract with the City as Bodine interprets the contract.
Finally, as a third source for Bodine’s contention that he has the power to make RWD enforce the contract with the City, as he interprets the contract, Bodine relies on letters from the Kansas Water Association (KWA) to RWD, encouraging it to pursue a suit against the City for breach of contract. In no way do the letters which Bodine relies upon from the KWA indicate that RWD has a legal enforceable duty owing to Bodine to enforce the contract with the City. Further, even if these letters did indicate such a position, KWA is not a legal authority and its opinion would have no control over the parties or this court.
Thus, while RWD is a public entity, it does not owe a legally enforceable duty to Bodine, who is not a party to the contract, to enforce the contract with the City. As such, even assuming all the facts in Bodine’s favor, Bodine does not have the right or the power to make RWD enforce the contract with the City. In other words, as a nonparty to the contract, Bodine does not have standing to enforce die terms of the contract as he interprets them.
Bodine asserts that he does have standing to challenge the contract by pointing to K.S.A. 60-907, which provides in pertinent part:
“(a) Illegal tax, charge or assessment. Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.
“(b) Unauthorized contracts. Injunctive relief may be granted to enjoin any public officer, board, or body from entering into any contract or doing any act not authorized by law that may result in the creation of an additional levy of a tax, charge or assessment.” (Emphasis added.)
The test for standing under K.S.A, 60-907 is whether a taxpayer’s pocketbook is affected by government action. Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 382, 834 P.2d 1344 (1992).
Bodine alleges that by charging RWD more than the actual production costs of water, the City is raising more revenue than is needed to cover the water production costs. According to Bodine, the City is using the extra money as a substitute for property taxes in order to pay for city services such as police and fire protection. Thus, Bodine claims that City water rates amount to an illegal tax, which RWD passes on to its users, without challenging the rates or forcing the City to abide by the contractual rates.
By statute, RWD has been specifically prohibited from levying taxes. K.S.A. 82a-619(d). Thus, Bodine claims that RWD, as a public body, has entered into a contract that has resulted in an illegal charge or tax in violation of K.S.A. 60-907.
Bodine misapplies his K.S.A. 60-907 standing argument under this particular claim. Bodine is not seeking to enjoin the entering into of a contract or the collection of a tax. Rather, Bodine is trying to make RWD and the City abide by certain terms set out in the contract, as he interprets them. In other words, under this particular claim, Bodine is trying to make RWD enforce the contract with the City, not enjoin the contract. Thus, K.S.A. 60-907 does not apply to this claim or give Bodine standing to bring this claim. This is a direct breach of contract action for which Bodine does not have standing because he is not a party to the contract.
Since Bodine is not a party to the contract, he must do more than show the rates are contrary to the contract terms in order to prove that the rates are improper. To prove that the rates are improper, Bodine, as a water user only, must show that the rates are unreasonable and confiscatoiy under the Shawnee Hills user rate case analysis. As previously discussed, Bodine did not and could not do so. The trial court properly granted summary judgment on this water contract rate claim.
C. Mandamus
K.S.A. 60-801 states:
“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.”
“Mandamus is a proceeding designed for the purpose of compelling the performance of a clearly defined duty, not involving the exercise of discretion, by a person or corporation whose duty arises out of a trust relationship, or a public or corporate responsibility.” Mobil Oil Corporation v. McHenry, 200 Kan. 211, Syl. ¶ 14, 436 P.2d 982 (1968).
Bodine claims that RWD has a legal duty, arising from the water purchase contract and owing to the residents of RWD, to pay only those rates which are set out in the contract when purchasing water from the City. Since RWD is paying more for water than the terms in the contract provide and RWD is refusing to sue the City to enforce the contract terms, Bodine claims that RWD is breaching its duty to RWD residents to pay only the rates set out in the contract (and pass only this amount onto the RWD residents). Thus, Bodine asserts that mandamus is an appropriate proceeding to compel the RWD Board to perform a specified duty resulting from operation of law — the duty to sue the City and enforce the terms of the contract. According to Bodine, RWD should enforce the contract, RWD should pay lower rates to buy water from the City, and RWD should pass lower rates onto the residents in the district. As such, Bodine asks this court to grant mandamus.
. However, mandamus is only appropriate to compel a defendant to comply with a clearly defined legal duty, one which does not involve the exercise of discretion. Mobil Oil, 200 Kan. 211, Syl. ¶ 14. The contract between RWD and the City imposes a duty on RWD to fulfill the terms of the contract; See Beeson v. Erickson, 22 Kan. App. 2d 452, 458-59, 917 P.2d 901, rev. denied 260 Kan. 991 (1996) (quoting Isler v. Texas Oil & Gas Corp., 749 F.2d 22, 23-24 [10th Cir. 1984]). However, this duty is only owing to the City, the other party to the contract, and not to Bodine. Further, RWD may owe some duty to RWD residents to ensure that the City properly complies with the contract. However, that duty is only a discretionary duty, not a mandatory one. There are several factors which go into determining whether one party to a contract should sue the other party to a contract because the other party is not abiding by the terms of the contract. These factors include: the intent of the parties when the contract was entered into; the interpretation of the contract terms; the reasonableness of the breach; the cost of a lawsuit; and the relationship between the parties, etc. Just because the City may be breaching the contract, RWD is not required to automatically sue the City to enforce the contract terms. Instead, RWD must evaluate all the considerations to determine if suing the City is the best action to take. Any duty RWD may owe to its residents to sue the City and enforce the terms of the contract is discretionary, depending upon the circumstances and the judgment of the RWD board. Since RWD has not violated a mandatory duty by refusing to sue the City and enforce the allegedly breached contract, mandamus is not appropriate herein as a matter of law.
In addition, Bodine, as a private citizen, has no standing to bring a mandamus action. As Mobil Oil states:
‘While mandamus will not ordinarily lie at the instance of a private citizen to compel the performance of a public duty, it has been held where an individual shows an injury or interest specific and peculiar to himself, and not one that he shares with the community in general, the remedy of mandamus and the other extraordinary remedies are available.” 200 Kan. 211, Syl. ¶ 17.
Bodine has not shown an injuiy specific or peculiar to himself, separate from one shared with the community in general. In fact, Bodine claims he and all other district members have suffered the same injury, which is why he sought to have the case certified as a class action. Without a specific injury, Bodine’s request for a remedy of mandamus fails, although for a different reason than the one enunciated by the trial court. “A district court’s reasons for its decision are immaterial if the ruling was correct for any reason.” Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, Syl. ¶ 3, 863 P.2d 364 (1993). The trial court properly granted summary judgment to RWD on this mandamus issue.
D. Third-Party Beneficiary
Bodine points out that he may enforce a contract expressly made for his benefit even though he was not a party to the contract. If a person makes a promise to another for the benefit of a third person, the third person may maintain an action to enforce the contract. A beneficiaiy can enforce a contract if the contracting parties intended for the beneficiaiy to receive a direct benefit from the contract. Martin v. Edwards, 219 Kan. 466, 472-73, 548 P.2d 779 (1976).
Applying these concepts to this situation, Bodine points out that RWD made a promise to the City and vice versa for the benefit of himself and all other RWD residents. Bodine claims that RWD and the City intended for him and the other RWD residents to receive a direct benefit from the contract. Thus, Bodine claims he is a third-party beneficiary to the water purchase contract and that he may maintain an action to enforce the contract even though he is not a party to the contract.
We do not believe a patron of a utility is a third-party beneficiaiy of a contract that helps provide a service to the patron. In any event, Bodine’s third-party beneficiaiy argument fails because of the duty issue.
Bodine claims RWD has breached a legal duty it owes to him to make the City abide by the terms of the contract. However, Bodine does not claim that RWD has breached any contractual duty owed to him as third-party beneficiary — the duty of each party to the contract to abide by the terms of the contract itself. In other words, Bodine does not allege that RWD has breached the contract. Rather, Bodine alleges that the City, not RWD, breached the contract by charging RWD higher water rates than those set out in the contract.
As a third-party beneficiary, Bodine’s rights, if any, are not derived from RWD’s rights. As such, Bodine does not need to sue RWD in order to maintain a third-party beneficiaiy action against the City and enforce the contract. Since Bodine does not claim RWD breached any terms in the water purchase contract, Bodine cannot sue RWD for breach of contract as third-party beneficiary. The following cases support this conclusion:
In Wunschel v. Transcontinental Ins. Co., 17 Kan. App. 2d 457, 839 P.2d 64 (1992), the plaintiffs, as third-party beneficiaries, properly sued the party who breached the contract directly (the City herein) without naming the other party to the contract at all (RWD). In Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 234-35, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991), the court allowed the third-party beneficiary to sue either the promisor or the promisee in a contract, as long as the third-party beneficiary actually sued the party to the contract who was “responsible” for or actually “caused” the breach of the contract. Even assuming all facts in favor of Bodine, the promisee herein, RWD, did not actually “cause” the breach; if a breach occurred, it was caused by the City. Thus, Bodine improperly named RWD as the defendant in this third-party beneficiary/breach of contract lawsuit. The trial court properly granted summary judgment to RWD on this third-party beneficiary claim.
II. CLASS ACTION CERTIFICATION
The trial court denied Bodine’s motion to certify the class on its merits. Bodine has no valid claim. The trial court properly granted summary judgment to RWD on all of Bodine’s claims. Since all of Bodine’s claims are invalid, his motion to certify a class to bring these claims is moot. The trial court properly denied Bodine’s motion to certify a class action.
We have examined Bodine’s other points on appeal and find them to be without merit.
The trial court is affirmed.
Lockett, J., not participating.
Richard W. Wahl; Senior Judge, assigned.
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The opinion of the court was delivered by
Allegrucci, J.:
Saundra Depew, whose work activities all involved use of a computer, sought compensation for bilateral carpal tunnel syndrome. The administrative law judge (ALJ) determined that Depew should be compensated for a permanent partial general disability. On review, the Workers Compensation Board (Board) concluded that she had suffered two separate scheduled injuries to her forearms. Depew appealed the Board’s decision to the Court of Appeals, which affirmed the Board’s decision. Depew v. NCR Engineering & Mfg., 23 Kan. App. 2d 463, 932 P.2d 461 (1997). Depew’s petition for review was granted by this court.
Depew raised two issues on appeal: (1) In the circumstances of this case, should the claimant have been compensated for a permanent partial general disability or for two separate scheduled injuries? and (2) Does the Board’s decision awarding compensation for two separate scheduled injuries violate the Equal Protection Clause of the federal Constitution?
Depew began working at NCR in September 1978. By 1980 she was using a computer in her work. She was the first secretaiy at NCR to use a computer. In February 1989, she began working in a department where all activities, including ordering supplies, filling out time sheets, completing expense statements, and reading mail, were computerized. At that time she also began using a computer mouse for producing detailed computer drawings of product systems. She estimated the portion of her work time spent in making drawings as approximately 1 day a week. She used the keyboard of the computer to perform her other job tasks.
Before Thanksgiving 1990, Depew began to have “a shooting, aching pain” that ran from the palm of her right hand up into her forearm. The symptoms increased with time. She was referred to an orthopedic surgeon, Dr. Melhom, who performed surgery on her right wrist and elbow on April 1,1991. The surgeon’s operative report states that the procedure decompressed the right median nerve that was entrapped at the wrist and the right ulnar nerve that was entrapped at the elbow. She returned to work on May 6, 1991, with no restrictions on her activities. When she returned to work, Depew’s right hand and arm were not hurting or bothering her at all. She believed that the problem “was fixed.” Within a few weeks of returning to work and resuming her regular work activities, however, her hand and arm began hurting again.
On May 17 she telephoned her surgeon’s office reporting that her right hand and arm ached and were sore. She told him that “she types and uses the mouse all day long.” On May 21, Depew had an appointment with Dr. Melhom. His notes from that visit include the following:
“I shared with her that this is consistent with the entrapment post release process. Some permanent damage had occurred to the nerve prior to the surgical release. The goal of surgery is to decompress but not to return to normal.
“I shared with her that over the next 18 months gradual improvement will occur,although again complete resolution is unlikely.”
On May 24, Depew told Dr. Melhom that she still has some ache and a sharp shooting pain up her arm. On May 31, she felt that she had “made gains.”
On August 8, Depew told Dr. Melhom that she was frustrated because she “continued to have symptom complaints [discomfort involving her right arm] off and on.” Since she had last seen Dr. Melhom, her family physician had sent her to Dr. Artz, who injected her right wrist. Because there was no improvement, he and the family physician agreed that “she probably has a recurrence of the nerve entrapment process due to scarring at the wrist and elbow.” Dr. Melhom’s notes from four more office visits during August indicate no marked change.
On September 9, Dr. Melhom noted: “She indicates that the right arm is still the area that tends to bother her the most, although she does on occasions continue to have symptoms with regard to the left.” On September 13, Dr. Melhom wrote: “Her latency on the left hás now moved into the range of a probable mild bilateral [carpal tunnel syndrome].” With regard to the discomfort in her right arm and hand, Dr. Melhom stated his opinion that “the sur gical procedure provided was appropriate. I’m not convinced at this time that there is any scar formation in the palm area. I believe it has to do with her work activities.” For the first time, Dr. Melhom’s notes reflect consideration of placing restrictions on Depew’s work. He recommended that she modify her work program to “4 hours per day regular and 4 hours per day of non-typing/non-key entry/non repetitive pattern.” He wrote:
“[A]t her present workload pattern, I believe that she may end up developing a CTS on the left that would require surgical intervention.
“Based on the above, our plan today will be to provide her this modified work program, have her follow Tuesday and check response with regard to her and her employer and availability of work pattern.
“Based on symptoms on the left, additional treatment options maybe required.”
When Depew returned on September 17, she told Dr. Melhom that her wrists and elbows, both right and left, ached. With regard to her modified work program of 4 hours of regular work alternating with 4 hours without typing, key entry, or repetitive motions, Dr. Melhom wrote: “[S]he just can’t sit at work and not work and so even though her employer tried to accommodate, she basically worked a regular eight hour plus day.” In order to decrease the risk of further deterioration of the condition of her left hand and arm, Dr. Melhom further modified her work program. She was to be limited to 6 hours of work a day with alternating 2-hour blocks of regular work activities, “which may include typing,” with 2-hour blocks of “regular work non-typing.” On October 18, Depew reported to Dr. Melhom that her right hand and arm remained symptomatic and that the symptoms in her left hand and arm were gradually increasing.
In mid-December, Depew was sent by her employer to Dr. Lucas, another orthopedic surgeon. He agreed with Dr. Melhom that her condition would not improve if she continued performing her work activities, and she was advised not to return to work. It is agreed that her last day of work for NCR was December 16,1991.
Dr. Lucas testified that he understood that Depew’s work activities consisted of secretarial work and “computer sorts of things.” In his opinion, the condition of her hands and arms was related to her work activity. With respect to her right hand and arm, Dr. Lucas stated on direct examination “that her return to work probably didn’t cause her to have more symptoms.” On cross-examination, however, he agreed that “the problem in the right had never gone away and it was just sort of a flare-up of symptoms of the same situation.” He thought that she had returned to work “quite early following her surgery and so she probably had never gotten over it in the first place.” He viewed the conditions in her left and right extremities to be separate conditions, both causally related to the type of work she performed. He also believed that she may have had some predisposition to develop her conditions and that she probably would not have developed the “problems” on her left side if she had not favored the right by reducing its activity and thereby subjecting the left to an increase in work activities. Although he agreed that “if it hadn’t been for the problems on the right side, the problems on the left probably wouldn’t have occurred,” Dr. Lucas also agreed that “unless and except for th[e] type of work, these symptoms would not have developed in the left hand.”
Dr. Jones, an orthopedic surgeon who specialized in hand surgery, examined Depew in July 1992. He understood that Depew’s work activities at NCR consisted of “keyboard all day long.” In his opinion, the condition of Depew’s right hand and arm is “related to 13 years of computer entry.” Asked if he thought that the condition of her right extremity contributed to the development of her left upper extremity condition, Dr. Jones testified:
“A. Usually what we see, if they got a bilateral they get one done, as soon as one is done and then the opposite one starts giving them more problems.
“Q. So is there a causal relationship, in your opinion, between the right carpal tunnel and the developing of symptoms with respect to the right [sic] carpal tunnel?
“A. The right one’s bound up for six weeks and they overuse it and probably get symptoms because of that.
“Q. When you say overuse it, you’re mentioning the left hand?
“A. That’s correct.” (Emphasis added.)
Dr. Jones also testified that Depew had used both hands in operating her computer keyboard, that she “should have” had some permanent impairment of her right hand at the time she returned to work after surgery, and that “going back to work aggravated that.”
The ALJ stated that the parties stipulated to all necessary elements of the claim, including wages, benefits, and medical expenses, and that Depew’s injury arose by accident out of and in the course of employment. The work activity responsible for the injury was not specified. The ALJ determined that Depew had a “permanent partial general body work disability.” On review, the Board adopted the stipulations stated by the ALJ. The work activity responsible for the injury was not specified. The Board determined that “claimant has not established a simultaneous injury but has, instead, established two separate [scheduled] injuries.” The Court of Appeals affirmed the decision of the Board.
We first consider whether the claimant should have been compensated for a permanent partial general disability or for two separate scheduled injuries. The current state of the law with regard to workers’ injuries to both right and left upper extremities is succinctly stated in the Court of Appeals’ opinion:
“Scheduled injuries are set forth in K.S.A. 44-510d. In particular, 44-510d(13) provides that compensation for loss of an arm shall not exceed 210 weeks. Where specified combination injuries occur, 44-510c(a)(2) requires that they be treated as a permanent total disability rather than as scheduled injuries. K.S.A. 44-510c(a)(2) has been extended by case law to allow compensation for certain combination injuries based on permanent partial disability. See Hardman v. City of Iola, 219 Kan. 840, 844, 549 P.2d 1013 (1976). In Murphy v. IBP, Inc., 240 Kan. 141, 144, 727 P.2d 468 (1986), the Supreme Court held that simultaneous aggravation to both arms and hands through repetitive use removes the disability from a scheduled injury and converts it to a general disability.” 23 Kan. App. 2d at 465-66.
The Court of Appeals first dealt with Depew’s contention that she should have been compensated for a general bodily disability rather than two separate scheduled injuries under the holding in Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994). The Court of Appeals concluded that Berry
“addressed a question totally separate from the one presented here. Berry established a method for determining the date of accident for a worker with carpal tunnel syndrome. Berry did not involve the question whether compensation for carpal tunnel syndrome should be based on a scheduled injury or on a general disability.” 23 Kan. App. 2d at 466.
In this court, Depew takes exception to the Court of Appeals’ view of Berry. She contends that Berry “addressed directly and explicitly the exact issue in the case at bar.” She directs the court’s attention to the following portion of the opinion:
“Our analysis to this point has demonstrated the complexities in fixing the ‘date of injury’ or ‘date of occurrence’ in a carpal tunnel syndrome case. We hold that the claimant’s date of injury as to his left wrist and as to his bilateral carpal tunnel condition will be the same — the last day he worked for respondent. This offers simplicity and establishes uniformity in the process in dealing with carpal tunnel syndrome cases. It also eliminates the problem of sorting out a scheduled injury from an injury which has caused permanent partial general disability. Since the disability is to be computed from the last day of work, we have one injury, that being a bilateral carpal tunnel injury, and only one injury on which to determine claimant’s disability.” Berry, 20 Kan. App. 2d at 227.
In Berry, a disability benefit claim was filed by Berry for problems with his left fingers and hand in May 1987. The next month, an orthopedic surgeon diagnosed Berry as having carpal tunnel syndrome in his left wrist. Berry was fired when he refused a position that accommodated his condition. His last day of work was August 27, 1987. After he no longer worked at Boeing, Berry had surgery on his left wrist. That is when he developed symptoms in his right hand.
The ALJ found that the date of Berry’s bilateral carpal tunnel syndrome was his last day of work at Boeing, August 27, 1987. On review, the Workers Compensation Board agreed that the date of Berry’s “accident” was his last day of work and found the injury to be a permanent partial general disability. In the Court of Appeals, Berry contested the Board’s determination of the date of injury and the extent of disability. There was no cross-appeal from the determination that the injury was a permanent partial general disability rather than a scheduled injury. With regard to the date of injury, Berry argued that it was earlier than July 1987, when certain material changes in the law became effective. 20 Kan. App. 2d at 222.
Depew contends that Berry must be read to permit treatment of bilateral carpal tunnel syndrome as a general body disability irrespective of simultaneous aggravation. In other words, she argues that Berry dictates that result in the present case even given the Court of Appeals’ finding that the aggravation of her forearms was not simultaneous. The Court of Appeals stated with regard to the scope of Berry:
“[I]n Berry the court simply inferred that the worker suffered a simultaneous aggravation based on the fact that the Board applied the permanent partial general disability statute. 20 Kan. App. 2d at 227. Berry only mentions 44-501d and Murphy in passing. Berry certainly does not purport to modify the simultaneous aggravation rule adopted in Murphy.
“In short, Berry defines the date of injury for a worker who suffers carpal tunnel syndrome. Although there is some dicta in Berry which might suggest otherwise, 20 Kan. App. 2d at 227, we do not read Berry as an attempt to overturn Murphy by implication.” 23 Kan. App. 2d at 466-67.
This reasoning is sound. Although Berry demonstrates the difficulty in applying workers compensation statutes to bilateral carpal tunnel syndrome injuries, it does not conflict with our holding in Murphy v. IBP, Inc., 240 Kan. 141, 727 P.2d 468 (1986). We agree with the Court of Appeals that Depew’s reliance on Berry is misplaced.
We next consider Depew’s argument that by affirming the Board’s decision, the Court of Appeals "violated” our decision in Murphy. The Court of Appeals distinguished Murphy from the present case on the following ground:
“Unlike Murphy and many of the bilateral carpal tunnel cases which arise in the meat packing industry, this case involves work that Depew performed with one hand. She used the right hand to grip her computer mouse, and she developed carpal tunnel symptoms in her right hand. After she had surgery on her right hand, she switched to her left hand to grip the mouse. After she began to use her left hand to grip the mouse, she developed carpal tunnel symptoms in her left hand.” 23 Kan. App. 2d at 468.
The premise upon which the Court of Appeals finds Murphy distinguishable from the present case is faulty. This is not a case involving work performed with one hand. The Court of Appeals’ focus on Depew’s one-handed use of the computer mouse, to the exclusion of her two-handed use of the computer keyboard, as the cause of her condition is not supported by the medical evidence. None of the medical testimony would support a finding that her use of the mouse could be singled out as the cause of her condition. Dr. Jones testified that he understood that Depew’s work activities at NCR consisted of “keyboard all day long.” In his opinion the condition of Depew’s right hand and arm is “related to 13 years of computer entry.” Dr. Lucas testified that he understood that Depew’s work activities consisted of secretarial work and “computer sorts of things.” In his opinion, the condition of her hands and arms was related to her work activity. Unlike the testimony of the other two doctors who had examined Depew, Dr. Melhom’s notes do contain a few references to her use of a computer mouse, not solely but always in conjunction with other activities. Review of Dr. Melhom’s notes of 25 office visits and several telephone calls during 1991 reveals the following references to use of a mouse, none of which could be characterized as his attributing Depew’s condition to it:
1. March 18 — “Work History: . . . Patient performs secretarial duties and uses a mouse a lot.”
2. May 17 — “She states she types and uses the mouse all day long.”
3. May 21 — “She has been doing the mouse work activities, etc.”
More relevant with respect to causation is that Dr. Melhom never restricted her use of a mouse. Instead, he took note of the long hours she worked and restricted the number of consecutive and total hours she could do keyboard work in a workday:
1. September 9 — “She indicates that today, for example, she’s been up and typing since 5:45 a.m.”
2. September 13 — “I feel it would be in her best interests from a medical point of view to be on a work level of 4 hours per day regular and 4 hours per day of non-typing/non-key entiy/non repetitive pattern.”
3. September 17 — “[A]dditional work guides will be provided. This will be two hours of regular type work which may include typing, two hours regular work non-typing, two hours of regular work typing and then she’ll be considered off two hours so that her total workday will be six hours at this point.”
If Dr. Melhom had believed that it was use of the mouse that was causing Depew’s symptoms, he easily could have restricted that discrete activity — in particular, using the mouse to produce drawings.
The Court of Appeals found it significant that “two doctors testified that Depew did not have any aggravation of her right hand after she returned to work.” 23 Kan. App. 2d at 468. The two doctors who testified were Dr. Lucas and Dr. Jones. We do not interpret the testimony of either doctor as did the Court of Appeals. There is apparently some confusion caused by use of the word “aggravation” to mean an increase or worsening of symptoms rather than repetitive trauma, as it was used by this court in Murphy. Dr. Lucas’ testimony is not very clear, but we do not interpret it as rejecting the proposition that there was aggravation of her right hand after Depew returned to work after surgeiy. Dr. Jones expressly stated that the condition in Depew’s right hand was aggravated by her returning to her work activities. It is entirely possible that Dr. Jones was not using “aggravated” as it was used in Murphy, but, even so, there is no basis for the Court of Appeals’ statement.
The Court of Appeals believed that it had found in the medical evidence a basis for concluding that the injury to Depew’s left hand was caused by her use of the mouse in that hand. Although the medical evidence possibly may be susceptible to differing inferences, it leads to fixe conclusion that Depew’s left hand became symptomatic during the period when she was using the mouse with her left hand but not to the conclusion that using the mouse was specified to be the cause of the injury to her left forearm. Asked whether there was a causal relationship between the conditions of the right and left forearm, Dr. Jones answered:
“A. Usually what we see, if they got a bilateral they get one done, as soon as one is done and then the opposite one starts giving them more problems.
“Q. So is there a causal relationship, in your opinion, between the right carpal tunnel and the developing of symptoms with respect to the right carpal tunnel?
“A. The right one’s bound up for six weeks and they overuse it and probably get symptoms because of that.
“Q. When you say overuse it, you’re mentioning the left hand?
“A. That’s correct.”
The Court of Appeals seems to have viewed this testimony as establishing that “the aggravation of her left arm occurred after she returned to work.” (Emphasis added.) 23 Kan. App. 2d at 468. A careful reading of the questions and answers, however, shows that a more plausible interpretation is that Dr. Jones based his responses on the premise that the aggravation, as that term is used in Murphy to signify the repetitive trauma, had damaged both forearms before surgery was performed on one. He stated his premise as follows — “if they got a bilateral they get one done.” After surgery on one forearm, heavier than usual use of the other leads to manifestation of symptoms in it.
Dr. Lucas agreed that “if it hadn’t been for the problems on the right side, the problems on the left probably wouldn’t have occurred” and that “unless and except for th[e] type of work, these symptoms would not have developed in the left hand.”
Dr. Melhom’s records, in particular the restrictions he placed on Depew’s work activities, do not support the Court of Appeals’ interpretation. Use of the mouse is never specified as an activity to be avoided or limited. Typing, key entry, and other activities involving repetitive movements were identified.
Depew’s testimony is the only evidence from which the Court of Appeals could have inferred that a one-handed activity caused Depew’s injury. One of the tasks she performed was making detailed drawings, which relied to a great extent on use of the computer mouse. She testified that on average she spent one workday a week making drawings. She held the mouse with her right hand until after she returned to work after her surgery when she started using her left hand “because [her] right hand was hurting.” In addition to using her left hand for the mouse, she used it “for everything that [she] could use it for,” including carrying bulky loads. She testified that in July her left hand started tingling and within 2 to 3 weeks pains were shooting up her left arm. Her injury is compression of nerves in her forearms as a result of repetitive trauma. It is an injury which may not be diagnosed or manifested until the trauma has been discontinued, thus complicating correlation of pain with the cause of the damage. She did not render an opinion, nor, as a layperson, could she as to the cause of damage to a nerve or nerves.
Generally, a finding by the Board will be upheld by an appellate court if it is supported by substantial competent evidence, which has been defined by this court as “evidence possessing something of substance and relevant consequence, and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved.” Gleason v. Samaritan Home, 260 Kan. 970, Syl. ¶ 2, 926 P.2d 1349 (1996). In the present case, neither the ALJ nor the Board made a specific finding of the proximate cause of Depew’s condition. Thus, when the Court of Appeals specified use of the mouse as the cause and based its decision in large measure on that cause being a one-handed activity, it was enlarging upon the Board’s findings. Even applying the deferential standard for judicial review of agency findings, the Court of Appeals’ finding cannot be sustained.
All the medical evidence indicates that it was the two-handed activity of use of the computer keyboard, which at times would include use of the mouse, that led to the development of Depew’s condition. The sequential manifestation of the injuries does not lead to a different conclusion. In fact, it is entirely consistent with this court’s understanding of repetitive trauma injuries to the forearms of workers as expressed, for example, in Murphy.
In Murphy, IBP argued that there must be a simultaneous injury to both arms rather than an injury resulting from simultaneous periods of aggravation. In rejecting IBP’s argument, this court adopted the reasoning of the Court of Appeals in Downes v. IBP, Inc., 10 Kan. App. 2d 39, 691 P.2d 42 (1984), rev. denied 236 Kan. 875 (1985):
“ T. As early as 1919 a compensable “accident,” as understood in workers’ compensation law, was defined to include a situation where the physical structure of the worker gives way under the stress of usual labor. Gilliland v. Cement Co., 104 Kan. 771, 777, 180 Pac. 793 (1919).
“ ‘2. In 1949 the court stated, “[i]f injury occurring as the result of a single accident is compensable, surely we will not declare that injury resulting from a dozen or more of the same or similar accidents, all occurring in the course of the employment, is noncompensable.” Winkelman v. Boeing Airplane Co., 166 Kan. 503, 508, 203 P.2d 171 (1949). See also Demars v. Rickel Manufacturing Cor poration, 223 Kan. 374, 573 P.2d 1036 (1978).’ Downes v. IBP, Inc., 10 Kan. App. 2d at 41.” 240 Kan. at 144.
This court added that aggravation to Murphy’s arms and hands was simultaneous even though the injuries had not manifested themselves absolutely simultaneously. Although the court did not eliminate the requirement of simultaneous aggravation, it permitted nonsimultaneous manifestation of forearm injuries to be treated as a general bodily disability. The holding was stated as follows: “[W]here a claimant’s hands and arms are simultaneously aggravated, resulting in work-related injuries to both hands and arms, the injury is compensable as a percentage of disability to the body as a whole under K.S.A. 44-510e.” 240 Kan. at 145.
Here, as in Murphy, the aggravation to Depew’s left and right forearms was simultaneous. We find no substantial competent evidence to the contrary and, therefore, pursuant to the rule set out in Murphy, Depew’s injuries are compensable as a percentage of disability to the body as a whole and not in separate scheduled injuries.
In the Court of Appeals, Depew also argued that the Board’s decision violated her right to equal protection under the federal Constitution. The Court of Appeals observed that Depew had not raised the issue below and stated: “Where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. Murphy, 240 Kan. at 148.” 23 Kan. App. 2d at 470. Thus, the issue is not before us in this appeal.
We reverse the judgment of the Court of Appeals, reverse the order of the Board, and reinstate the ALJ’s award.
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The opinion of the court was delivered by
Larson, J.:
This workers compensation appeal questions the construction of K.S.A. 44-519 relating to usage of written reports of health care providers by a vocational rehabilitation expert without the testimony of the health care provider being properly admitted as competent evidence in a proceeding for the determination and collection of compensation.
Jamie D. Roberts appealed the Workers Compensation Appeals Board (Board) decision that it would not consider the testimony of a vocational rehabilitation expert as to her work disability. The expert’s opinion was based upon restrictions and recommendations contained in medical reports of physicians which were not admitted as competent evidence in the case.
The Court of Appeals reversed the Board in Roberts v. J. C. Penney Co., 23 Kan. App. 2d 789, 935 P.2d 1079 (1997), holding that K.S.A. 44-519 applies only when a party seeks to admit the report of a health care provider and that vocational rehabilitation experts may rely on the reports of health care providers which have not been introduced into evidence.
We granted the petition for review of the respondent, J.C. Penney Company (J.C. Penney), and its insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual). For the reasons hereinafter stated, we reverse the Court of Appeals and affirm the Board’s decision.
Factual and procedural background
Roberts suffered a work-related back injury in February 1990. She continued working for several weeks until the pain became too severe. In September 1990, Roberts was referred to Dr. Roger Jackson, who eventually performed back surgery on her. Roberts contends she remains impaired and is unable to obtain gainful employment.
Dr. Edward J. Prostic, an orthopedic surgeon who examined and evaluated Roberts, testified in his deposition that she had sustained a 40% functional impairment due to her injuries and was capable of performing only light-duty employment.
Roberts’ vocational rehabilitation expert, Michael Dreiling, conducted an extended telephone conference with Roberts and reviewed the medical records of Dr. Jackson and other treating or examining physicians. Dreiling formed the opinion that Roberts suffered a 100% work disability, based upon the restrictions and recommendations found in these reports and upon her work background. Dr. Jackson’s deposition was not taken, nor were his records introduced into evidence. A few of Dr. Jackson’s reports were included in the court’s vocational rehabilitation file.
Monty Longacre, the vocational rehabilitation expert for J.C. Penney and Liberty Mutual, reviewed the deposition and medical records of Dr. Prostic, read the regular hearing transcript, and held a telephone interview with Roberts. He testified in his deposition that Roberts had suffered a 36% loss of her ability to access jobs in the open labor market and no loss of her ability to earn comparable wages.
The ALJ considered the opinions of both Dreiling and Longacre in finding Roberts had suffered a 59% permanent partial disability as a result of her work-related injury.
In meeting the argument that K.S.A. 44-519 precluded consideration of Dreiling’s testimony and opinion, the ALJ stated:
“In my opinion the case of Boeing Military Airplane Company v. Enloe, 13 Kan. App. 2d 128, 764 P.2d 462 (1988), rev. denied, 244 Kan. 736 adequately disposes of this argument. It is there held that K.S.A. 44-519 does not limit the information a testifying physician or surgeon may consider in rendering his or her opinion as to the condition of an injured employee. Further, K.S.A. 44-519 does not prevent a testifying physician from considering medical evidence generated by other absent physicians as long as the testifying physician is expressing his or her own opinion rather than the opinion of the absent physician. In addition, when a claim is made that evidence was erroneously admitted in a workers compensation proceeding the court will affirm when the decision is based on substantial and satisfactory evidence even though some evidence is not technically admissible under the rules of evidence. In 13 Kan. App. 2d at page 130 the court stated: ‘the statute [K.S.A. 44-519] literally applies only when a party seeks to introduce a report or certificate of a physician or surgeon into evidence.’ The court further noted at page 131 that a contrary interpretation would unduly complicate workers compensation proceedings, create more expense and delay the resolution of claims for injured workers. I hold that this rationale extends to the opinions of vocational experts.”
Both parties requested review by the Board. Pointing out that Dreiling had based his conclusions upon the opinions of physicians that did not testify and whose reports were not placed into evidence, the Board ruled the ALJ had erred in considering Dreiling’s opinion. The Board stated:
“ The determination of loss of ability to perform work in the open labor market and loss of ability to earn comparable wages is critical in determining an injured worker’s right to permanent partial disability benefits under K.S.A. 1989 Supp. 44-510e. Unless the medical information utilized by the labor market expert is part of the evidentiary record, the expert’s opinion that is based upon that information is without foundation and should not be considered by the trier of facts when timely objections are lodged. To hold otherwise would be to circumvent the intent of K.S.A. 44-519 (Ensley) that provides that no report of any examination by a health care provider is competent evidence to be considered in a workers compensation proceeding unless it is supported by the health care provider’s testimony. Although claimant had the opportunity to introduce the medical opinion either by deposition or stipulation, the medical information considered by Mr. Dreiling and which constituted the primary basis for his opinions was never introduced into the evidentiary record.”
Based upon the opinion of Longacre, the Board concluded Roberts had suffered an 18% work disability.
In reinstating the award of the ALJ and reversing the Board, the Court of Appeals relied upon Boeing Military Airplane Co. v. Enloe, 13 Kan. App. 2d 128, 764 P.2d 462 (1988), rev. denied 244 Kan. 736 (1989), and McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 921 P.2d 257 (1996), to hold:
“Boeing and McKinney provide three important rules of law applicable to the present case: (1) Medical testimony is not required to establish a claimant’s work disability rating; (2) neither the ALJ nor the Board is bound by technical rules of evidence; and (3) K.S.A. 44-519 applies only when a party introduces a medical report of a nontestifying physician as evidence. Here, the ALJ correctly ruled that a vocational expert could rely on the medical reports of nontestifying physicians which had not been introduced as evidence in the proceeding.” 23 Kan. App. 2d at 793.
Analysis
Our applicable standard of review of the decision of the Board is set forth in Gleason v. Samaritan Home, 260 Kan. 970, 975-76, 926 P.2d 1349 (1996), where we stated:
“The 1993 amendments to the Kansas Workers Compensation Act specifically adopt the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., for workers compensation appeals. K.S.A. 1995 Supp. 44-556. The KJRA further states that such review shall be limited to questions of law. K.S.A. 1995 Supp. 4-556(a). The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 222-23, 885 P.2d 1261 (1994).”
In this case we are required to construe a statute following its review by the Board, giving rise to our rules relating to interpretations by a state agency. We recently recognized these rules in In re Application of Zivanovic, 261 Kan. 191, 929 P.2d 1377 (1996), as follows:
“It is the function of a court to interpret a statute to give it the effect intended by the legislature.” Syl. ¶ 1.
“The ruling of an administrative agency on questions of law, while not as conclusive as its findings of facts, is nonetheless persuasive and may carry with it a strong presumption of correctness.” Syl. ¶ 2.
“The party challenging the validity of the agency’s action bears the burden of proving the invalidity of the action.” Syl. ¶ 3.
“Usually, interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to great judicial deference. The agency’s interpretation of a challenged statute may, in fact, be entided to controlling significance in judicial proceedings. Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review.” Syl. ¶ 4.
Although a question similar to the one now before us was raised in Gleason, 260 Kan. at 978, it was not necessary to that opinion to decide this issue, which is one of first impression to this court.
We first set forth the statutory provisions and administrative regulations upon which our decision will rest.
K.S.A. 44-519 is directly in issue and provides in its entirety:
“No report of any examination of any employee by a health care provider, as provided for in the workers compensation act and no certificate issued or given by the health care provider making such examination, shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible.”
K.S.A. 44-523 relates to the hearing procedures in compensation cases and, in applicable part, states:
“(a) The director, administrative law judge or board shall not be bound by the technical rules of procedure, but shall give the parties reasonable opportunity to be heard and to present evidence, insure the employee and the employer an expeditious hearing and act reasonably without partiality.”
Additionally, K.A.R. 51-3-5a, although it relates to procedures for preliminary hearings, contains the following statements concerning medical reports:
“Medical reports or any other records or statements shall be considered by the administrative law judge at the preliminary hearing. However, the reports shall not be considered as evidence when the administrative law judge makes a final award in the case, unless all parties stipulate to the reports, records or statements or unless the report, record or statement is later supported by the testimony of the physician, surgeon or other person making the report, record or statement.”
The ALJ and Court of Appeals relied on Boeing Military Airplane Co. v. Enloe, 13 Kan. App. 2d 128, a decision allowing a testifying physician who is rendering his or her own opinion to form that opinion in part on the claimant’s past medical records. The Boeing court held:
“K.S.A. 44-519 does not limit the information a testifying physician or surgeon may consider in rendering his or her opinion as to the condition of an injured employee.” Syl. ¶ 2.
“K.S .A. 44-519 does not prevent a testifying physician from considering medical evidence generated by other absent physicians as long as the testifying physician is expressing his or her own opinion rather than the opinion of the absent physician.” Syl. ¶ 3.
In explanation of this holding, the court stated:
“Doctors commonly rely on reports furnished by other doctors in arriving at their own diagnoses. The Fund’s interpretation of K.S.A. 44-519 would require each of these other doctors to testify. This would set a standard more stringent than the one which governs admissibility of expert opinions in civil trials. See K.S.A. 60-456(b); see also Box v. Cessna Aircraft Co., 236 Kan. 237, 243-44, 689 P.2d 871 (1984) (‘The admissibility of evidence is more liberal in compensation cases, not more restrictive.’) Contrary to the long-established policy that the Workmen’s Compensation Act should be construed to allow ‘the speedy adjustment of claims under it,’ [citation omitted], the Fund’s interpretation would unduly complicate workers’ compensation proceedings, create more expense, and delay the resolution of claims for injured workers.” 13 Kan. App. 2d at 131.
Boeing was decided in 1988, and in 1990, 44-519 was amended to replace the reference to physicians and surgeons with “health care provider” (L. 1990, ch. 182, § 9), which was defined as “any person licensed, by the proper licensing authority of this state, another state or the District of Columbia, to practice medicine and surgeiy, osteopathy, chiropractic, dentistry, optometry, or podiatry.” L. 1990, ch. 183, § 1; see K.S.A. 44-508(i). This may have had the effect of broadening the holding of Boeing to a wider group of health care professionals but does not appear to show any legislative intent to exclude or include vocational rehabilitation experts from or within the holding.
Boeing is certainly a significant decision, but extension of its holding to require consideration of Dreiling’s testimony and opinion is not easily justified.
In McKinney v. General Motors Corp., 22 Kan. App. 2d 768, the Court of Appeals resolved an apparent conflict between K.S.A. 44-510e(a) and K.S.A. 44-519. K.S.A. 44-510e(a) states that when an employer and employee are unable to agree upon the employee’s functional impairment, the ALJ shall refer such matters to an independent health care provider, who “shall issue an opinion regarding the employee’s functional impairment which shall be considered by the administrative law judge in malting the final determination.”
General Motors argued the medical report was not competent evidence unless the report is supported by admissible testimony of the health care provider who prepared the report, relying on K.S.A. 44-519. The claimant argued the report was generated by the requirements of K.S.A. 44-510e(a) and must be considered by the ALJ regardless of whether there is supporting testimony. It is important to note that in the factual statement in McKinney, the ALJ informed the parties at the regular hearing that they were free to cross-examine Dr. Hood about his report, which none of the parties elected to do.
The McKinney court cited K.S.A. 44-523 and Box v. Cessna Aircraft Co., 236 Kan. 237, 243-44, 689 P.2d 871 (1984), for the proposition that the ALJ and the Board are not bound by technical rules of procedure and are to give the parties a reasonable opportunity to be heard and present evidence. In pointing out that medical evidence is not essential to the establishment of the existence, nature, and extent of an injured worker s disability, pursuant to Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 201, 547 P.2d 751 (1976), the McKinney opinion held:
“The policy, structure, and intent behind the Act supports construing K.S.A. 44-510e(a) and K.S.A. 44-519 to allow the neutral medical report to be admitted into evidence without requiring supportive testimony. Under an integrated interpretation of K.S.A. 44-510e(a) and K.S.A. 44-519, the absence of testimony supporting the report does not make it inadmissible. GM's interpretation of these statutes, after deciding not to cross-examine Dr. Hood, is the equivalent of inviting error.” 22 Kan. App. 2d at 772.
While the ALJ relied on a plausible extension of the holding in Boeing to apply the exception to vocational rehabilitation experts in the same manner as allowed to health care providers, the Court of Appeals selected and extended portions of both Boeing and McKinney to reach its desired result. We would not extend either decision beyond its specific facts and holdings, as such extension would have the effect of gutting K.S.A. 44-519 of any significance and meaning. Such a holding would allow consideration of an opinion lacking a proper legal foundation and not based on competent evidence admitted into the record.
The first rule offered by the Court of Appeals to support its holding derives from Chinn. Although this case does state that “[t]he existence, nature and extent of the disability of an injured workman is a question of fact [citations omitted]” and “[m]edical testimony is not essential to the establishment of these facts [citation omitted],” 219 Kan. at 201, these statements do not support a finding that a vocational rehabilitation expert is entitled to give an opinion as to a disability rating. Rather, the Chinn rule simply indicates the fact of injury need not be established by a health care provider. Consistent with this rule, a vocational rehabilitation expert could testify as to factual observations regarding the claimant; however, the rule is not authority for a vocational rehabilitation expert to form medical opinions or to offer an opinion based on medical recommendations and restrictions not in the record. The underlying and critical distinction lies on the basic evidentiary requirement that a proper, competent foundation must be present before opinion evidence may be presented.
Next, in stating the ALJ and Board are not bound by “technical rules of evidence,” the Court of Appeals relied upon McKinney and the wording of K.S.A. 44-523(a), which.was previously set forth herein. However, this misses the point that K.S.A. 44-519 is not a technical rule of evidence. Rather, it is a specific legislative mandate.
The McKinney opinion did not treat 44-519 as a “technical rule” to be cast aside whenever necessary to reach an intended result, but rather treated it as a statutory provision in perceived conflict with another and later provision. The fact that K.S.A. 44-510e(a) was given precedence under the specific circumstances in McKinney, including the failure of the parties to exercise an opportunity for cross-examination, can in no manner be considered a relegation of K.S.A. 44-519 to mere technical stature.
A better construction of K.S.A. 44-523 was presented in Ochoa v. Swift & Co., 200 Kan. 478, 480, 436 P.2d 412 (1968), which expressed: “[I]f the decision is based on substantial and satisfactory evidence, relevant, reasonable, and persuasive, though not technically admissible under the rules of evidence governing procedure under the civil code, the decision will be upheld. [Citations omitted.]” This language indicates that the “technical rules of procedure” are those rules of civil procedure located in Chapter 60 of the Kansas statutes, particularly the rules of evidence set forth in Article 4.
The third rule presented by the Court of Appeals to decide the present case was derived from Boeing, 13 Kan. App. 2d at 130, which stated 44-519 “literally applies only when a party seeks to introduce a report or certificate of a physician or surgeon into evidence.” We see little significance to this emphasis, as “a party” is clearly either the claimant or respondent and its insurance carrier, and thus all contestants are permitted to benefit from Boeing’s interpretation of 44-519.
The holding of Boeing that most applies to the present case is best expressed in syllabus ¶ 3: “K.S.A. 44-519 does not prevent a testifying physician from considering medical evidence generated by other absent physicians as long as the testifying physician is expressing his or her own opinion rather than the opinion of the absent physician.” (Emphasis added.)
In the present case, the vocational rehabilitation expert is not qualified to express his own opinion regarding the medical evidence and must rely upon the opinions of health care providers in order to form an opinion. Therefore, his opinion merely reflects and expresses the medical opinions of absent health care providers. The holding of Boeing appears to specifically bar this type of bootlegging into evidence, unless the evidence from the absent physicians is grounded on the opinion of a testifying physician.
Furthermore, allowing a vocational rehabilitation expert to so testify is contrary to our long-established rule that expert testimony must be based upon competent evidence. In State v. Marks, 231 Kan. 645, 655, 647 P.2d 1292 (1982), we quoted from the often-cited case of Klein v. Wells, 194 Kan. 528, 539, 400 P.2d 1002 (1965): “ It has long been settled that an expert witness may base his opinion upon matters within his personal knowledge or observation, or upon competent evidence in the case, or upon both.’ ” See also Van Welden v. Ramsay’s Inc., 199 Kan. 417, 422, 430 P.2d 298 (1967) (“An expert witness may base his opinion upon competent evidence in the case.”).
K.S.A. 44-519 declares that no report or certificate of a health care provider is competent evidence in any workers compensation proceeding unless supported by admissible testimony of that provider. Black’s Law Dictionary 284 (6th ed. 1990) defines competent evidence as “[t]hat which the very nature of the thing to be proven requires.”
In the present case, the validity and accuracy of the evidence considered by Dreiling from the absent physicians could not be tested, and his opinion was based on a statutorily prohibited insufficient foundation. Dreiling, who was not competent to testify as to a medical opinion, generated an opinion from the reports of nontestifying health care providers and, thereby, effectively offered the incompetent reports as justification for his own opinion.
This markedly differs from the situation in Boeing, where medical experts were generating their own proof regarding the underlying matter, despite reliance upon other medical records. Such medical experts have the training and experience to interpret and evaluate the soundness of other medical reports and also have the expertise to form their own medical opinions. Vocational rehabilitation experts, however, do not have medical expertise and are not competent to assess the soundness of medical opinions in the reports of health care providers. Nor may they formulate their own medical opinions.
Furthermore, in situations similar to Boeing, medical experts may be cross-examined regarding the basis for their own medical opinions and may be questioned as to their assessment of the reliability of the data and opinions they have examined and utilized. Vocational rehabilitation experts, on the other hand, cannot be cross-examined regarding the soundness of the medical opinions they have relied upon.
Another case recently decided by the Court of Appeals, Sims v. Frito-Lay, Inc., 23 Kan. App. 2d 591, 933 P.2d 161 (1997), provides additional support for the proposition that 44-519 should not easily be extended. Sims discussed whether an ALJ properly considered an additional portion of the opinion of an independent health care provider, who was not deposed, that went beyond the issues requested by the ALJ. In finding that this portion of the physician’s opinion should not have been considered, the Sims court noted:
“The Board, in another case, ruled that K.S.A. 44-510e(a) supersedes K.S.A. 44-519. See McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 771, 921 P.2d 257 (1996). In our view, that statement is overbroad. Rather, it appears to us that K.S.A. 44-510e(a) merely creates a narrow exception to the general rules of K.S.A. 44-519. While a medical report must normally be supported by a health care provider’s testimony, the administrative law judge may consider the report of an independent health care provider regarding a claimant’s functional impairment without the health care provider’s supporting testimony. See McKinney, 22 Kan. App. 2d at 772.” 23 Kan. App. 2d at 593.
It is clear that in K.A.R. 51-3-5a, the administrative regulation relating to preliminary hearings, previously set forth, a special rule has been fashioned to allow medical reports or records to be considered by the ALJ at the preliminary hearing. The specific requirement and literal application of K.S.A. 44-519, however, is preserved in the regulation, which states:
“However, the reports shall not be considered as evidence when the administrative law judge makes a final award in the case, unless all parties stipulate to the reports, records or statements or unless the report, record or statement is later supported by the testimony of the physician, surgeon or other person making the report, record or statement.” K.A.R. 51-3-5a.
Rather than rendering this statute without practical effect, this regulation clearly upholds the requirement that 44-519 must be followed as written.
Workers compensation proceedings have been and remain adversarial proceedings. Hearings are held before ALJ’s. K.S.A. 44-523(b). Awards are entered. K.S.A. 44-523(c). Appeals are authorized. K.S.A. 44-551, K.S.A. 44-556. Attorneys represent claimants, respondents, insurance carriers, and self-insureds. It is essential that a record exists upon which a measured award can be entered and a meaningful appeal can be taken.
We are not unaware of the decisions holding that “ '[t]he rules of evidence, K.S.A. 60-401 et seq., are not applicable in workers’ compensations proceedings. [Citations omitted]. The admissibility of evidence is more liberal in compensation cases, not more restrictive.’ ” Rodriguez v. Henkle Drilling & Supply Co., 16 Kan. App. 2d 728, 738, 828 P.2d 1335, rev. denied 251 Kan. 939 (1992) (quoting Box v. Cessna Aircraft Co., 236 Kan. at 243-44). History, however, shows that the predecessor statute to K.S.A. 44-519 was enacted in 1927. L. 1927, ch. 232, § 18. This statute has only been amended once, which was in 1990 to expand its scope to health care providers, as we have previously discussed. The workers compensation system has been well served by requiring the opinions of experts to be based on testimony subject to cross-examination, and if this is to be changed, we believe the legislature should do so and not this court. We do not perceive the burden which is placed on claimants or respondents to be onerous. If lesser standards are to be adopted, we are confident they can be provided for by legislative action after full public involvement. See, e.g., Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591 (1997) (upholding 1993 amendments to Workers Compensation Act which made substantial changes).
Finally, we hold this is one of those cases where the ruling of the Board should be considered persuasive, is entitled to great judicial deference, and carries , with it a strong presumption of correctness. See Zivanovic, 261 Kan. 191, Syl. ¶¶ 2-4.
We accepted review of this matter to consider the Court of Appeals’ construction of K.S.A. 44-519. The Court of Appeals did not comment on or base its decision on appellees’ acquiescence argument, nor will we do so in this opinion.
The decision of the Court of Appeals is reversed. The decision of the Workers Compensation Board is affirmed.
Lockett, J., not participating.
Richard W. Wahl, Senior Judge, assigned.
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Meyer, J.:
This is an appeal by Arlie Jay Moss (appellant) from his conviction of arson in violation of K.S.A. 21-3718.
Appellant claims the trial court erred in refusing to grant a motion for change of venue herein.
A decision on a motion to change venue is within the sound discretion of the trial court. Before a change of venue is required, prejudice must be shown as a demonstrable reality, and the publication of articles in local newspapers does not, in and of itself, establish prejudice. See State v. Gander, 220 Kan. 88, Syl. ¶ 6, 551 P.2d 797 (1976).
One juror who had been challenged for cause was excused by the court, and another was excused because the juror knew the appellant’s family and had discussed the case; all others were passed “for cause” by the appellant. None of the remaining prospective jurors felt that they would have any problem acting impartially. Appellant did present some sixteen affidavits (notably all identical) indicating publicity was unfavorable to appellant. On the other hand, the State conducted a public opinion poll of some 200 persons selected at random, which resulted in a response from some 81 percent of those polled that they had formed no opinion relative to appellant’s guilt or innocence. The trial court did not abuse its discretion in refusing to grant a change in venue.
Appellant also claims error in that the trial court, over objection by appellant, admitted testimony to the effect appellant had attended a number of fires. Considering appellant’s own admission that he enjoyed helping firemen put out fires, the evidence was relevant to show motive and was thus admissible, especially in view of appellant’s confession to the effect that that is why he started the fire.
Appellant’s contention that the trial court erred in admitting evidence of his confession warrants more extensive consideration. It is noted that appellant is in the lower percentile of intelligence (allegedly in the lower 2.2 percent of the general population), that his intelligence quotient is 63, and that he is a near-retarded person. However, the record discloses that he had an eighth grade education and had “extensive social learnings.” The trial court also found that, in addition, he had been gainfully employed for a number of years, that he had sufficient verbal skills to respond to the officers’ inquiries, and that he waived his Miranda rights knowingly and voluntarily.
In State v. Creekmore, 208 Kan. 933, 934, 495 P.2d 96 (1972), the court held that while the intelligence of a defendant is a factor to be considered in determining voluntariness of a confession, the essential inquiry in determining voluntariness is “whether the statement was the product of the free and independent will of the accused.”
In State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976), defendant alleged that he was incapable of voluntarily and intelligently waiving his right to remain silent due to the fact that he had an I.Q. of 68. The court therein stated:
“The mental deficiencies of the defendant may be an important factor in determining whether or not a confession was voluntarily given. That fact alone, however, is not conclusive evidence on the issue.” 221 Kan. at 170.
The trial court’s determination that the statement was freely, voluntarily and intelligently given was affirmed.
See also Grayson v. State, 438 S.W.2d 553 (Tex. Crim. 1969), where the court admitted the confession of a defendant who had an intelligence quotient of 51; and State v. Edwards, 257 La. 707, 714, 243 So. 2d 806 (1971), where the court held:
“Moderate retardation and a low intelligence quotient do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession.”
Other cases of similar import include State in Interest of A.B.M., 125 N.J. Super 162, 309 A.2d 619, aff'd 63 N.J. 531 (1973) (where defendant had an I.Q. of 66 on one test and 69 in another); Commonwealth v. White, 362 Mass. 193, 196, 285 N.E.2d 110 (1972), where the court said, “We are unwilling to adopt the theory that a low intelligence quotient alone makes an otherwise valid confession inadmissible. . . . [E]ach case must stand on its own merit.” Also, Commonwealth v. Abrams, 443 Pa. 295, 278 A.2d 902 (1971) (where defendant had an I.Q. of 69); and Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970) (where defendant had a verbal I.Q. of 71, performance I.Q. of 75, and full scale I.Q. of 76).
In the instant case the trial court sustained appellant’s motion to suppress insofar as statements made in the early part of the interrogation are concerned. However, a fair interpretation of what the trial court had in mind, as shown by the transcript, indicates the trial court might well have felt that all of appellant’s statements were admissible, but wanted to make sure appellant was given the benefit of any doubt. This is indicated by the trial court’s statement:
“But I think a safer course of action to insure that we don’t have error and to insure that we have the defendant guaranteed his constitutional right that we would suppress the statement that he made to Officer Jager, ‘Yes, I did it’ . . .
Thereupon, the court suppressed the earlier part of appellant’s interview and allowed admission of that part of the interrogation which occurred after Deputy Fire Chief Reese appeared (he having been called at appellant’s request), on the ground that what was said upon Reese’s arrival “refreshed” the Miranda warning. It is apparent the court was being very careful to protect appellant’s rights, perhaps out of an excess of caution. In any event the court did not commit error in admitting that portion of appellant’s statement which it did admit. Neither is it error that the court allowed additional testimony, reconsidered the matter, and thereafter allowed into evidence a portion of the confession after having earlier suppressed all of the confession.
We conclude appellant received a fair trial and that none of his allegations of error have merit.
Affirmed.
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McLaughlin, J.:
This is an appeal by defendants Sugar Valley Lakes and Sugar Valley Development Company, Inc., from the judgment of the District Court of Linn County in favor of plaintiffs John V. and Darlene F. Mustard.
The Mustards brought this action against defendants for cancellation of an installment contract for deed and deprivation of the Mustards’ equitable interest in the land without judicial foreclosure.
On July 28, 1973, the Mustards executed a contract for deed with defendants to purchase Lot 21, Plat 3, Sugar Valley Lakes Subdivision, a recreational development in Linn County, for $3,400. Under the terms of the contract, the Mustards paid $340 down, with the balance to be paid in eighty-four monthly installments of $51.72, including interest at 10.58 percent. The contract included a provision allowing Sugar Valley to terminate the contract thirty days after a written demand to cure a default, to retain all payments made as liquidated damages and rent for use of the property, and to recover possession.
Beginning in December, 1976, the Mustards disputed the amount due on their contract, alleging misapplication of payments. On January 28, 1977, Sugar Valley sent a letter notifying the Mustards that they had sixty days to bring their delinquent account current. This notice stated it complied with the Kansas Uniform Land Sales Practices Act, K.S.A. 58-3301 et seq., notice requirements. A certified letter sent March 18, 1977, informed them unless $355.98 was paid within fourteen days, the grace period would expire April 1, 1977. The Mustards’ check dated March 31, 1977, for $355.98 was returned for insufficient funds twice before Sugar Valley sent a letter April 20, 1977, advising them the contract was cancelled. Sugar Valley indicated the contract was not actually cancelled on their records until June 23, 1977. A letter dated June 28,1977, stated the $206.88 in payments recently received would be returned and reminded the Mustards the contract was cancelled.
On September 30,1977, Sugar Valley resold the plaintiffs’ lot to an employee of the Sugar Valley Lakes Homeowners Association for $1,800 and two trailer park lots in trade. The certificate of value card listed $3,776.67 as the consideration for the lot.
Plaintiffs filed suit September 5, 1978, alleging defendants’ cancellation of the contract deprived them of their equitable interest in land without benefit of judicial foreclosure, numerous unconscionable acts under the Kansas Consumer Protection Act, conversion of the land and payments, and fraud. The petition also sought an accounting of the application of plaintiffs’ payments. A second amended petition alleged violations of the Kansas Uniform Land Sales Practices Act, K.S.A. 58-3301 et seq. Following a pretrial election of remedies, the Kansas Consumer Protection Act violation allegations were dropped. After a second pretrial conference, the trial court ruled plaintiffs had been entitled to equitable foreclosure as a matter of law. The trial court also ruled that the Kansas Uniform Land Sales Practices Act was enacted after the contract was effective and had no retroactive application. The trial court’s memorandum opinion limited the trial to the issue of damages for failure to judicially foreclose plaintiffs’ equitable interest. After hearing the evidence, the trial court found plaintiffs entitled to damages equal to the fair market value of the lot on the date of cancellation, less the principal balance outstanding following various adjustments for misapplied payments.
Sugar Valley appealed the trial court’s ruling that plaintiffs had been entitled to equitable foreclosure as a matter of law and also challenged the measure of damages. At oral arguments, Sugar Valley abandoned the issue of equitable foreclosure, leaving only the issue of damages for review.
In formulating the damages, the trial court found the resale of the lot was not an arm’s length transaction and was therefore not representative of the fair market value of the lot. Based on other testimony regarding adjacent or comparable lot sales, the trial court set a fair market value of $6,000. Neither the fair market value nor the calculation of the outstanding balance of the contract by crediting various disputed payments and applying the Rule of 78’s have been challenged on appeal.
Sugar Valley considers the measure of damages applied to be inequitable under the facts of this case. The relief formulated by the trial court by using the difference between the fair market value of the lot at cancellation and the principal balance outstanding on the contract as the measure of damages returns to plaintiffs their principal payments of $1,651.34 and gives them the appreciated value of $2,600. Defendants retain approximately $900 in interest for the period of plaintiffs’ possession and the lot. Sugar Valley contends the Mustards are not entitled to the appreciated value.
Since Sugar Valley has conceded that the Mustards were entitled to foreclosure a brief survey of judicial relief granted to holders of equitable interests is instructive.
In Steele v. Burrows, 118 Kan. 90, 233 Pac. 1027 (1925), the court gave the purchaser sixty days to pay all principal and interest due ($899.80) or forfeit the $1,025 paid on the $1,775 purchase price. The purchaser had been in default over three years and the payments to be forfeited were not found to exceed rental value. A longer extension of time was considered inequitable to the vendor.
The court, in Buskirk v. Hein, 138 Kan. 337, 26 P.2d 263 (1933), found the forfeiture of $1,104.22 paid on the $10,000 contract to purchase a quarter section of land was not inequitable since the fair rental value was $1,200 for the time the purchasers were in possession. The trial court gave them a brief redemption period held sufficient on appeal.
The purchasers of a greenhouse for $7,000 in 1928 in Vaughn v. Kauer, 147 Kan. 189, 75 P.2d 228 (1938), made payments of $3,000 and constructed improvements worth $1,500 after ceasing payments in 1931. A suit to cancel the contract was brought in 1936 and the purchasers were given six months to redeem the property, plus an additional two-month extension prior to foreclosure.
The court required the vendor to accept money tendered during an extension of time for payment in National Land Co. v. Perry, 23 Kan. 140 (1879). The purchaser was given the land which had increased in value as a direct result of his labor.
The common element of the relief granted was an allowance of additional time for the purchaser to tender full performance, thereby retaining the accumulated equity in the land and any appreciation in value. In the present case, this relief was not available, since the lot had been resold nearly a year before judicial intervention was sought. The trial court’s measure of damages gave plaintiffs the cash equivalent of their interest in the land.
The present case differs from the factual situations of Vaughn v. Kauer and National Land Co. v. Perry since the purchasers were not responsible for the appreciation in value of the lot through any of their own efforts. When the Mustards contracted to purchase their lot, the only improvement that had been made to the wooded pasture and crop land was a bulldozed road. Prior to cancellation of the contract, Sugar Valley had completed a development of paved roads, a $100,000 golf course, a $400,000 dam and a lake. The Mustards’ lot had become lakefront property as promised. The increased value due to Sugar Valley’s expenditures had, however, been fully anticipated as a part of the original bargain.
Another factor distinguishing the present case is that the Mustards had not yet built a vacation home on their lot so that there was no rental value to the lot. The only value at the time of cancellation of the contract was as a speculative investment. Considering the Mustards’ attempts to tender payments after cancellation and Sugar Valley’s concessions, we find that the relief giving the Mustards the benefit of their bargain is equitable.
Affirmed.
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Wahl, J.:
In keeping with the duties of a court in ruling on a motion for summary judgment, the “facts” as stated herein are gleaned from the record and are those “facts” viewed in the light most favorable to the plaintiff. They are not a recitation of facts found by the trier of facts from an evidentiary hearing, nor are they a statement of “facts” as this Court believes they should be found by the trier of facts at an evidentiary hearing.
On April 21, 1978, Silvino Gomez was employed as a supervisor at the Shawnee County fairgrounds. His immediate supervisor was the fairgrounds administrator, Robert Kanatzer. During the evening hours of April 21, 1978, Gomez and Kanatzer were engaged in preparing an area of the fairgrounds for a horse show. They learned of a water line break and, after determining the problem, proceeded to the administrator’s office to phone a piping contractor.
Appellee Roland Hug, a member of the Board of County Commissioners of Shawnee County, and a companion, Robert Corbett, were in Kanatzer’s office when Gomez and Kanatzer arrived. As they entered the office, Hug asked Kanatzer, “What is that fucking spic doing in the office?” Hug then repeated the question, again referring to Gomez as a “fucking spic.” Hug then ordered Gomez over to where he was, again referring to Gomez as a “fucking spic.” Gomez complied with Hug’s order to approach him and inquired of Hug as to what he meant by that name. Gomez testified in his deposition that the following exchange took place between him and Hug:
“A. . . . ‘Commissioner, you have repeatedly stated that remark throughout the day and in the past day or two. Can you give me your interpretation of a fucking spic?’ He said, ‘You are a fucking spic.’ I said, ‘What does it mean?’ He said, ‘A fucking Mexican greaser like you, that is all you are. You are nothing but a fucking Mexican greaser, nothing but a pile of shit.’ And he repeated it over and over and he raised his fist and he said, ‘Now what are you going to do about it?’ He got that close to me (indicating) and said, ‘What are you going to do about it?’ He kept hollering it out and hollering it out. He said, ‘Go ahead and do something about it, you fucking Mexican greaser. I have told you what you are. You are nothing but a fucking spic.’ And he repeated it over and he kept shaking his fists in front of my eyes and pounding on the desk and he would come up to me and say, ‘Are you going to do something, you coward, you greaser, you fucking spic? What are you going to do? Don’t stand there like a damn fool because that is all you are is a pile of shit.’
“Q. [by Mr. Beck] These are the exact words that you are using? Are these all exact quotes of Mr. Hug that you are giving us here right now?
“A. Yes. He repeated it over and over.
“Q. You stated he was pounding the desk with his fist?
“A. Pardon?
“Q. Did you say he was pounding the desk with his fist?
“A. He caught me offguard when he said that to me because I didn’t expect that to come from a Commissioner. In fact, I didn’t expect it to come from anyone. But we are speaking about Roland Hug. He kept threatening me. What was I going to do about it? He kept putting his fist in front of my face and pounding on that table, ‘What are you going to do about it?’ and repeating it over and over that I was nothing but a fucking spic. ‘Now, you said you know what the definition of a spic is. You are nothing but a fucking spic and a Mexican greaser,’ and he kept repeating it over and over, and he kept shaking his fist in front of me. I was froze because I was afraid of the man. For the first time in my life, I was terrified of one man calling me that. I was afraid for my job. I was afraid for my family.”
It is variously estimated that this tirade lasted from five to fifteen minutes. After the exchange between Gomez and Hug, Kanatzer escorted Gomez out of the office and took him home. Gomez appeared to be upset.
Gomez began having serious medical problems. He sought medical advice and treatment from Dr. D. J. Weber, his family physician, Dr. Vinod Patel, a neurologist, and Dr. James N. Nelson, a psychiatrist. Both Dr. Nelson and Dr. Patel stated in their reports that Gomez’ medical problems were related to the complained-of incident. Gomez was hospitalized from July 5, 1978, through July 18, 1978. He was unable to work due to his health-related problems and finally resigned his job with the county in November, 1979.
Appellees moved for summary judgment and the motion was sustained and judgment entered for the appellees. Gomez appealed.
K.S.A. 60-256(c) provides that a motion for summary judgment may be sustained only if the record before the court shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
In Farmers Ins. Co. v. Schiller, 226 Kan. 155, 158, 597 P.2d 238 (1979), the Supreme Court held:
“Summary judgment may be granted when, the record before the court shows conclusively there remains no genuine issue as to any material fact after the party against whom the motion was filed has failed to controvert a showing by affidavit, deposition, or otherwise that the moving party is entitled to judgment.”
In ruling on a motion for summary judgment, the district court must view the record in the light most favorable to the party against whom the motion is filed.
“In considering a motion for summary judgment a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. (Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 2, 553 P.2d 315 [1976].) A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. (Henrickson v. Drotts, 219 Kan. 435, 438, 548 P.2d 465 [1976].)” Bowen v. Westerhaus, 224 Kan. 42, 45, 578 P.2d 1102 (1978).
Another test for the trial court was stated in Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, Syl. ¶ 2, 575 P.2d 507 (1978):
“It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on the merits.”
If there is a reasonable doubt as to existence of a material fact, a motion for summary judgment will not lie. Welch v. Young, 225 Kan. 189, 589 P.2d 567 (1979); Secrist v. Turley, 196 Kan. 572, 575, 412 P.2d 976 (1966).
Did the district court err in determining, as a matter of law, that no assault occurred?
An assault is defined in PIK Civ. 2d 14.01 (1977) as follows:
“An assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
Words alone will not constitute an assault, as stated in Restatement (Second) of Torts § 31 (1965):
“Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person.”
Gomez’ testimony contained the following statements:
“And he repeated it over and over and he raised his fist and he said, ‘Now what are you going to do about it?’”
“He got that close to me (indicating) and said, ‘What are you going to do about it?”’
“And he repeated it over and he kept shaking his fists in front of my eyes and pounding on the desk.”
“He kept threatening me. What was I going to do about it? He kept putting his fist in front of my face and pounding on that table.”
“[H]e kept repeating it over and over, and he kept shaking his fist in front of me. I was froze because I was afraid of the man.”
Viewing the record in a light most favorable to Gomez, and giving him the benefit of all inferences that may be drawn from the record, this Court cannot say that reasonable persons could reach but one conclusion from this evidence. When the other acts and circumstances are considered — that Gomez and Hug had previously had problems which resulted in litigation; that Hug was Gomez’ employer; that Hug was obviously very angry; that the fist-shaking, pounding of the table and the shouting of invectives lasted from five to fifteen minutes — this Court cannot say, as a matter of law, that Gomez could not have been in immediate apprehension of bodily harm.
In viewing the totality of the situation, this Court believes that the trial court erred in granting summary judgment on the issue of whether Hug assaulted Gomez. It is a question tó be determined by a jury.
Did the district court err in determining, as a matter of law, that Gomez had no cause of action for intentional infliction of emotional distress by Hug?
The Kansas Supreme Court considered a comparable wrong in Whitsel v. Watts, 98 Kan. 508, 159 Pac. 401 (1916). There, the plaintiff suffered a miscarriage after being frightened when the defendant jumped from his buggy, ran towards the plaintiff in an angry, threatening manner, swearing, shaking his fist and saying, “You are fooling with the wrong person this time.” The Court, speaking through Chief Justice Johnston, held:
“Defendant insists that he inflicted no bodily injury upon her, that no physical injury was in fact threatened, that there was no assault upon her and that proof of a mere fright furnishes no basis for a recovery. It has long been the rule here that there can be no recovery for fright or mental anguish unless it results in or is accompanied by physical injury to the person. (Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341.) The plaintiff, however, is not asking a recovery for fright alone, but for the personal injuries directly resulting from fright caused by the willful tort of the defendant. It is argued that as the acts of the defendant did not amount to an assault she has no right to recover; but the defendant’s liability does not depend upon whether his wrongful onset constituted an assault. The plaintiff is seeking to enforce a civil liability for the consequences of the wrong and the general rule is that a wrongdoer is liable in damages for injuries which are the natural and reasonable consequences of his wrongful act, whatever name may be fittingly applied to the wrong.” 98 Kan. at 509.
In Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974), the plaintiff, a former employee of Associates, was delinquent on a car loan from Associates due to having lost her job when she developed multiple sclerosis. She received four phone calls from Associates about the account similar in content to calls she had had to make to delinquent debtors when she worked there. She referred them to her insurance carrier on the first call. On the second call Associates threatened to repossess the car, sell it and hold her responsible for any deficiency. On the third call plaintiff was told when the car would be repossessed, that it would ruin her credit rating, and would somehow involve her parents’ business. On the fourth call, plaintiff got emotional and told Associates to call her attorney. After receiving these calls, plaintiff suffered physical distress and had to go under a doctor’s care.
In Dawson, the Court adopted the rule from Restatement (Second) of Torts § 46 (1) (1965), which provides:
“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
The Court further held:
“[T]hat it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so, and where reasonable men may differ, the question is for the jury to determine.” 215 Kan. at 824.
In Dawson, the trial court excluded evidence of telephone calls by Associates to plaintiff’s parents about the delinquency of plaintiff’s loan as being irrelevant. The Supreme Court held the evidence should have been admitted, stating:
“Whether the excluded evidence would bolster the appellant’s case to show that Associates by extreme and outrageous conduct intentionally or recklessly caused severe emotional stress to the appellant, thereby establishing a prima facie case, cannot be readily ascertained from the record. Certainly the excluded test|piony was relevant to the issue being tried.” 215 Kan. at 823.
The Supreme Court, speaking through now Chief Justice Schroeder, concluded:
“Certainly creditors must be permitted to pursue reasonable methods of collecting debts, and debtors are protected only from extreme and outrageous conduct. Nonetheless, methods of collecting debts which might be reasonable in some circumstances, might also be regarded as outrageous in others where it is known that the debtor is particularly susceptible to emotional distress due to a disease such as multiple sclerosis. Here the appellant made claim for payments on an insurance policy which Associates had sold her.
“While only the substance of the evidence excluded by the trial court was proffered, the proffer discloses Associates said to the appellant’s mother ‘they were going to ruin [appellant’s] credit’; and that when the calls from Associates became more threatening the appellant’s mother talked to the appellant about them. When the details of the evidence excluded are presented in open court, the appellant’s evidence may be sufficiently strengthened to make a submissible case for the jury.” 215 Kan. at 825.
Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975), was an action for invasion of privacy, but the Court also considered the matter of outrageous conduct. The Court, at page 210, quoted comment d from § 46 of Restatement (Second) of Torts:
“ ‘The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim “outrageous!”
“ ‘The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . .’ (p. 73.)”
No abusive language was employed. The mere fact of frequent phone calls from Dotson to McLaughlin to state that SBA loans would be foreclosed if McLaughlin did not cooperate was not sufficiently extreme or outrageous to give rise to liability.
Bradshaw v. Swagerty, 1 Kan. App. 2d 213, 563 P.2d 511 (1977), was an action for slander and outrage. The epithets in question were “nigger,” “bastard” and possibly “knot-headed boy.” Plaintiff’s legitimacy was conceded. The trial court granted summary judgment to the defendant on both counts. The appellate court agreed that these words were “ ‘mere insults’ of the kind which must be tolerated in our rough-edged society.” 1 Kan. App. 2d at 216.
In Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979), Mrs. Kukal was seeking damages for emotional distress sustained by her when she witnessed a fence line dispute during which Wiehe assaulted her husband with a pitchfork but never touched him. Wiehe waved the fork over his head toward Kukal in a threatening manner, raved and shouted at Kukal, calling him names and claiming Kukal was stealing his land. The Supreme Court ruled that Wiehe’s conduct was not extreme and outrageous and that Wiehe did not intentionally or recklessly cause Mrs. Kukal’s severe emotional distress.
In the instant case the appellees rely heavily on Bradshaw v. Swagerty, 1 Kan. App. 2d 213, and Dotson v. McLaughlin, 216 Kan. 201. The reliance is misplaced. The cases are distinguishable. In Bradshaw, the plaintiff was in an attorney’s office con cerning a collection letter. During the interview he was called a “nigger,” a “bastard” and possibly a “knot-headed boy.” However tasteless such outbursts are, they do not sink to the abysmal degradation of the words used by Hug. They did not wield a similar emotional impact upon their target.
In Dotson, the facts are so dissimilar that it is of no help. McLaughlin was simply complaining of the frequency of Dotson’s calls while trying to collect a note.
The relative positions of Gomez and Hug are important here. Hug was the employer. Gomez was the employee. Hug spoke from the position of a county commissioner. These remarks had been made to Gomez by Hug over a period of several days. The tirade unleashed upon Gomez on April 21,1978, was terrifying to him. He was afraid of Hug, afraid for his job, afraid for his family. Each party argues a different meaning from these statements of Gomez’ fear. It is an issue for the trier of fact.
Contreras v. Croton Zellerbach, 88 Wash. 2d 735, 565 P.2d 1173 (1977), concerned the ¿negations of a Mexican-American that he had been the object of racial insults, humiliation and embarrassment during the course of his employment. The Washington Court found that liability for infliction of mental distress could attach under the facts alleged. The Court held at p. 741:
“When one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior. Restatement (Second) of Torts § 46 comment e. The relationship between the parties is a significant factor in determining whether liability should be imposed.”
We can agree with the comment from Restatement of Torts quoted above. We cannot agree that it was for the trial court to rule that what was said to Gomez was a mere insult, a petty oppression or other triviality. This was a matter for the jury. Certainly there is no occasion for the law to intervene in every case where someone’s feelings are hurt. Certainly the rough edges of our society still need smoothing down and there must still be freedom to blow off harmless steam. But this vituperation was well beyond the bounds of freedom to blow off harmless steam. It is not a burden of American citizenship in the State of Kansas that such vitriolic bullying as was turned by Hug against Gomez, and its emotional and physical consequences, must be accepted without possibility of redress and accepted as often as it amuses the speaker to utter it. Kansas courts are not so impotent. At the very least the victim of such an attack has the right to have his grievance heard by a jury of average members of the community to know whether they would exclaim, “Outrageous!”
It cannot be said that reasonable persons could reach but one conclusion from the evidence in this case. The trial court erred in sustaining the motion for summary judgment as to the allegation of intentional infliction of emotional distress by the defendant Hug.
Did the district court err in determining as a matter of law that Gomez had no cause of action for defamation?
Prosser, Law of Torts (4th ed. 1971) at 737, states:
“In either form, defamation is an invasion of the interest in reputation and good name. This is a ‘relational’ interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. Consequently defamation requires that something be communicated to a third person that may affect that opinion. . . . Defamation is not concerned with the plaintiff’s own humiliation, wrath or sorrow, except as an element of ‘parasitic’ damages. . . .”
In the same work by Prosser, at page 739, it is written that defamation is an act which “tends to injure ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinion against him.”
Defamation includes both libel and slander. In Henderson v. Ripperger, 3 Kan. App. 2d 303, 306, 594 P.2d 251 (1979), the Court held:
“There are two types of slander, slander per se and slander per quod. In that slander is oral libel, what is said in Karrigan v. Valentine, 184 Kan. 783, 787, 339 P.2d 52 (1959), is pertinent:
“ ‘Words libelous per se are words which are defamatory in themselves and which intrinsically, by their very use, without innuendo and the aid of extrinsic proof, import injury and damage to the person concerning whom they were written. They are words from which, by the consent of mankind generally, damage follows as a natural consequence and from which malice is implied and damage is conclusively presumed to result. Where libel per se is claimed the question presented is whether the words on their face, without explanation or extrinsic proof, would necessarily, or as a natural and immediate consequence cause injury and whether a newspaper article is libelous per se is a question of law for the court to determine. (Jerald v. Houston, 124 Kan. 657, 261 Pac. 851; Bennett v. Seimiller, 175 Kan. 764, 267 P.2d 926; Koerner v. Lawler, 180 Kan. 318, 304 P.2d 926; 33 Am. Jur., Libel and Slander, § 5, p. 39, et seq., and 53 C.J.S., Libel and Slander, § 8, p. 41, et seq.)
“ ‘Words libelous per quod, on the other hand, are words ordinarily not defamatory but which become actionable only when special damages are shown, that is, they are words the injurious character of which appears only in consequence of extrinsic facts. Thus, words not defamatory per se, may become actionable per quod, depending upon the facts and circumstances of the particular case, and this gives rise to the rule that in order to recover for a libel per quod special damage and injury must be alleged and proved. (See authorities above cited.)’ ”
In Kraisinger v. Liggett, 3 Kan. App. 2d 235, 236-237, 592 P.2d 477, rev. denied 226 Kan. 792 (1979), the Court ruled:
“The law in Kansas is well established that the determination of whether a statement is libelous or slanderous per se is a question of law for the trial court to determine. Local Union No. 795 v. Kansans for the Right to Work, 189 Kan. 115, 368 P.2d 308 (1962). In order to receive such treatment, a defamatory statement must fall into one of four categories, namely: (1) Imputation of a crime; (2) imputation of a loathsome disease (usually venereal); (3) imputation of a person’s unfitness for his trade or profession; or (4) imputation that a woman is unchaste.”
Hug’s words, however objectionable, do not constitute slander per se. To recover for slander per quod, Gomez must allege and prove special damages.
“The special damage [which constitutes the basis of recovery when the defamation is actionable per quod] must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and the conduct must be directly caused by the publication of the slander.” Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952).
Gomez’ alleged injuries are personal injuries resulting from Hug’s actions. The record reveals no evidence of injury to Gomez’ reputation or good name — the “relational” interest involved in the tort of defamation. There is no evidence of damages to Gomez from third persons resulting from the alleged defamation. Without such evidence there can be no recovery based upon defamation and therefore summary judgment for defendants was proper on this issue.
Did the district court err in granting judgment for the defendants based upon Gomez’ claim under 42 U.S.C. § 1983?
Gomez alleges that he “was denied his civil rights in violation of 42 U.S.C. § 1983 by the, Defendant acting under color of law.” The statute, 42 U.S.C. § 1983, provides:
“Civil action for deprivation of rights.
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.”
The purpose of this statute was to provide redress for the deprivation of federally protected civil rights when such was done under color of law. Kerr v. United States Dist. Ct. for North. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), aff'd 426 U.S. 394 (1976).
Verbal harassment or abuse is insufficient to support a § 1983 action, as in defamation. Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979); Paul v. Davis, 424 U.S. 693, 47 L.Ed.2d 405, 96 S.Ct. 1155 (1976). This is true even where the defamation is malicious and committed by a state official. Taylor v. Nichols, 409 F. Supp. 927 (D. Kan. 1976), aff'd 558 F.2d 561 (10th Cir. 1977).
Gomez also claims that Hug’s actions were intended to and did coerce Gomez into leaving his job and that such actions constitute an unfair labor practice under 42 U.S.C. § 2000e and that such actions have deprived Gomez of a property right without due process. It is apparent from the record that this claim was not presented to the trial court. It is well settled in this state that a point not raised before the trial court cannot be raised for the first time on appeal. Fleming v. Etherington, 227 Kan. 795, 610 P.2d 592 (1980).
Regarding Gomez’ claim that he was deprived of a property right, there is no evidence in the record that plaintiff had a reasonable expectation of continued employment sufficient to give rise to a property right. Furthermore, there is no evidence in the record that Gomez was coerced into leaving his job by this occurrence. The record indicates that Gomez left his job some nineteen months after the occurrence.
The trial court did not err in granting summary judgment on this allegation.
Did the district court err in granting summary judgment for the Board of County Commissioners of Shawnee County ?
The district court held that the Board of County Commissioners was not liable for the acts of Hug under the theory of respondeat superior. The key element for the application of respondeat superior is the principal’s or master’s right to direct and control the activities of the agent or servant. Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975), modified 219 Kan. 2, 547 P.2d 1015 (1976).
Pursuant to K.S.A. 19-202, county commissioners are elected officials who hold office for a term of four years. Their powers are enumerated by K.S.A. 19-212 and they have only such powers as are conferred upon them by statute. Cunningham v. Blythe, 155 Kan. 689, 127 P.2d 489 (1942).
Whether a municipal corporation may be held liable for the wrongful acts of public officers depends on whether the officer occupies the status of agent or servant of the municipality. The criteria for determining the status of an elected officer is set out in 57 Am. Jur. 2d, Municipal, Etc., Tort Liability § 85, p. 95:
“If, on the other hand, they are elected or appointed by the corporation in obedience to the statute, to perform a public service not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the legislature in the distribution of powers of the government; if they are independent of the corporation as to the tenure of their office and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation, for whose acts or negligence it is impliedly liable, but as public or state officers with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable.”
Because the duties of a county commissioner in this state are fixed by statute, the county, acting through its commissioners, cannot control or direct the actions of the individual commissioners. They are neither agents nor servants of each other. They act independently to perform the duties conferred upon them by law. Absent the relationship of principal and agent, the doctrine of respondeat superior cannot apply.
The Kansas Supreme Court has recognized this general rule in a case involving the failure of city officials to enforce a city ordinance. In Everly v. City of Gas, 95 Kan. 305, 307, 147 Pac. 1134 (1915), the Court held:
“Although elected or appointed by the city, paid by the city, and subject to discharge by the city, its officers are public officials and not agents of the corporation for whose neglect or misconduct the city can be held responsible in a civil action according to the doctrine of respondeat superior.”
The acts of the defendant, Hug, were personal to him. He was exceeding all statutory authority granted to him. His acts were not the acts of Shawnee County.
The trial court properly entered judgment for the defendant Board of County Commissioners.
The judgment of the trial court is affirmed in part and reversed in part and remanded for further proceedings in conformity herewith as to the defendant Roland Hug.
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Miller, J.:
This appeal involves the liability of the seller of a motor vehicle for damages where the buyer of the vehicle was involved in an accident and the assignment of the title certificate had not been notarized. The facts are not disputed.
In December of 1979, defendants Geraldine and Hallie Brown were the owners of a 1964 Chevrolet pickup truck. They had not driven it for about six months because of a bad clutch, and had permitted the insurance on it to lapse. They were contacted by defendant Anthony J. Miller, Jr., about selling the truck to him. After Miller looked over the truck and was advised of its condition, the Browns offered to sell it to him for $400.
On December 23, 1979, Miller came to the house again, with his mother, for the purpose of purchasing the truck. He paid the Browns $100 and agreed to pay $50 every payday until the purchase price of $400 was paid. The Browns had Miller sign a statement that he was purchasing the truck “as is,” and they executed the assignment of title and gave it to him. The assign ment was not notarized at the time because the transaction occurred on a Sunday and there was no notary available. Miller’s mother promised, however, that she would have the assignment notarized the next day and obtain a release of the lien noted on the title. There is no evidence to indicate that she fulfilled those promises. The license tags, which were due to expire in seven or eight days, were inadvertently left on the truck as Miller drove it away.
On January 26, 1980, defendant Miller ran a stop sign and collided with plaintiffs’ car. Subsequently, the State notified the Browns that they were the registered owners of the truck at the time of the accident, and Mr. Brown’s driver’s license was suspended for permitting the operation of an uninsured vehicle involved in an accident. Miller then signed a statement saying that he owned the truck at the time of the accident and had owned it since December 23, 1979. Brown submitted this statement to the State and his driver’s license was reinstated.
Subsequently, the plaintiffs sued Miller and the Browns for damages as a result of the accident that occurred on January 26, 1980. The Browns were sued on the theories that the truck was legally owned by them at the time of the accident and had been negligently entrusted to Miller, or that Miller was the agent of the Browns at the time. Miller defaulted.
Prior to trial, the district court sustained the Browns’ motion for partial summary judgment, thereby ruling out any agency relationships between the Browns and Miller. The court also ruled, however, that the sale was void because there was no valid transfer of title to the pickup truck to Miller. The case was set for trial on the issues of Miller’s negligence and whether or not the Browns negligently entrusted the vehicle to Miller.
The matter was tried to the court on March 13, 1981. After finding that Anthony Miller was negligent in the operation of the truck, the trial court held that the Browns had negligently entrusted the truck to Miller by failing to properly transfer ownership to him and by leaving their license plate on the vehicle when they knew or should have known that Miller had no liability insurance or means of obtaining liability insurance. Judgment was entered against the Browns in the sum of $902 and the Browns have appealed.
The trial court’s ruling that the sale was void was based on the Browns’ failure to have the assignment of title notarized. The statute in effect at the time of the transaction between Miller and the Browns was K.S.A. 1979 Supp. 8-135. Section (c) provides as follows:
“(2) The certificate of title shall contain upon the reverse side a form for assignment of title to be executed by the owner before a notary public or some other officer authorized to administer an oath. . . .
“(7) It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof or at a time agreed upon by the parties, not to exceed fifteen (15) days after the time of delivery, there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle required to be registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void, unless the parties shall agree that the certificate of title with an assignment thereof shall pass between them at a time other than the time of delivery, but within fifteen (15) days thereof.”
This statute was considered in Elrod v. Preferred Risk Mutual Ins. Co., 201 Kan. 254, 440 P.2d 544 (1968). Although the statute involved was a prior version, the provisions here in question are the same. There the court stated at page 256:
“We have examined the statute and the cases cited by defendant. We have reviewed other cases on this question, including Maryland, Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P.2d 931 and Wilcox Trailer Sales, Inc. v. Miller, 200 Kan. 315, 436 P.2d 860.
“In each case where it has been held no title passed to the purchaser the vehicle was delivered without assignment of the certificate of title and the sale was held fraudulent and void. . . .
“The act of omission made unlawful by the statute and which renders the sale fraudulent and void is the delivery of the vehicle to the purchaser without assignment of the certificate of title.”
A case similar to the one here is Farmers Ins. Co. v. Schiller, 226 Kan. 155, 597 P.2d 238 (1979). There the buyer paid $100 and agreed to pay the balance of $50 the following week. The seller executed the assignment of title but, because it was after 9:00 p.m. and there was no notary available, the assignment was not notarized. The seller gave the buyer the assigned title and possession of the vehicle, and loaned a battery and license tags so the buyer could drive the vehicle home. The buyer agreed to have the assignment notarized and to return the battery and tags the next day but did not do so. Several days later, the car was involved in an accident while being driven by a permittee of the buyer.
In that case, as here, it was contended that the sale was void because the title was not notarized. In discussing the issue, the court stated:
“The first legal issue confronting this court is whether there was a completed sale of the pickup from Hester to Bayless which would relieve Hester’s insurance company from exposure under the policy. The Court of Appeals and the trial court determined the sale had not been completed, and that Hester’s insurance company was not relieved from exposure under the policy. We agree. However, we cannot agree with the Court of Appeals’ holding that the lack of a notarization on the title rendered the sale fraudulent and void. The statute then in effect, K.S.A. 1974 Supp. 8-135(c)(2), did require the assignment of title to be executed by the owner before a notary public. However, K.S.A. 1974 Supp. 8-135(c)(6) further provides:
“ ‘It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof or at a time agreed upon by the parties, not to exceed fifteen (15) days after the time of delivery, there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle required to be registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void, unless the parties shall agree that the certificate of title with an assignment thereof shall pass between them at a time other than the time of delivery, but within fifteen (15) days thereof. . . .’
“According to the uncontroverted facts Hester complied with all provisions of the statute except for the notarization of his signature, and when he delivered the title it was agreed the purchaser would have the signature notarized that very evening or return the certificate in the morning so Hester could get it notarized. Under these circumstances the sale was not fraudulent and void. The purpose of K.S.A. 8-135 is to require the issuance of a certificate of title for every vehicle required to be registered under the act, and to provide a means by which one may readily ascertain who is the owner of a motor vehicle, thus protecting the public from the evils arising from the unregulated use, transfer, and sale of such a vehicle. Melton v. Prickett, 203 Kan. 501, 456 P.2d 34 (1969).
“The failure to notarize an assignment of title does not necessarily render a contemplated sale fraudulent and void. . . .
“In the present case it was agreed between the parties that certain things remained to be done to complete the sale. The title was to be notarized. Bayless was to return the license tag and the battery which were temporarily placed on or in the pickup. There appears no evidence except that which indicates the parties did intend to fully comply with the statute on the following day when the sale would be completed. Until that time the sale was not complete, title did not pass, and plaintiff’s exposure under the Hester policy continued.” Farmers Ins. Co. v. Schiller, 226 Kan. at 158-160.
In the case before us, there was no agreement between the parties that certain things remained to be done to complete the sale. The Browns complied with all the provisions of the statute except for notarization of the assignment of title, and when the title certificate was delivered, it was agreed that the purchaser would have the title notarized. The parties clearly intended the sale to be completed at the time the vehicle and the title were delivered to Miller, and the trial court erred in holding that the sale was void.
Although the principle of negligent entrustment is recognized in this state, it follows that since the sale was valid and the Browns no longer owned the truck, they cannot be held to have negligently entrusted the vehicle to Miller.
Under the theory of negligent entrustment, liability is based on knowingly entrusting an automobile to a known incompetent or careless driver. McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982); Fogo, Administratrix, v. Steele, 180 Kan. 326, 304 P.2d 451 (1956); Priestly v. Skourup, 142 Kan. 127, 45 P.2d 852 (1935).
A review of the record in this case discloses that there is no evidence to indicate that the Browns knew or should have known that Miller was an incompetent or careless driver. Further, there is no evidence in the record to support a finding that the Browns knew or should have known that Miller had no liability insurance and no means to obtain such insurance. They only saw him on the two short occasions he came to their house. It would be sheer speculation to infer from the fact that he only paid $100 down on the purchase price and agreed to pay the balance in installments that Miller did not intend to obtain liability insurance and had no means to do so. This is particularly true since Miller told them that he was employed, that he needed the truck to drive to work, and that he would pay future installments on payday.
The judgment of the trial court is reversed as to defendants Hallie and Geraldine Brown.
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Rees, J.:
This is an appeal from a district court order vacating and setting aside the dismissal by the Kansas Corporation Commission (KCC) of a complaint filed by Peoples Natural Gas Division of Northern Natural Gas Company (Peoples) challenging performance of a retail gas supply contract between Kansas Power & Light Company (KP&L) and MBPXL Corporation (MBPXL).
Peoples and KP&L are regulated natural gas public utilities. MBPXL has built and is operating a beef packing plant in Ford County near Dodge City. On August 23, 1978, while the plant was under construction, KP&L and MBPXL entered into a contract (the contract) providing for the sale by KP&L to MBPXL of up to 2,000 mcf of natural gas per day to be delivered at the connection of a KP&L transmission line and a 13.5 mile pipeline to be constructed, owned and operated by MBPXL. The contract recites the parties’ understanding that gas deliveries would be initiated on or about October 1, 1979. The gas to be delivered under the contract is primarily for operation of boilers at the MBPXL plant. The physical point of delivery of the gas to MBPXL is in KP&L’s certificated territory. The physical point of consumption, or use, of the gas is in Peoples’ certificated territory.
KP&L filed the contract and an appropriate related price schedule with the KCC on August 24,1978, for approval. Peoples had actual notice of the filing. KCC approval was granted September 8, 1978, without a hearing. No hearing was asked for by Peoples or any other party. (See K.A.R. 82-1-232 [b].) More than a year later, on September 20, 1979, Peoples filed with the KCC a complaint having as its stated basis KP&L’s intended transaction of the business of a natural gas public utility in Peoples’ certificated territory.
By its complaint, Peoples requested the KCC to “order” that (1) sale by KP&L of natural gas as provided under the contract constitutes an “unauthorized invasion of Peoples’ certificated area” and (2) “the contract and . . . sale thereunder are in violation of the laws of this state and the Rules of [the KCC], and therefore void.” Following a full hearing on the complaint, the KCC, by written order entered January 17, 1980, held the complaint was not timely filed and denied the relief requested. Peoples’ application for rehearing was denied by the KCC. Peoples filed and successfully prosecuted an application for judicial review in the Ford County District Court. The KCC and KP&L have appealed from the decision of that court.
Of particular importance is recognition that the proceeding before the district court and now before us on appeal is for judicial review of the January 17,1980, order of the KCC denying the relief requested by Peoples and dismissing its complaint. The proceeding is not for judicial review of the September 8, 1978, KCC approval of the contract, despite the attacks upon that approval made by Peoples in its complaint, presentation of the complaint to the KCC, presentation to the district court, and presentation to us.
It is appropriate to restate the following from Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-381, 595 P.2d 735, rev. denied 226 Kan. 792 (1979):
“K.S.A. 1978 Supp. 66-118d limits judicial review of an order by the commission to determining whether the order is ‘lawful’ or ‘reasonable.’ Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976). A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-7, 565 P.2d 597 (1977). An order is ‘lawful’ if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered ‘reasonable’ if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2.
“The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the'courts authority to substitute their judgment for that of the commission. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48-9, 386 P.2d 515 (1963). Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).”
In essence, Peoples complains and has complained that the approval of the contract was unlawful, KP&L’s intended transaction of natural gas public utility business in Peoples’ certificated area is unlawful, and if lawful, KCC permission of the intended transaction of business is unreasonable. Premises of these contentions are that sale and delivery of natural gas by KP&L to MBPXL as called for by the contract constitutes trans action of natural gas public utility business by KP&L outside KP&L’s certificated territory and within Peoples’ certificated territory, and the KCC approval of the contract constituted de facto “dual certification” of KP&L to transact natural gas public utility business at the MBPXL plant. It is argued the purported de facto certification was unlawful because it was effected without a hearing. Differing but little from the foregoing, it also has been and is argued that if KP&L is not treated as certificated to transact business at the MBPXL plant, (1) its sale of gas under the contract is an unlawful transaction of natural gas public utility business outside its certificated territory, and (2) it is unreasonable to permit KP&L to sell to a “customer” of Peoples (a “customer” because located and using the gas in Peoples’ certificated territory) when Peoples presently has the facilities and capability to serve MBPXL.
Peoples, noting that K.A.R. 82-1-220 expresses no time requirement for the filing of a complaint, contended in the trial court and contends before us that dismissal of its complaint on the ground it was not timely filed, was not within the statutory authority of the KCC. Other than this argument, there is and has been no contention the January 17, 1980, KCC order was unlawful, that is, the order was not within the statutory authority of the KCC or the prescribed statutory and procedural rules were not followed in making the order. See Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977); Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d at 380. Thus, all other bases of the appeal from the January 17, 1980, KCC order must be in the nature of claim of unreasonableness. See Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-397, 565 P.2d 597 (1977); Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976); Midwest Gas Users Ass'n v. Kansas Corporation Commission, 3 Kan. App. 2d at 380.
Because of its critical role in our disposition of this appeal, we will set forth Peoples’ application to the KCC for rehearing, omitting only statements of formality. It reads:
“3. Applicant requests a rehearing for the purpose of oral argument upon the facts and law heretofore submitted to this Commission.
“4. The order entered herein does not contain a concise and specific statement of the relevant law and basic facts to support the decision of this Commission to deny Complainant the relief requested.
“5. The decision and order of this Commission was entered without consideration of the following evidence:
“(The following testimony has been paraphrased.)
“Exhibit # 1 Illustration of Peoples Service facilities with reference to MBPXL plant in Dodge City area.
“Heig, Tr. 39-42 Witness testimony explaining Exhibit #1;
“Heig, Tr. 41 Peoples has more than adequate capacity and supply to serve the full needs of MBPXL plant;
“Heig, Tr. 42 and 50 Peoples could install necessary metering equipment to facilitate delivery to MBPXL without substantial expenditures;
“Heig, Tr. 43 Peoples presently has gas supply lines connected to plant;
“Heig, Tr. 44 Peoples’ price to MBPXL per mcf is $1.47;
“Heig, Tr. 46 KP&L’s price to MBPXL per mcf is $1.89;
“Walrafen, Tr. 77 KP&L’s price to MBPXL per mcf is $1.86;
“Heig, Tr. 45 and 65 Mr. Les Williams of MBPXL said MBPXL could save approximately $260,000 per year if gas is purchased from Peoples rather than KP&L;
“Heig, Tr. 46-47 MBPXL would save between $240,000 and $360,000 per year if gas is purchased from Peoples rather than KP&L;
“Heig, Tr. 44 Peoples expects zero curtailments in next twelve months;
“Walrafen, Tr. 77 The KP&L-MBPXL contract contains a curtailment clause; no customer of KP&L has firm volume guarantees;
“Walrafen, Tr. 78 KP&L has no Certificate of Authority granted by KCC covering territory in which MBPXL plant is located near Dodge City;
“Rosenberg, Tr. 8 KP&L agreed to provide service for MBPXL which is located outside of KP&L’s service area;
“Heig, Tr. 48 If Peoples were allowed to make this sale to MBPXL, the revenue generated would have the effect of reducing revenue deficiencies, which would result in a reduction of rates to other Dodge City customers. Residential customers of Peoples in the Dodge City area would benefit from said sale by receiving a reduction in their rates;
“Heig, Tr. 49 KP&L has no residential or industrial customers, other than MBPXL, in the Dodge City area;
“Heig, Tr. 48-49 Residential customers in the Dodge City area will not benefit if KP&L is permitted to sell gas to MBPXL;
“Williams, Tr. 98 MBPXL could have certainly made money on a sale of the pipe;
“Williams, Tr. 98-99 Peoples offered to purchase the pipe.”
Examination of the transcript of the hearing before the KCC on Peoples’ complaint discloses the nineteen references in the ap plication for rehearing were selectively chosen and, in some instances, the objectivity of the paraphrasing is questionable when account is taken of the context in which the identified testimonial statements were made. However, this situation is not material since the paraphrasing may be taken at face value in arriving at our decision. Neither is it necessary to decide if paragraph 3 of the application for rehearing satisfies the requirement of K.A.R. 82-1-235 (c) and, if not, the consequence thereof.
K.S.A. 66-118b in part provides:
“No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided. Such application shall set forth specifically the ground or grounds on which the applicant considers such order or decision to be unlawful or unreasonable. No party shall, in any court, urge or rely upon any ground not set forth in said application.”
When Peoples’ application for rehearing is examined in the light of K.S.A. 66-118b, there arises the question whether it preserved for judicial review the grounds and propositions raised before the district court and now presented to us in defense of this appeal. We find it did not.
Granite City v. Commerce Com., 407 Ill. 245, 95 N.E.2d 371 (1950), was decided under a statute providing:
“[A]ny party to the . . . proceeding may apply for a rehearing in respect to any matter determined in said . . . proceeding and specified in the application for rehearing. ... No person or corporation in any appeal shall urge or rely upon any grounds not set forth in such application for a rehearing before the Commission.” 111. Ann. Stat. Chap. 111%, par. 71.
We read the Illinois statute to have expressed the same requirements and limitations as those found in K.S.A. 66-118b. In Granite City, it was said and held:
“[T]he appellee and the Illinois Commerce Commission . . . argue that [the] point was not raised in the petition for rehearing and the appellants are, therefore, barred from raising it on appeal by section 67 of the Public Utilities Act, (111. Rev. State. 1949, chap. 111%, par. 71,) ....
The appellants reply to this argument by stating that the only issue before the court is the reasonableness and lawfulness of the commission’s order. They cite Gold v. Commerce Com., 383 Ill. 11, for the proposition that, under section 67 of the Public Utilities Act, which states that nothing should be urged or relied upon in the upper court which was not set forth in the application for a rehearing, it is necessary to only make the allegation that the order of the commission is unreasonable and unlawful. They then go on to state that they made the claim in the petition for rehearing that the order of the commission was unreasonable and unlawful and, therefore, are not in the position of not having raised the question in the petition for rehearing.
“To adopt the contention of appellants results in a broad interpretation of the statute and the requirements as set forth in our cases. Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Railway Company, 382 Ill. 55, contains the ruling that appeals from orders of the commission are purely statutory and to become legally effective they must be prosecuted in accordance with the requirements of the statute, and that the statute requires that the points argued on appeal be raised in the petition for rehearing.
“We cannot feel that justice or the intent of the statute would be served by the adoption of the construction sought by the appellants here. The purpose of requiring the matters to be raised in the petition for rehearing is to inform the commission and the opposing parties wherein mistakes of law and fact were made in the order. A general allegation could not inform the commission or the opposing party of one mistake of law as opposed to another. The language in the act (111. Rev. Stat. 1949, chap. 111%, par. 71,) is sufficiently specific to require in unequivocal terms the propositions relied upon by the person petitioning for the rehearing. Under these circumstances, we feel that a proper construction of the statute requires the allegations in the petition for rehearing be sufficiently specific to apprise the commission and opposing parties of the actual points relied on. In this case the petition should have contained a direct allegation that the second order was contrary to the first order, was based upon the same facts, and therefore, was contrary to law. Such was not the case here.” 407 Ill. at 248-250.
State v. Arizona Corporation Commission, 94 Ariz. 107, 382 P.2d 222 (1963), was decided under the following statutory provisions:
“A. . . . any party to the . . . proceeding . . . may apply for a rehearing of any matter determined in the . . . proceeding and specified in the application for rehearing. . . .
“C. The application [for rehearing] shall set forth specifically the grounds on which it is based, and no person . . . shall in any court urge or rely on any ground not set forth in the application.” Ariz. Rev. Stat. Ann. § 40-253.
Again the statutory requirements and limitations are those expressed by K.S.A. 66-118b. The Arizona Supreme Court said and held:
“The State, in its complaint filed in the superior court in this action, urges several reasons for holding the action of the commission unlawful, which were not included in haec verba in the petition for rehearing before the commission. The . . . question presented is whether the State is precluded from urging these reasons by [the statute],
“It has been held that provisions similar in statement and purpose to that quoted are not satisfied by general averments that the action complained of was unreasonable and unlawful, Granite City v. Illinois Commerce Commission, 407 Ill. 245, 95 N.E.2d 371 (1950); cf. Hale v. Stimson, 198 Mo. 134, 95 S.W. 885 (1906).
“We approve the language of the Illinois court in the Granite City case, supra;
“ 0 ° The purpose of requiring the matters to be raised in the petition for rehearing is to inform the commission and the opposing parties wherein mistakes of law and fact were made in the order. A general allegation could not inform the commission or the opposing party of one mistake of law as opposed to another. The language in the act * * * is sufficiently specific to require in unequivocal terms the propositions relied upon by the person petitioning for the rehearing. Under these circumstances, we feel that a proper construction of the statute requires the allegations in the petition for rehearing be sufficiently specific to appraise [sic] the commission and opposing parties of the actual points relied on. s * e’ 407 Ill. at 250, 94 N.E.2d at 374.
“However, there is no requirement that the grounds be expressed in the pleadings in the superior court in precisely the same language as was used in the petition for rehearing. The requirement is satisfied if the legal or factual point now relied upon was raised in the petition for rehearing.” 94 Ariz. at 111-112.
We neither find nor are we referred to Kansas case authority substantially addressing the question posed and resolved in Granite City v. Commerce Com., 407 Ill. 245, and State v. Arizona Corporation Commission, 94 Ariz. 107. The reasoning in those cases is persuasive. Peoples refers us to no contrary foreign authority; it merely attempts to distinguish the cases on facts not affecting the conclusions reached in those decisions.
We conclude K.S.A. 66-118b requires that there be set forth in an application for rehearing the specific grounds upon which the applicant considers the order to be unlawful or unreasonable. The allegation of grounds must be sufficiently specific and direct to apprise the commission and opposing parties of the actual points relied on. Any ground not set forth in the application for rehearing cannot be relied upon in judicial review proceedings. It is not necessary that in an application for judicial review the grounds upon which the applicant considers the order to be unlawful or unreasonable be stated in precisely the same language used in the application for rehearing; however, any ground not specifically and directly alleged in the application for rehearing may not be raised in an application for judicial review. A general or mere allegation in the application for rehearing of unlawfulness or unreasonableness is insufficient to raise an issue for judicial review.
What grounds did Peoples raise and preserve for judicial re view by its application for rehearing? Only those found specifically set forth in paragraphs 4 and 5 of the application.
Peoples argues to us “paragraph 4 of the application for rehearing . . . goes to the entire order — each finding of fact, and each statement of law. . . . Surely it was not necessary, in the application for rehearing, to state after each paragraph in the order that ‘this was not a basic fact supported by the evidence’ or that ‘this statement of law was not a statement of relevant law supported by facts in the case.’ The commission was fully aware of the contents of its order.” Peoples also asserts paragraph 4 correlates with K.A.R. 82-1-232 (a) (3) which requires a formal order of the KCC be in writing and “contain a concise and specific statement of the relevant law and basic facts which persuade the commission in arriving at its decision.” Peoples’ arguments miss the mark.
Nowhere in these judicial review proceedings do we find it argued that the basic facts recited in the January 17, 1980, order are not supported by the evidence or that the recited basic facts do not support the decision. Again, the thrust of Peoples’ contentions has been that the KCC erred in its January 17,1980, order by failing to find the September 8,1978, order unlawful, present sale of natural gas under the contract unlawful, and permitting sale under the contract unreasonable. To read paragraph 4 to generally allege unlawfulness or unreasonableness as contended by Peoples strains acceptable interpretation of the paragraph 4 language. We find it beyond acceptable interpretation of that language to construe it as an allegation sufficiently specific to apprise the KCC and opposing parties of the actual points relied on, that is, to inform them of one mistake of law or fact as opposed to another. Furthermore, it requires unreasonable interpretation to read paragraph 4 to say anything more than that there was not compliance with K.A.R. 82-1-232 (a) (3). That is not an issue or ground that has been raised in the proceedings for judicial review.
In regard to paragraph 5 of the application for rehearing, Peoples asserts K.A.R. 82-1-235 (a) establishes failure to consider evidence, cited to the record in the application for rehearing, as a ground for rehearing; paragraph 5 of Peoples’ application for rehearing complies with K.A.R. 82-1-235 (a); and, therefore, the application for rehearing raised the issue that the KCC erroneously failed to consider the identified evidence.
The requirement that issues subject to judicial review must be found in specific allegation of grounds for rehearing set forth in the application for rehearing is statutorily mandated. K.S.A. 66-118b. Although administrative regulations and rules may be promulgated to implement statutes and the exercise of delegated authority, and duly adopted administrative regulations and rules have the force of law, administrative regulations and rules do not supplant statutory law nor do they preempt judicial statutory interpretation. K.A.R. 82-1-235 (a) establishes procedure before the KCC. Its apparent purpose is to facilitate KCC consideration of applications for rehearing. Compliance with it is beneficial to the KCC and all parties, but some compliance falls short of fulfillment of the statutory requirement of specific expression of grounds for rehearing when considered on judicial review. Compliance with K.A.R. 82-1-235 (a) enables understanding consideration of a specific ground for review that is affected or supported by evidence presented to the KCC. Paragraph 5 of the application for rehearing sheds no light upon the purported impact of the identified evidence, nor does it reveal in what respect the alleged failure to consider these “facts” is claimed to render the January 17, 1980, order erroneous. Paragraph 5 does not satisfy the statutory requirement for specific and direct allegation of the grounds upon which the order is considered to be unlawful and unreasonable.
In sum, we conclude Peoples’ application for rehearing was insufficient to preserve for judicial review any contention of unlawfulness or unreasonableness in the January 17, 1980, order which has been asserted in this proceeding. Accordingly, we hold the decision of the district court must be set aside. Our decision renders it unnecessary to address the numerous other questions raised and arguments made.
The judgment and order of the district court is vacated and set aside. The case is remanded with directions to dismiss.
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Meyer, J.;
This is an appeal from a conviction of making a terroristic threat, K.S.A. 21-3419.
On January 4, 1980, Bill Carlin (appellant) called Michael VanLandingham, director of the Social and Rehabilitation Services (SRS) in Johnson County, Kansas, and expressed dissatisfaction with the way his application for benefits was being processed. During the course of the conversation, appellant made several threats which are the basis for the charges.
Through the course of several appearances and preliminary hearings, the trial court informed appellant of his right to counsel. Appellant stated he would rather act as his own attorney. The court inquired as to appellant’s education and ruled that an attorney would be appointed to sit with the appellant and assist him in any legal matters he might encounter in the case. Appellant was unable to meet $1,500 bond and was incarcerated.
On February 1, 1980, the case again came on for preliminary hearing. The State requested that a competency determination be made upon appellant’s competency to stand trial. Appellant stated he was competent and objected to the procedure. The court granted the motion to determine competency. On April 29, 1980, the court found appellant to be competent to stand trial.
On September 17, 1980, the court extensively questioned appellant about his knowledge of the law and explained the procedural matters in which an attorney would be needed to adequately present appellant’s case. Appellant continued to state that he wanted to represent himself. The court ordered that the court-appointed attorney continue to represent him.
At the same hearing, the court ordered that tapes recovered by the attorney for appellant be turned over to the district attorney’s office. Appellant’s attorney objected to the tapes being turned over on the grounds that they were work product and gained through the attorney-client privilege. Appellant himself wanted the tape recordings to be turned over to the State. The full text of the telephone conversation between appellant and Mr. VanLandingham is contained in one of the tapes.
The case was tried to a jury and appellant was convicted by a jury of the charge of terroristic threat in violation of K.S.A. 21-3419.
Appellant was given credit for the year he spent in jail pending trial and the balance of the sentence was suspended. Appellant was ordered released from custody.
Appellant first contends that the court erred in denying him the right to represent himself.
The United States Supreme Court case establishing a right of self-representation was Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975).
In order for an accused to represent himself, he must “ ‘knowingly and intelligently’ ” forego the benefits of counsel. In order to assure that there is a knowing and intelligent waiver, the accused “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” 422 U.S. at 835. In Faretta, the record clearly showed that the accused was “literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” 422 U.S. at 835. It was also noted that “technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” 422 U.S. at 836.
The court held that in forcing the accused to accept a state-appointed public defender against his will, the California courts deprived him of his constitutional right to conduct his own defense and the judgment was vacated and remanded.
Faretta recognized that a state may — even over objection by the accused — appoint a “standby counsel” to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of his self-representation is necessary. 422 U.S. at 834-35, n. 46.
In the instant case, the trial judge made the accused aware of the dangers and disadvantages of self-representation. The trial judge spent considerable time advising appellant of the problems with procedure with which he would be faced and the need for an attorney. The accused continually requested that counsel not be appointed in spite of such warnings. The only distinguishing factor of this case is that appellant had some emotional disturbances which were evident from a reading of the transcripts of the various preliminary hearings. He spoke of things such as the “Klong” and “ream power” and other flights of fancy which indicated he was not entirely in touch with reality. Also, at one time, he had been institutionalized for mental problems. We conclude there was sufficient evidence before the trial court from which it could conclude that appellant was not competent to knowingly and intelligently waive his rights to counsel.
“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938).
In Moore v. Michigan, 355 U.S. 155, 2 L.Ed.2d 167, 78 S.Ct. 191 (1957), it was indicated in dicta that evidence of emotional disturbance may be a factor in determining whether there was an intelligent waiver of the right to counsel.
Furthermore, courts indulge “every reasonable presumption against waiver” of fundamental constitutional rights and “do not presume acquieseense in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. at 464.
We conclude the trial court’s refusal to allow appellant to represent himself was based upon evidence of incompetence to knowingly and intelligently waive his right to counsel and said refusal is affirmed on that basis.
Appellant contends the court erred in ordering his appointed counsel to turn over to the State tape recordings allegedly gained through attorney-client confidential communications. Appellant also argued that the tapes were work product.
The tapes were not prepared in anticipation of trial; they cannot be considered work product for that reason. Appellant evidently tape-recorded all of his conversations with SRS personnel (and others). One tape was of the conversation with Mr. VanLandingham in which the appellant made the threats. The other was of a conversation with a social worker from SRS in which the appellant referred to the threats made to VanLandingham. Only the recording of the conversation with VanLandingham was admitted into evidence.
There is a line of cases dealing with the duty of an attorney to turn over physical evidence gained as a result of confidential communications between client and attorney.
In State ex rel. Sowers v. Olwell, 64 Wash. 2d 828, 394 P.2d 681 (1964), an attorney appealed from an order placing him in con tempt for refusing to produce, at a coroner’s inquest, material evidence of a crime, specifically a knife considered as a possible murder weapon. The court held that while the privilege protected the attorney from being required to give testimony concerning information received by him from his client in the course of their relationship, such privilege did not extend to the murder weapon. The court held:
“We are in agreement that the attorney-client privilege is applicable to the knife held by appellant, but do not agree that the privilege warrants the attorney, as an officer of the court, from withholding it after being properly requested to produce the same. The attorney should not be a depository for criminal evidence . . . which in itself has little, if any, material value for the purposes of aiding counsel in the preparation of the defense of his client’s case. Such evidence . . . could clearly be withheld for a reasonable period of time. It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution.” 64 Wash. 2d at 833-34.
The case goes on to discuss the privilege against self-incrimination; however, in the instant case that issue was not raised below, nor is it asserted on appeal and we are precluded from considering it.
In Morrell v. State, 575 P.2d 1200 (Alaska 1978), the duty to turn over physical evidence was extended to “mere evidence” of a client’s crime.
“[N]o distinction should be drawn in the privilege context between physical evidence obtained by a criminal defense attorney which is ‘mere evidence’ of a client’s crime and that which may be said to be either a fruit or an instrumentality of the crime.” 575 P.2d at 1209.
Morrell disapproved language in an earlier case, In re Ryder, 263 F. Supp. 360 (E.D. Va.), aff’d 381 F.2d 713 (4th Cir. 1967), which stated in dicta that neither the client nor his attorney could be compelled to produce merely evidentiary articles, as opposed to fruits or instrumentalities of the crime.
See also People v. Lee, 3 Cal. App. 3d 514, 83 Cal. Rptr. 715 (1970), w'herein it was held that the attorney-client privilege does not give an attorney the right to withhold evidence. The court stated that it would be an abuse of a lawyer’s professional responsibility to knowingly take possession of and secrete instrumentalities of a crime.
It is noted, however, that both Morrell and Lee involved dicta, because under the facts of both cases, the evidence was given to the attorney by third parties, so that the evidence was not ob tained as a direct result of a confidential communication with the client.
See also People v. Meredith, 29 Cal. 3d 682, 175 Cal. Rptr. 612, 631 P.2d 46 (1981), recognizing an attorney’s duty to turn over evidence and stating that whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question.
This question is one of first impression in Kansas. K.S.A. 60-426(a) provides:
“[C]ommunications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (1) if he or she is the witness to refuse to disclose any such communication, and (2) to prevent his or her lawyer from disclosing it... . The privilege may be claimed by the client in person or by his or her lawyer, or if an incapacitated person, by either his or her guardian or conservator, or if deceased, by his or her personal representative.”
Since the appellant’s attorney had a duty to turn over the evidence under the line of cases mentioned above, there was no error in the court ordering him to do so.
Furthermore, we have a unique situation in the case at bar because the client was more than happy to turn the evidence over to the State and originally requested the attorney to tell the court about the existence of the tapes because he wanted to be released to go home to look for them. We conclude that the communications ceased to be privileged, and, thus, the evidence was not found as a result of a confidential communication.
“Communications between attorney and client are privileged when made in the course of that relationship and in professional confidence. Communications not made in such confidence are not privileged. Where the client chooses to make or receive communications from his attorney in the presence and hearing of third persons they cease to be confidential and are not entitled to the protection afforded by the privilege.” Fisher v. Mr. Harold's Hair Lab, Inc., 215 Kan. 515, Syl. ¶1, 527 P.2d 1026 (1974).
Because the evidence was not obtained by the attorney as a result of a confidential communication, there was no error in ordering the tapes turned over to the State.
Affirmed.
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Meyer, J.:
This is an appeal of a class action for injunction. Plaintiffs B. J. Linnens, Charles Dannenfelser, and Jimmie D. Baldwin (appellees) brought the action, as patrons of disorganized Florence Common School District U-4, alleging that the defendants, Eugene Christensen, Gerry Harris, John Thole, Ron Kirkpatrick, Reuben Zerger, Les Allison, and Ron Ludwig, the duly elected and acting Board of Education of Marion and Florence Unified School District No. 408, Marion County, Kansas (appellants or Board), had closed a school building in violation of K.S.A. 72-8213. After conducting a hearing, the district court granted appellees an injunction. From the rulings and orders of the district court, the Board appeals.
Unified School District No. 408, hereinafter called U.S.D. 408, came into existence July 1, 1966, as a result of Session Laws, 1963, Ch. 393, found at K.S.A. 72-8201 et seq. Thereafter, Florence Common School District U-4 was disorganized, apparently under Session Laws, 1969, ch. 312, found at K.S.A. 72-8138 et seq. The Florence territory was attached and made a part of U.S.D. 408, bringing with it the Florence attendance facility consisting of five buildings housing classrooms, a principal’s office, and a separate gymnasium.
At the time of unification the grades taught at Florence were grades kindergarten through sixth, operated as an elementary school; and grades seventh, eighth, and ninth, operated as a junior high school. During the school year 1977-78, the junior high school dropped grade ninth and operated as a “middle school” with the two remaining grades. During the school year 1977-78, elementary grades first through sixth were held in the building identified as the “old stone building.” Kindergarten was held in another building which also housed the school’s boiler, and the middle school was conducted in another building known as the “brick building.”
On December 5, 1977, the state fire marshal’s office inspected the “old stone building.” This resulted in the issuance of a fire marshal’s letter dated December 7, 1977. That letter read as follows:
“Dear Superintendent Wiebe:
“On December 5, 1977 I made a personal inspection of the above captioned facility.
“The building was found to be questionable as to the structural condition. There had been a fire in the basement which had left the floor joist heavily charred. Some of the joists were burned at the foundation to the extent they did not extend into the foundation; thus, giving the appearance they were not giving the proper support.
“On the second floor the floors sag quite badly in some areas. Since we are not structural engineers, it is impossible for us to determine why the floors are in this condition.
“Our office requests that a professional engineer survey the building to determine if it is structurally safe. If it is found to be safe, we request that the engineer provide us with a written document with his seal and signature. If the building is to remain in use after this school term, the following improvements will have to be made.
(1) All electrical wiring shall conform with the National Electric Code.
(2) The floor joist in the basement (1st floor) will have to be protected with % inch fire check sheetrock.
(3) The stairwells both to the basement and the second floor will have to be enclosed with at least one hour fire resistive construction including fire doors and closers.
(4) The windows leading onto the fire escapes will have to be replaced with doors. NOTE: the doors can be framed into the window opening, it will not be necessary to cut the walls down to floor level.
(5) All exits shall be identified with illuminated exit lights. (Including fire escapes.)
(6) The fire alarm system shall be renovated to provide an approved system.
“If there should be any questions pertaining to this survey, please contact our office.
“Your cooperation is greatly appreciated.
Sincerely,
I si Floyd H. Dibbern by mer
Floyd H. Dibbern
State Fire Marshal”
The Board met in regular session on December 12, 1977, and the state fire marshal’s letter was reviewed, resulting in the Board’s decision to have a public meeting on December 29, 1977. This public meeting was convened, but there was no official Board action and minutes were not taken.
At the next regular Board meeting of January 9, 1978, a number of proposals were considered for the overall use of the Florence attendance facility, some of which included reassignment of grades. The Board narrowed the proposals down to two; however, the future of the “old stone building” mentioned in the fire marshal’s letter was not discussed.
On January 25, 1978, at a special meeting, various plans for the overall use of the Florence attendance facility were considered, culminating in the adoption of Resolution No. 166, titled “School Organization,” which provided as follows:
“Gerry Harris moved and Reuben Zerger seconded to adopt the following school organization plan; Kindergarten, grades 1 and 2 at Florence combining classes 1 and 2 one teacher to teach Kindergarten in the morning and 1st in the afternoon, second teacher to teach 1st and 2nd. Kindergarten, grades 1 and 2 to remain as is in Marion. Grades 3, 4, and 5 to be held in Marion with students being bused from Florence. Grades 6, 7 and 8 to be held in Florence in the Middle School with students being bused from Marion. Life Skills to be added to the Middle School curriculum and Home Ec. and Art dropped. Students in grades K to 2 who live in Florence or who live south of Florence may select to attend school either in Florence or Marion. Motion carried 5-2 (Eugene Christensen, Gerry Harris, John Thole, Ron Kirkpatrick, and Reuben Zerger in favor; Les Allison and Ron Ludwig opposing)”
Resolution No. 168, titled “Closing Buildings,” was also adopted; it provided as follows:
“Ron Ludwig moved and Gerry Harris seconded to delay any action on how to dispose of the Florence Stone Building for two years. To request that any patron or organization who has a plan as to what to do with this building should submit such a plan in writing by February 1, 1980. Motion carried 7 - 0”
There was no appeal of the December 7, 1977, fire marshal’s order to the State Board of Education by nine qualified electors as prescribed in K.S.A. 72-8213(g).
On March 13, 1978, appellees commenced this class action, alleging that Resolution No. 166 in effect closed the grade school at Florence, Kansas, in violation of K.S.A. 72-8140 and 72-8213; appellees prayed for an injunction preventing the implementation of said resolution.
Appellants filed their answer on March 30, 1978, and subsequently their motion to dismiss and for summary judgment. On August 23, 1978, the motion to dismiss was granted upon the grounds of lack of jurisdiction. The district court ruled that appellees’ only relief from the Board’s action was appeal pursuant to K.S.A. 1981 Supp. 60-2101(d). Appellees appealed the district court’s decision to this court, and this court found that the prayer for injunctive relief was an appropriate remedy; on September 28, 1979, the case was remanded back to the district court for further proceedings. Linnens v. Board of Education of U.S.D. No. 408, 3 Kan. App. 2d 662, 600 P.2d 152, rev. denied 227 Kan. 927 (1979).
On July 22, 1980, the district court denied appellants’ motion for summary judgment and ordered that the case proceed to hearing. At this hearing it was determined, by agreement of the court and parties, that written stipulations would be submitted and that the district court would make its judgment based upon these stipulations, along with certain depositions and transcripts of previous hearings identified in the stipulations.
The district court entered its memorandum on November 4, 1980, which requested preparation of a journal entry by counsel for appellees. Subsequently, on January 16, 1981, this memorandum was amended; and, on March 26, 1981, the final journal entry was filed herein, which found in pertinent part as follows:
“2. The letter from the State Fire Marshal’s Department dated December 7, 1977, was not in the form of an order, but recommended extensive remodeling or in the alternative that said structure not be used for school purposes.
“3. That at no time did the Defendant Board of Education make a finding that the cost of such restoration, repair or remodeling was unwarranted or excessive.
“4. The Defendant Board of Education did not in its minutes of December 12, 1977, or January 9, 1978, or on January 25, 1978, ever make a formal or specific finding and record said finding in its minutes that such old stone elementary school building located at Florence, Kansas, be closed or its use be discontinued.
“5. In light of the finding No. 3 above there is no basis in which any nine qualified electors, who resided in the attendance center could, prior to said next meeting of said Board of Education, appeal the order of the State Fire Marshal to the State Board of Education.
“7. That Resolution No. 166 does not close any school building nor does it discontinue the use of any school building. This resolution merely reassigns students and teachers, provides for busing and changes some subjects to be taught in the district.
“8. That said old stone elementary school building has not been used as an attendance facility since the close of the 1977-78 school year.
“9. The Court generally finds for the plaintiffs.
“10. That the Board of Education of Marion and Florence Unified School District No. 408, Marion County, Kansas, has not legally colsed [sic] the old stone elementary building at Florence, Kansas, in compliance with Kansas law.”
This sam.e final journal entry grants a permanent injunction against U.S.D. 408, preventing third, fourth and fifth grade Florence students from being bussed to Marion, and requiring them to attend school at the Florence facility.
Appellants have appealed the district court’s findings of fact, conclusions of law, and the relief granted appellees, but have filed no action to stay the enforcement of the district court’s permanent injunction as provided by K.S.A. 60-262(c).
This case was submitted to the trial court upon an agreed stipulation of facts. All the evidence in the case being documentary, the appellate court is afforded the same opportunity to weigh and consider the evidence as the trial court. This being the case, the appellate court may review not only questions of law, but may determine de novo what the facts establish. Victory Nat’l Bank of Nowata v. Stewart, 6 Kan. App. 2d 847, Syl. ¶ 1, 636 P.2d 788 (1981); Stith v. Williams, 227 Kan. 32, Syl. ¶¶ 1, 2, 605 P.2d 86 (1980).
This entire case turns upon a single question of law — whether the above-mentioned resolutions adopted by the Board violate the requirements of K.S.A. 72-8213. Pertinent portions of 72-8213 provide as follows:
“(a) The board shall not close any attendance facility that was being operated at the time the unified district was organized if at least three-fourths (%) of the territory and at least three-fourths (%) of the taxable tangible valuation of the district which formerly owned such building is included in such unified district unless and until a majority of the resident electors within the attendance center of such attendance facility shall give their consent thereto. Such consent may be given in writing in the form of a petition, or the board may submit the question to a vote of such resident electors in the attendance center at an election which shall be conducted in the same manner as for approval of bonds of the unified district. If a majority of those voting on the question vote in favor thereof, the same shall constitute consent for the purpose of this section. The board may close any attendance facility at any time except as is otherwise provided in this act. For the purpose of this section the following terms shall have the following meanings: The term ‘attendance facility’ means a school building which has been property of school district disorganized pursuant to this act, but which, at the time under consideration, is owned by the unified district. The term ‘attendance center’ means the area around an attendance facility consisting of the territory in such unified district of the disorganized district which formerly owned such attendance facility.
“(e) Nothing in this section shall be deemed to restrict or limit the authority of any board to change the use of any attendance facility, so long as at least three (3) high-school grades, three (3) junior high-school grades, or six (6) elementary school grades are offered in such attendance facility.”
The operative words in 72-8213 are “attendance facility”; this phrase is briefly defined in subsection (a). The precise meaning of these words has also been addressed by the Kansas Supreme Court. In Hand v. Board of Education, 198 Kan. 460, 426 P.2d 124 (1967), the high court had this to say:
“ ‘Attendance facility’ is defined as a school building which has been property of a school district disorganized. The meaning of the term seems clouded rather than cleared by the definition supplied in the act.” (p. 463.)
“The words ‘attendance facility’ are not used elsewhere in the act. The definition supplied by the act (i.e. school building) is of some help in arriving at the correct meaning intended by the legislature. The restriction on closing is applied in case of an attendance facility that was being operated at the time the unified district was organized. A school is operated when a school building is available for students to attend school. Idiomatically speaking a school is referred to as being operated and a school building as being used. The term attendance facility combines two elements in its general meaning. The first refers to a place of attendance and the second a place more convenient to attend. When we consider in context a school building, a place of attendance and a place more convenient to attend it compels us to define ‘attendance facility’ as any high school, junior high school, or elementary grade school being operated at the time the unified district was organized.” (p. 465.)
The decision in Hand was reached under a predecessor of K.S.A. 72-8213, K.S.A. 72-6756 (Corrick). That statute had no provision comparable to subsection (e) of 72-8213. Therefore, the court in Hand ruled that changing an “attendance facility” from a three-year high school to a three-year junior high school without the consent of a majority of resident electors was impermissible. K.S.A. 72-8213, and particularly subsection (e) thereof, was subsequently adopted; the effect of this was explained as follows:
“Paragraph (e) appears to be a legislative alteration of the law discussed in the Hand decision, and clearly permits certain classes in a school building to be discontinued without a vote of the people so long as some designated classes are maintained there.” Hensley v. Board of Education of Unified School District, 210 Kan. 858, 863, 504 P.2d 184 (1972).
Prior to the appellants’ actions, the Florence attendance facility offered grades kindergarten through eighth. After adoption of Resolution No. 166, grades kindergarten through second and grades sixth through eighth were to be offered, with grades third through fifth being bussed to Marion. Manifestly, Resolution No. 166, calling for cross-bussing, did not close the Florence attendance facility. It did, however, alter the number of grades to be offered there. The issue is whether the change in use brought about by the adoption of Resolution No. 166 violated 72-8213 in that no consent was obtained from the resident electors. Restated, this issue boils down to whether the conditions of subsection (e) have been met.
Under subsection (e) a school board may alter the grade usage of an attendance facility without the affirmative consent of a majority of the resident electors, provided certain conditions are met — namely, that the facility continue to offer either three high school, three junior high or six elementary school grades. If these conditions are not met, or if an attendance facility is to be closed entirely, then the consent of a majority of said electors is required.
The Supreme Court, in construing subsection (g), has held that a great deal of latitude should be afforded the local school boards in structuring their own local school systems. The purpose of subsection (g) has been stated thus:
“As to the spirit; the underlying purpose of subsection (e), as we see it, was to give the greatest possible latitude to the local boards in utilizing their school buildings, while ensuring to the electors of the disorganized districts that, unless they consent, their buildings would continue to receive substantial and not token use for school purposes.” Meinhardt v. Board of Education, 216 Kan. 57, 65, 531 P.2d 438 (1975).
In keeping with this general pronouncement, the courts have refused to apply a strict construction to the phrases “high school,” “junior high school” and “elementary school,” but have instead allowed these terms to be broadly construed. In addressing the argument that the legislature, in enacting 72-8213(g), intended the terms “elementary school” to mean only grades first through sixth, and “junior high” to mean only grades seventh through ninth, the court in Meinhardt had this to say:
“First, they say the trial court failed to give to the statutory phrases ‘junior high grades’ and ‘elementary grades’ their common and ordinary meaning. As we see it those terms do not, even in ordinary usage, have any such rigid and fixed meaning as plaintiffs would ascribe to them. The varying meanings employed by both the legislature and the state board of education, in the statutes and rules noted by the trial court, attest to that. We think the use of these relatively broad generic terms in the statute implies a legislative leaning toward flexibility rather than rigidity. Had specific grades been intended it would have been a simple matter for the legislature to have named them.” 216 Kan. at 61.
Applying the rule allowing local flexibility, the Meinhardt court issued the following holding:
“For the purposes of K.S.A. 72-8213(e), kindergarten may be considered as one of the six elementary grades required to be offered after a change of use. Grade six, when incorporated into a junior high school, may be considered as one of the three required junior high grades.” 216 Kan. 57, Syl. ¶ 2.
Absence of rigidity in structure also finds support in administrative regulations. K.A.R. 1981 Supp. 91-30-14a(b)(l) provides as follows: “An accredited elementary school shall be organized to include any combination of grades kindergarten through nine (9).”
The common thread running through the statutes, regulations and court opinions seems to be the tendency to afford the local school boards as free a hand as possible in the operation and organization of their individual educational systems. Each school board should be allowed to adapt its system to the peculiar situation existing in its district. Grass roots supervision of education is a historical element of our 'society and was within the contemplation of the legislature in enacting 72-8213. In deciding the instant case, we are conscious of and guided by this principle of local autonomy.
To reiterate the facts of the instant case, prior to adoption of Resolution No. 166, the Florence attendance facility offered nine grades, being grades kindergarten through eighth. As we construe this situation, all these grades comprised but a single elementary school — thus, all were part of a single attendance facility. Following said adoption, only six elementary grades remained, grades kindergarten through second and sixth through eighth. This would be a permissible change in use so long as subsection (e) does not implicitly require that the six remaining elementary school grades be consecutive. Guided by the general principle allowing considerable latitude to local school boards, we hold that subsection (e) has no such implied requirement. No consent is required from the resident electors to effectuate a change in use of an attendance facility, provided the school board contemplates continuance of any six elementary grades following the change.
In light of our holding above, the situation existing at the Florence attendance facility after the adoption of Resolution No. 166 complied with subsection (é) as a permissible change in use of said facility. Thus, no elector consent was required to make the change. From this it follows that the trial court erred in granting its injunction. This case must be reversed and remanded with directions to the district court to dissolve its injunction and to dismiss appellees’ action.
One final point should also be noted. Appellees have advanced the argument that Resolution No. 168, closing the “old stone building,” was a violation of 72-8213(g), because no election of consent was held. They would uphold the trial court’s injunction on that ground. This argument has no merit for two reasons. First, Resolution No. 168, standing alone, would have no effect upon grade usage at the Florence facility; it merely discontinued the use of a structurally deficient building. It was in substance unrelated to Resolution No. 166; it alone would require no cross-bussing. Thus, it was unrelated to the scope of the injunction and will not serve as validation therefor.
Second, Resolution No. 168 did in no event violate K.S.A. 72-8213(g). That subsection provides;
“Whenever the state fire marshal has (1) ordered a school building to be closed or has recommended the closing of a school building or (2) made recommendations for the repair, remodeling or restoration of a school building to make it safe, and the board of education of such school district makes a finding that the cost of such restoration, repair or remodeling is unwarranted or excessive, such board of education, under either of the foregoing circumstances, may close and discontinue the use of any such building, without complying with the requirements of subsection (a) of this section. Notwithstanding any other provision of law to the contrary, whenever the state fire marshal issues an order to which this subsection ig) would apply, the board of education of the affected school district, at its first meeting after receiving any such order, shall read the same and make the same available for public inspection, but such board of education shall take no action thereon until the next following regular meeting thereof. Any nine qualified electors who reside in the attendance center of any such attendance facility may prior to such next meeting of such board of education appeal the order of the state fire marshal to the state board of education by serving a notice of appeal to the state board of education, the state fire marshal and a copy thereof to the affected board of education. Such affected board of'education shall take no further action upon the matter until it receives the order of the state board of education either sustaining or overruling the order of the state fire marshal. All such appeals shall be promptly determined by the state board of education and its order thereon shall be conclusive.”
That subsection has been described in the following way;
“It is evident the legislature intended to recognize the difference between closings relating to policy decisions in which event approval of the electors in the attendance center is required under subsection (a) of 72-8213, and those closings which relate to the condition of the building contemplated in subsection (g). With respect to the latter, protection against possible arbitrary action on the party [sic] of the State Fire Marshal or the local board of education is afforded by the provisions for the exercise of the supervisory powers of the State Board by way of appeal.” Brickell v. Board of Education, 211 Kan. 905, 915, 508 P.2d 996 (1973).
In the instant case, the appellants received a letter from the office of the state fire marshal dated December 7, 1977. As we construe it, that letter constituted an order to the Board to cease using the “old stone building” as of the next school term unless certain acts, including remodeling and obtaining certificates of safety, were done. This is different than a recommendation to remodel, restore or repair which can be avoided only by taking affirmative steps, possibly involving great cost and expense. Being an order, even one avoidable by a condition subsequent, it falls within the category of 72-8213(g)(l) above, and no elector consent was therefore necessary to discontinue use of said building.
Reversed and remanded to the district court with directions to dissolve the injunction previously granted herein and to thereafter dismiss the class action.
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Woleslagel, J.:
Cylus and Shirley Johnson (plaintiffs-appel lants) are husband and wife. They appeal from a denial of their motion for summary judgment and a grant of summary judgment to defendants. Plaintiffs claimed Albert R. Johnson, father of Cylus and two other sons, Adley E., and Don A., breached an agreement to treat Cylus equally with his brothers by executing a supplement to an existing trust instrument. The supplement provided that none of the brothers would receive any benefit, but the wives and children of the two other brothers would. We reverse as to each motion for summary judgment.
The total evidence before the trial court consisted of an original trust agreement, a first supplement, the court files in this and three earlier court proceedings, an agreement settling most issues in two of those proceedings, a second supplement to the trust agreement and an affidavit of attorney Aubrey G. Linville who represented Cylus when the settlement agreement was entered into. The factual representations of the affidavit are substantially as set forth hereafter and they are not disputed.
On May 21, 1969, Albert R. Johnson established a revocable trust which provided in relevant part that upon the death of the survivor of Albert and his wife Elsie G. Johnson:
“Trustees shall divide this trust into such number of separate shares of equal value as to provide one such separate share for each child of the Donor who is then living, and one such separate share for each child of the Donor who is then deceased but who has any one or more of a spouse or issue then living.”
After the execution of the trust instrument, a dispute arose concerning family business operations. On August 13, 1970, Albert and Elsie filed a petition in the probate court of Saline County alleging that Cylus was mentally ill and requesting a determination of mental illness and an order of protective custody. On that same day an ex parte hearing was held, an order for protective custody was issued, and the sheriff took plaintiff into custody and delivered him to Asbury Hospital in Salina. Plaintiff was released on August 17,1970, pending a final determination of his sanity.
On September 1,1970, Albert signed an amendment to the trust termed a “First Supplement.” It recognized a provision in the original which provided for funds for Albert and his wife during their lives. Instead of providing a share for each son or his family, however, it revoked the provision for Cylus or his family while it provided shares for the other two sons, or their families.
On September 10, 1970, the probate court determined that Cylus was not mentally ill and he was discharged.
On February 3, 1971, Cylus filed an action against Albert, Adley and Don seeking the dissolution of two family partnerships and accountings thereof. On August 13, 1971, Cylus filed an action against Albert and Elsie for false imprisonment and malicious prosecution arising out of the mental illness proceedings. On February 15, 1972, the day before trial, Albert, Elsie, Cylus and his wife Shirley, and their attorneys entered into a settlement agreement which provides in part:
“8. Upon performance of the above promises, Cy agrees to dismiss, with prejudice, Case No. 29,682 and Counts I and III of his Amended Petition in Case No. 29,356; and Albert shall dismiss the Second Counterclaim found in his Answer in Case No. 29,356. The court costs incurred in both cases to the dates of said dismissals shall be paid one-half by Cy and one-half by Albert and Elsie.
“9. Albert and Elsie agree that Cy shall receive the same share of Albert and Elsie’s property as Adley E. Johnson and Don A. Johnson shall receive, whether by gift, Will, trust agreement, intestate succession, or any other means; it being the intent herein that Albert and Elsie shall treat Cy equally with his brothers, Adley E. Johnson and Don A. Johnson.
“10. Upon performance of the aforementioned promises, it is agreed that this Agreement shall constitute a full and final release of any and all claims which Albert and Elsie have against Cy and Shirley, and which Cy and Shirley have against Albert and Elsie.”
On March 15, 1972, Albert executed a “Second Supplement” to the trust, providing in pertinent part:
“It is the express intent and purpose of the Donor that Cylus A. Johnson shall not receive any property from the Donor. The purpose of this Second Supplemental Trust Agreement is to provide that neither Adley E. Johnson nor Don A. Johnson shall receive any property from the Donor, whether by gift, will, trust agreement, intestate succession, or any other means, so that Cylus A. Johnson shall not be entitled to receive any property from the Donor under the provisions of Paragraph 9 of said Agreement dated February 15, 1972. Accordingly, subpart (1) of sub-paragraph (b) of Paragraph 2 of said Trust Agreement dated May 21, 1969, as supplemented and amended by Paragraph 1 of said First Supplemental Trust Agreement dated September 1, 1970, is hereby amended to be as follows:
“(1) The Trustees shall pay or distribute to or apply for the benefit of any one or more of a group consisting of the spouse of the beneficiary for whom such separate share is designated and the issue of such beneficiary such amount or amounts of the net income and principal of such separate share as the Trustees, in their absolute discretion, may determine at any time and from time to time, and the Trustees shall have the absolute discretion, at any time and from time to time, to make unequal payments or distributions to or among any one or more of said group and to exclude any one or more of them from any such payment or distribution. In no event shall any of the income or principal of any such separate share be paid to or applied for the benefit of the beneficiary from whom such separate share is designated. . . .
“2, In no event shall the Trustees pay or distribute any of the income or principal of this trust or any of the separate shares created hereunder to or for the benefit of Cylus A. Johnson, Shirley L. Johnson, their issue of every degree or the spouse or spouses of their issue of every degree.”
Albert died on January 26, 1977, and copies of the trust and amendments thereto were received by the attorney then representing Cylus on February 29, 1977. Cylus Johnson and his wife filed this action against Albert’s estate on June 24, 197†, alleging fraud, breach of a confidential relationship and breach of contract.
Believing that the record in this case does not support the plaintiffs’ claim of breach of a confidential relationship, our analysis turns upon whether the admitted facts show that the trust became burdened by a binding agreement resulting in the father thereafter being legally unable to make an inequitable change in the original trust provision which favored all three sons and their families. It is admitted that the wording of the original trust reserved the general right of revocation. As stated by Scott and Scott, Cases on Trusts, p. 621 (1966), citing Restatement (Second) of Trusts § 330, “The settlor has power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power.” Thus any restraint on Albert Johnson’s power to revoke must come, if at all, as a result of the settlement agreement.
At the time this agreement was made each side was represented by counsel and no claim of lack of understanding has been advanced.
Neither is there any claim that the lawsuits then pending were without merit; rather, the terms of the settlement suggest the contrary. Accordingly, consideration for the agreement appears adequate. Consideration for a contract may consist of dismissal of pending judicial proceedings, at least if they are not palpably unjust or groundless. 17 C.J.S., Contracts § 107, p. 826. An agreement so made is not subject to repudiation. Fieser v. Stinnett, 212 Kan. 26, 31, 509 P.2d 1156 (1973).
Since this trust relates to postponed disposition of property, it is not unlike an agreement to leave property by will. As stated in 94 C.J.S., Wills § 117, p. 877, “An agreement to make a particular disposition of property cannot be rescinded by the promisor after performance on the part of the promisee without the promisee’s consent thereto. This would be an intolerable fraud which a court of equity will not permit.” See also In re Billinger’s Estate, 208 Kan. 327, 491 P.2d 924 (1971). Against this background, we turn to what interpretation and effect must be given to the settlement agreement.
In interpreting this contract we first note that the parties agree the contract is not ambiguous and we concur. The construction and interpretation of a contract unambiguous in its terms is a question of law for the courts. Duffin v. Patrick, 212 Kan. 772, 778, 512 P.2d 442 (1973). Regardless of the construction or interpretation of a written instrumént by the trial court, on appeal the instrument may be interpreted and its legal effect determined by the appellate court. Wichita Properties v. Lanterman, 6 Kan. App. 2d 656, 661, 633 P.2d 1154 (1981). A cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to such intention. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, Syl. ¶ 2, 508 P.2d 889 (1973); Pottratz v. Firkins, 4 Kan. App. 2d 469, 471, 609 P.2d 185 (1980). When a contract is unambiguous it must be enforced according to its terms so as to give effect to the intention of the parties at the time they entered into the contract, as determined from the instrument itself. Steel v. Eagle, 207 Kan. 146, 149, 483 P.2d 1063 (1971). The intention of the parties and the meaning of the contract are to be determined from the plain, general and common meaning of the terms used. Duffin, 212 Kan. at 778. The law favors reasonable rather than unreasonable interpretations. Results which vitiate the purpose or reduce the terms of the contract to an absurdity are to be avoided. Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, Syl. ¶ 3, 519 P.2d 646 (1974); Pottratz, 4 Kan. App. 2d at 471.
In searching for a reasonable interpretation which will avoid “absurdity,” we regard paragraph 9 of the settlement contract as the operative paragraph with respect to the distribution of Albert and Elsie’s property. We hold that the intent of the parties in this regard was that Cylus, Adley, and Don were to be treated equally in that each would share, not that they would be treated equally in sharing nothing. Any benefit conferred on Adley and Don by reason of the distribution of Albert and Elsie’s property would also be conferred proportionately on Cylus.
The original trust instrument divided the remainder interest in the property equally among Cylus, Adley, and Don. The first amendment to the trust divided the remainder interest between Adley and Don to the exclusion of Cylus. By subsequently executing the settlement contract, Albert invalidated the first trust amendment and limited his power to further amend the trust to amendments consistent with the contract. Fieser, 212 Kan. at 31. Further, at this time, the provision of the original trust first quoted in this opinion was reinstated: All sons were to share equally.
The second amendment to the trust was an attempt to again divide the remainder interest into two shares, labeled Adley’s share and Don’s share, to be administered and distributed for the use and benefit of the wives and children of Adley and Don, with express instructions that no distributions be made for the use or benefit of Cylus, Shirley, or their children. While the wording specified that no distribution was to be made for the benefit of Adley or Don, we can conceive of no circumstances where distributions for the use or benefit of the wives and children of Adley and Don would not at least indirectly benefit them also.
It is apparent that the second trust amendment was an attempt by Albert to indirectly accomplish that which he had contracted not to accomplish directly. Generally speaking, that which may not legally be done directly may not be accomplished indirectly. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, Syl. ¶ 6, 507 P.2d 189 (1973).
It also is apparent how tangled would be the web that Albert would have woven if his second supplement were allowed to stand. Since any distribution to their families would be of some benefit to Adley or Don if living, the result would be that no distribution of any kind could be made after Elsie’s death until every son had died.
One maxim of equity is that equity regards as done that which should be done, but the hand of equity has two sides. With one it creates that which should have been created but was not. With the other, it wipes away that which was attempted but should not have been.
The first supplement was made invalid by the settlement agreement. The second supplement is invalid because it was an improper attempt to avoid the settlement agreement. Thus, the trust stands as originally drawn.
Reversed and remanded with directions to enter summary judgment in favor of plaintiffs.
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Spencer, J.:
In this matter, we are required to review an order of the Kansas Corporation Commission by which it denied the utility an increase in rates.
Elkhart Telephone Co., Inc. (Elkhart), is a public utility within the meaning of K.S.A. 66-104, which furnishes local exchange and toll telephone service to approximately 1148 customers in southwest Kansas. Its business is both interstate and intrastate. Approximately 48 percent of its investment in facilities and the revenues and expenses associated therewith were allocated to interstate operations under the provisions of the NARUC-FCC Separations Manual. The KCC found it necessary to separate interstate and intrastate operations “to avoid jurisdictional conflicts between state and federal regulatory agencies and to avoid discriminatory rates which result in one class of ratepayers subsidizing another.”
On December 3, 1980, Elkhart filed its original application requesting permission to put into effect rate schedules to produce additional gross revenues of $74,731. This was tied to a rate base of $854,275, an overall rate of return of 10.62 percent, and a rate of return on equity of 13 percent.
Duzel D. Yates, a senior utility regulatory auditor for the KCC, testified that in connection with his investigation of Elkhart’s application, it was discovered Elkhart had not separated the interstate and intrastate portions of its operations. Staff did so, using an existing separations study prepared by an independent accounting firm for Elkhart. This study, based on the NARUCFCC Separations Manual, determined Elkhart’s costs of providing services handled jointly with Southwestern Bell. Essentially, this is termed the “toll” service and includes both interstate telephone calls and intrastate calls outside Elkhart’s local “exchange” area. The study was used as a basis for dividing the revenue for such “toll” calls between Elkhart and Southwestern Bell. Staff used the factors developed by this study to separate Elkhart’s rate base, revenues, and expenses, into intrastate (both “exchange” and “toll”) and interstate. This resulted in a “Kansas jurisdictional rate base” of $430,569 and net income of $53,920 for the test year. Elkhart was therefore already earning a 12.52 percent overall rate of return on its intrastate rate base. An examination of the company’s capitalization with the adoption of the requested 13 percent return on equity showed that only an 11.31 percent overall rate of return was needed. Thus, for the test year, Elkhart'had intrastate revenues in excess of its requirement. On cross-examination, Yates stated that to his knowledge, the Commission had never before required separation of interstate and intrastate operations for independent telephone companies.
Bob Boaldin, president and manager of Elkhart, testified the company received revenues for its “toll” services under a settlement agreement with Southwestern Bell and that the agreement was based on a toll cost study, apparently the same study referred to by Yates. Under the agreement, Elkhart earns Southwestern Bell’s rate of return (8.4 percent for the test year in question) for such toll service. This is disadvantageous to Elkhart, however, because it has a higher cost of debt than Southwestern Bell and a lower plant investment per station. In rebuttal to Yates’ testimony, Boaldin stated that, although Elkhart agreed there should be a separation of interstate from intrastate operations, such did not affect the request for overall dollar relief. Thus, if separation was required, the company requested a higher overall rate of return and return on equity than had been sought in the original application.
Larry D. Cheeseman, a management consultant hired by Elk-hart, also testified in rebuttal to Yates. He noted that Elkhart’s modified request, if separation was taken into account, was for $67,720 in additional revenues, with a 19.8 percent return on equity and a 14.4 percent overall rate of return. He stated that separation was unfair to Elkhart because it had high interest debt which could not be paid with the return it received under the toll settlement agreement with Southwestern Bell. “Therefore, an adequate return on intrastate service does not provide sufficient income to meet earning requirements established by commercial lending institutions. . . . It is not possible to obtain a loan only on intrastate service; rather the loans are made on a total company basis.”
The Commission adopted the rationale of Yates and denied relief in toto. In doing so, the Commission adopted as a reasonable overall rate of return the existing rate of 12.46 percent disclosed in Staff’s computations. Elkhart filed a timely motion for rehearing which was denied, then filed its application for judicial review with this court.
Elkhart first contends the order requiring separation of its interstate and intrastate operations is unlawful and unreasonable under the statutory standard of K.S.A. 66-118d. It also contends the order results in confiscation of its property without due process of law. Rules governing review by this court under the statutory standards were set forth in Midwest Gas Users Ass'n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380, 595 P.2d 735, rev. denied 226 Kan. 792 (1979). The standard of review under the confiscation argument was addressed in Kansas-Nebraska Natural Gas Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 674, 675, 610 P.2d 121, rev. denied 228 Kan. 806 (1980):
“The statutory standard of K.S.A. 1979 Supp. 66-118d requiring ‘reasonable’ utility rates is higher than the constitutional standard for due process. In other words, a rate cannot be confiscatory if it is reasonable. Therefore, even if the scope of review is broader for a due process complaint, a determination that a rate order is reasonable would logically preclude consideration of an allegation of confiscation. In Power Comm’n v. Hope Gas Co., 320 U.S. 591, 88 L.Ed. 333, 64 S.Ct. 281 (1944), the U.S. Supreme Court said, ‘If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry . . . is at an end.’ Hope, 320 U.S. at 602. The Court also said, ‘Since there are no constitutional requirements more exacting than the standards of the Act, a rate order which conforms to the latter does not run afoul of the former.’ Hope, 320 U.S. at 607. Accordingly, our review is limited to the statutory standard of K.S.A. 1979 Supp. 66-118d.”
The cases establishing the principle of separation were discussed most recently and perhaps most thoroughly in United States v. RCA Alaska Communications, Inc., 597 P.2d 489, 499-506 (Alaska 1978). It was there noted that separation of intrastate and interstate operations has been required by the United States Supreme Court for two related reasons: (1) to avoid jurisdictional conflicts between state and federal regulatory agencies, and (2) to avoid discriminatory rates which result in one class of ratepayers subsidizing another.
The starting point for the first line of cases is Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 148-149, 75 L.Ed. 255, 51 S.Ct. 65 (1930), wherein the court stated:
“The separation of the intrastate and interstate property, revenues and expenses of the Company is important not simply as a theoretical allocation to two branches of the business. It is essential to the appropriate recognition of the competent governmental authority in each field of regulation. . . . But the interstate tolls are the rates applicable to interstate commerce, and neither these interstate rates nor the division of the revenue arising from interstate rates was a matter for the determination either of the Illinois Commission or of the court in dealing with the order of that Commission. The Commission would have had no authority to impose intrastate rates, if as such they would be confiscatory, on the theory that the interstate review of the Company was too small and could be increased to make good the loss. The interstate service of the Illinois Company, as well as that of the American Company, is subject to the jurisdiction of the Interstate Commerce Commission. . . . The proper regulation of rates can be had only by maintaining the limits of state and federal jurisdiction, and this cannot be accomplished unless there are findings of fact underlying the conclusions reached with respect to the exercise of each authority. In view of the questions presented in this case, the validity of the order of the state commission can be suitably tested only by an appropriate determination of the value of the property employed in the intrastate business and of the compensation receivable for the intrastate service under the rates prescribed.”
The RCA Alaska court analyzes the Smith line of cases as follows:
“Some courts have viewed Smith v. Illinois Bell as establishing a strict separations requirement. However, in other utility contexts, the Supreme Court has suggested that some flexibility may be permissible.” 597 P.2d at 502.
See Colorado Interstate Co. v. Comm’n, 324 U.S. 581, 89 L.Ed. 1206, 65 S.Ct. 829 (1945); Lone Star Gas Co. v. Texas, 304 U.S. 224, 82 L.Ed. 1304, 58 S.Ct. 883 (1938); Illinois Commerce Comm’n v. U.S., 292 U.S. 474, 78 L.Ed. 1371, 54 S.Ct. 783 (1934).
“As we read these later cases, the Supreme Court has indicated that the jurisdictional concerns articulated in Smith v. Illinois Bell Telephone are not an absolute bar to considering total company operations in setting rates. This flexibility appears most likely to be invoked when (1) the utility is a highly complex, fully integrated enterprise, (2) the agency avoids evaluating the rates which are not within its jurisdiction, and (3) the agency uses a rational approach to allocating costs, etc. to the regulable side of the business (in the absence of a separations methodology). However, the jurisdiction/preemption thread running through these opinions is supplemented by a separate line of reasoning which provides another basis for requiring a separation — the need to avoid rate discrimination through hidden subsidies of some ratepayers by others.” RCA Alaska, 597 P.2d at 504.
The second line of cases, establishing the rule that one class of consumer may not be required to subsidize another, begins with Smyth v. Ames, 169 U.S. 466, 540-541, 42 L.Ed. 819, 18 S.Ct. 418 (1898), where the court stated:
“If it be found upon investigation that the profits derived by a railroad company from its interstate business alone are sufficient to cover operating expenses on its entire line, and also to meet interest, and justify a liberal dividend upon its stock, may the legislature prescribe rates for domestic business that would bring no reward and be less than the services rendered are reasonably worth? Or, must the rates for such transportation as begins and ends in the State be established with reference solely to the amount of business done by the carrier wholly within such State, to the cost of doing such local business, and to the fair value of the property used in conducting it, without taking into consideration the amount and cost of its interstate business, and the value of the property employed in it? If we do not misapprehend counsel, their argument leads to the conclusion that the State of Nebraska could legally require local freight business to be conducted even at an actual loss, if the company earned on its interstate business enough to give it just compensation in respect of its entire line and all its business, interstate and domestic. We cannot concur in this view. In our judgment, it must be held that the reasonableness or unreasonableness of rates prescribed by a State for the transportation of persons and property wholly within its limits must be determined without reference to the interstate business done by the carrier, or to the profits derived from it.”
In The Minnesota Rate Cases, 230 U.S. 352, 435, 57 L.Ed. 1511, 33 S.Ct. 729 (1913), the court restated the rule:
“Where the business of the carrier is both interstate and intrastate, the question whether a scheme of maximum rates fixed by the State for intrastate transportation affords a fair return, must be determined by considering separately the value of the property employed in the intrastate business and the compensation allowed in that business under the rates prescribed. This was also ruled in the Smyth Case .... The reason, as there stated, is that the State cannot justify unreasonably low rates for domestic transportation, considered alone, upon the ground that the carrier is earning large profits on its interstate business, and, on the other hand, the carrier cannot justify unreasonably high rates on domestic business because only in that way is it able to meet losses on its interstate business.”
The RCA Alaska court summarized this line of cases:
“Several subsequent cases have followed the approach of Smyth v. Ames and the Minnesota Rate Cases. However, other decisions have concluded that separation of intrastate and interstate business is not compelled by the reasoning of these cases or by the jurisdictional limits expressed in Smith v. Illinois Bell Telephone Co. See in particular Capital Transit Co. v. Public Utilities Commission, 93 U.S. App. D.C. 194, 213 F.2d 176 (1954), and State ex rel. Allied Daily Newspapers of Washington v. Washington Public Service Commission, 44 Wash. 2d 1, 265 P.2d 270 (1953).” 597 P.2d at 505-06.
In RCA Alaska itself, the Alaska commission had denied interim rate relief on the ground that total company operations established nonconfiscation regardless of the adequacy of intrastate rates. The Alaska Supreme Court affirmed a trial court’s reversal of the commission, first on the ground that commission regulations required separation of interstate and intrastate operations, and prescribed the NARUC Separations Manual as the method. The court applied the familiar rule that administrative bodies are required to follow their own regulations. Secondly, the court stated:
“[Ajlthough the Supreme Court of the United States had indicated . . . that integrated company operations properly may be used in rate-making under limited conditions, we think the APUC’s position contravenes the Supreme Court’s prohibition on hidden subsidies as expressed in Smith v. Ames and the Minnesota Rate Cases. In the case at bar, the APUC has apparently proceeded on the assumption that in determining whether confiscation has occurred, supplementation of intrastate revenues by interstate revenues is permissible.” 597 P.2d at 506.
As noted, there are cases which have not required separation of intrastate and interstate operations. In Capital Transit Co. v. Public Utilities Com’n, 213 F.2d 176 (D.C. Cir. 1953), cert. denied 348 U.S. 816 (1954), the court upheld a system-wide method of determining rates for an electric company operating in the District of Columbia, Maryland, and Virginia, and interstate. The rates had been determined on the basis of a system-wide rate base, revenues, and expenses. Rate schedules for the District of Columbia were then approved in amounts, which if applied system-wide, would net the required revenues. The court approved this, noting the United States Supreme Court cases discussed in RCA Alaska, and concluded there was no requirement of “any particular segregation formula.” The court went on to state:
“This leaves undetermined, however, the validity of rates actually approved for District consumers. Here the problem which gave rise to the allocation requirement remains even though that formula may not be the only route to its solution. We must be able to say that the rates in the District are reasonable, just and nondiscriminatory as a part of, or in relation to, the system rates contained in the schedules of the Power Company for areas and services beyond the Commission’s jurisdiction; that is to say, that District consumers do not subsidize the non-District, or, indeed, vice versa.” 213 F.2d at 182.
The case was remanded for findings “which give a valid basis for the rates fixed for the District in this context of system-wide rates . . . .” Thus, although Capital Transit is authority for the position that separation of operations may not always be required, it also holds that where separation is not done, nondiscriminatory rates must nonetheless be demonstrated.
In State ex rel. Allied etc. v. W.P.S.C., 44 Wash. 2d 1, 265 P.2d 270 (1953), the question concerned the rates charged by a bus company for the transportation of newspapers. The evidence established that carrying the newspapers was incidental to the bus company’s main business and was done only when adequate space was available. The rate was based on the weight of the papers regardless of distance carried and all records were kept by the newspapers. It was held that a computation of the costs to the bus company of carrying the newspapers was “very impractical.” It was also established that most of the bus company’s business as it related to newspaper carriage was limited to Washington state, although there was some delivery to British Columbia, Oregon, Idaho and Montana. Noting the United States Supreme Court cases discussed above dealing with integrated companies and difficulty of separation, the court held that the utilities commission did not err in considering the entire operation of the bus company.
In the present case, there is no impracticability present in separating interstate from intrastate operations. The NARUCFCC Separations Manual exists and was apparently the basis of the study performed by the independent auditor for Elkhart for toll revenue division, which was in turn used by Staff. In addition, without application of some separation formula, there is no real question but that discrimination between interstate and intrastate rates would result.
Elkhart cites no authority for its position that separation is inappropriate and unreasonable in this case. It contends only that the United States Supreme Court cases cited by the KCC as requiring separation, and discussed above, are distinguishable in that those are cases:
“in which a specific rate of return determination was made by an interstate regulatory body on the one hand, and by an intrastate regulatory body on the other hand, and the Court has held in those cases it is necessary to separate that portion of the utility’s operations attributable to both the intrastate and the interstate portions in order to test the reasonableness or adequacy of the rate of return as to both the interstate and the intrastate jurisdictions. We submit that situation does not apply in the instant case in that the record clearly shows that the toll rates, both intrastate and interstate, paid by the customers of the Elkhart Telephone Company, Inc. are determined without regard to the investment, revenues and expenses of the Elkhart Telephone Company, Inc. The interstate portion of the toll rates is determined in Federal Communications proceedings designed to determine reasonable rates and a fair rate of return to American Telephone and Telegraph Company; whereas, the intrastate toll rates are determined by the Kansas Corporation Commission in Southwestern Bell Telephone Company rate case proceedings. In neither instance is there any concern for the investment in facilities, or the revenues and expenses related to Elkhart Telephone Company’s participation in toll services. ” Emphasis added.
This argument was rejected in General Telephone Company of Florida v. Carter, 115 So.2d 554 (Fla. 1959). That case involved an independent telephone company. The commission had at first considered the overall operations (interstate and intrastate) of the company. Its rationale was essentially that advanced by Elkhart:
“ ‘In our consideration of this case we have come to the conclusion that we must consider the overall operations of the company. If we consider only the exchange operations to the exclusion of the state and interstate toll then the utility’s return will be below the level we have found to be required. If we consider the exchange and the state toll together then the company’s overall return would be in excess of that found to be reasonable. In all fairness to the subscribers and the company we feel that we must base the increase on the system results. In arriving at this opinion we have taken into consideration the fact, too, that there is no method provided whereby the interstate earnings of a telephone company, such as the applicant, can be increased or decreased through regulatory action. Interstate telephone rates are controlled by the Federal Communications Commission through whatever regulation it imposes on the Bell System which in turn dominates interstate telephone service. An independent telephone company can be losing money on its interstate service but there is little if anything it can do about securing authority to increase interstate rates for such service. About its only recourse would be to secure, if possible, an improved toll settlement agreement with the Bell System. By the same token an independent can be earning an excessive return on its interstate business but reducing interstate rates is another matter. Where such a situation exists, which is tantamount to an absence of Federal regulation of the interstate portion of the utility’s business, we feel that it is proper to consider the system operations of the utility in determining proper rates for local service.’ ” 115 So.2d at 557-58.
On reconsideration, the commission reversed itself and limited its consideration to intrastate operations and the Florida Supreme Court affirmed, citing The Minnesota Rate Cases and Smith v. Illinois Bell Tel. Co., and stating:
“Separation is not a theoretical problem of methods but is a necessary recognition of the fact that the Commission’s sphere of authority is basically intrastate in nature. Had the matter rested here this Court would have been forced to quash the Commission’s orders.
“Fortunately for those who support the validity of the instant proceedings the Commission rectified its error and on reconsideration made the requisite separation . . . .”115 So.2d at 559.
A similar argument was also rejected in RCA Alaska:
“Petitioners suggest that the settlement contract is not an interstate rate established by the Federal Communications Commission but rather an agreement negotiated independently between RCAA and AT&T. In our opinion, this argument is irrelevant to the question whether an intrastate separation is required — as it was in Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930). However, the nature of the settlement may be relevant to a determination of what separations methodologies are appropriate.” 597 P.2d at 500, n. 30.
The fact that Elkhart’s toll revenues are derived under the settlement agreement with Bell, which in turn is not based on “investment, revenues and expenses,” is irrelevant to whether separation is required. Otherwise, this fact alone could justify both the KCC exceeding its jurisdictional authority and discriminatory rates. There is no escaping the fact that in this case failure to separate interstate and intrastate operations would result in the local exchange rates subsidizing the interstate rates. The foregoing cases establish that this may not be done. See also Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 10, 565 P.2d 597 (1977). We find no error.
Elkhart next contends the separation in this case, based on a study which in turn was based on the NARUC-FCC Separations Manual, is not supported by the evidence. The record reveals the Commission was made aware of the statement in the manual that it was “not designed to be utilized in determining the cost of individual services within each jurisdiction for ratemaking purposes.” It is argued this renders the manual an insufficient basis for separation of rate base, revenue and expenses. The Commission correctly argues that this language means only “the amounts allocated to the accounts between the interstate and intrastate jurisdictions are not necessarily proper or allowable amounts for regulatory purposes. Each commission must make such decisions ... in its jurisdictional rate case.” Evidence as to a separation under the manual was presented by Yates. This .was substantial evidence. Other courts have held the manual to be a proper method of separating interstate and intrastate operations for rate purposes. State v. Public Service Comm., 131 Mont. 272, 309 P.2d 1035 (1957); Bell Tel. Co. v. Pub. Ser. Comm., 70 Nev. 25, 253 P.2d 602 (1953); Norfolk v. Chesapeake, etc., Tel. Co., 192 Va. 292, 64 S.E.2d 772 (1951). It has also been held that although use of the manual is not error, a commission is not required to use it if some other method can be justified. See Petition of Mountain States Telephone and Tel. Co., 76 Idaho 474, 284 P.2d 681 (1955); Pacific Tel. & Tel. Co. v. Hill, 229 Or. 437, 365 P.2d 1021 (1961). We find no error in the use of the manual in this case.
Elkhart next contends the authorized 12.46 percent overall rate of return and 15.5 percent return on equity were based on “an accountant’s computation” and cannot be evidence of reasonable rates. Such accounting evidence is, of course, used in all rate cases. It is derived from the data submitted by the utility or discovered by Staff during an investigation, and is clearly proper. Elkhart’s real contention is again a challenge to the separation and the fact that its witness testified that a 19.8 percent return on equity was needed. The Commission, however, adopted the evidence of Staff’s witness. The return rates are thus based on substantial evidence. No error is shown.
Finally, Elkart complains of a statement in the Commission’s findings that Elkhart’s position is not static and that increased revenue from a rate increase granted to SWB will impact upon it. It is difficult to discern why this comment is of concern to Elkhart. The statement clearly is not related to the specific findings as to rate of return or separation and appears to be a gratuitous statement directed only at Elkhart’s argument that it can receive no relief from the toll portion of its revenues. Again, no error is shown.
Affirmed.
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Parks, J.:
Defendant Larry Wolf appeals his jury conviction for conspiracy to commit arson.
During the early morning hours of April 17, 1978, a building leased by Wolf as a grocery store was destroyed by fire. When asked on April 24 to take a polygraph examination in connection with the fire, Wolf declined on the advice of his attorney.
Meanwhile, on April 21, 1978, Samuel Phillips was arrested for possession of stolen property. He gave a statement to the Sedgwick County District Attorney’s office regarding the fire and implicating Wolf. Phillips was granted immunity from prosecution on charges relating to the fire and was sent by the district attorney’s office, equipped with a transmitting device, to Wolf’s grocery store on June 10, August 16 and August 22, 1978, to engage Wolf in conversation concerning the fire. On each occasion Phillips’ conversation with Wolf was monitored and recorded on separate cassettes in a sheriff’s van parked nearby. Subsequently, approximately seven to eight minutes of conversation was extracted from the three cassettes and rerecorded on one tape. This tape was admitted at trial, over the objection of defendant, as State’s Exhibit 13.
During the trial Perry Guffey admitted that he started the fire in order to fulfill an agreement that he and his brother, John Guffey, had made with Larry Wolf to burn the store for $5,000. Because John Guffey was not present at the trial, defendant objected to this testimony as hearsay but was overruled. The State’s theory was that Wolf had conspired with John Guffey to burn his store and John had obtained the services of his brother and Samuel Phillips to set the fire. Defendant Wolf’s theory of the fire’s origin was that it was caused by lightning which struck at 1:53 a.m. on April 17, 1978.
The first issue raised on appeal is whether the trial court erred in denying defendant’s motion to suppress tape-recorded statements made by defendant to an undercover agent at a time when the police knew that defendant had retained counsel in regard to the investigation.
The parties stipulated that (1) at the time the monitored conversations were held between Phillips and Wolf, the State was aware that Wolf was represented by an attorney; (2) the State knew that Carl Jones, a Wichita Fire Department investigator, had asked Wolf to take a polygraph examination and that he had declined on advice of his attorney; (3) that Samuel Phillips was working as an agent of the State of Kansas and that such agency was not known to Wolf; and (4) that no arrest of Wolf was made prior to charges being filed on October 9, 1978.
Wolf argues that his right to counsel under the Fifth and Sixth Amendments was violated because, although he had not been charged, he had become the “focus” of the investigation and the authorities knew he had retained counsel regarding the investigation. His argument is based primarily on Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758 (1964) and Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964).
Escobedo held that an accused’s Sixth Amendment right to counsel is violated when, prior to indictment and with the investigation focusing on him, he is taken into custody, interrogated, and denied an opportunity to consult with his lawyer despite a request to do so. Massiah held that the Sixth Amendment is violated when, after indictment, the police deliberately elicit incriminating statements from an accused in the absence of his lawyer through the surreptitious interrogation of an undercover agent. See also State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976). However, Escobedo was subsequently limited to its facts and the Supreme Court has reaffirmed the rule that the Sixth Amendment right to counsel attaches only “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 32 L.Ed.2d 411, 92 S.Ct. 1877 (1972) (plurality opinion).
It was against this background that the precise arguments urged by the defendant in the present case were rejected in United States v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1973), cert. denied 415 U.S. 989 (1974). In Lemonakis, police were investigating a series of burglaries. One of the admitted participants, Scouloukas, surrendered himself to the authorities and sought immunity, which was granted. Thereafter he initiated conversations with the other participants, Enten and Lemonakis. Some of the conversations were surreptitiously recorded after the police knew that Enten and Lemonakis had secured counsel. Like Wolf, Enten and Lemonakis were not indicted until after the conversations were recorded. Citing Escobedo and Massiah, the court held that the Sixth Amendment does not forbid the securing of admissions by undercover tactics prior to arrest or indictment and that the right to counsel prior to arrest or indictment extends only to custodial interrogations. The court went on to state that insofar as the Fifth Amendment privilege against self-incrimination included a right to counsel it applied only to custodial interrogations.
We concur with this interpretation of the Fifth and Sixth Amendments and conclude that the U. S. Constitution does not prohibit the use of noncustodial statements made by a defendant and recorded by an undercover agent at a time when the police knew defendant had retained counsel in regard to the investigation.
The Lemonakis court also rejected an argument that such preindictment electronic surveillance violates the Code of Professional Responsibility, an argument indirectly made by defendant in the present case. In finding no violation of the provision prohibiting an attorney from communicating or causing another to communicate with a party he knows to be represented by a lawyer about the subject matter of the representation, DR 7-104, 228 Kan. cxv., the court stated in part:
“Here, in the investigatory stage of the case, the contours of the ‘subject matter of the representation’ by appellants’ attorneys, concerning which the code bars ‘communication,’ were less certain and thus even less susceptible to the damage of ‘artful’ legal questions the Code provisions appear designed in part to avoid. Finally, we cannot say that at this stage of the Government’s investigation of a criminal matter, the public interest does not — as opposed to the different interests involved in civil matters — permit advantage to be legally and ethically taken of a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. We find there was no ethical breach by the U.S. Attorneys prosecuting the case . . . .” 485 F.2d at 956. (Citations omitted.)
There is an exception in DR 7-104(A)(l) where an attorney may communicate with one of adverse interest when authorized by law to do so. In most instances the district attorney may confer with individuals concerning criminal investigations. We find no error based on the facts of this case.
Wolf also argues that even if the surveillance conducted in the present case does not violate the federal Constitution, Kansas is free to determine that the state constitution has been violated. He relies on the New York rule that once an accused is charged and represented by counsel he may not be questioned, in the absence of counsel, on an unrelated charge. See e.g., People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 (1981). Kansas has not adopted this rule but has held that undercover agents posing as cell mates may elicit incriminating statements from indicted persons on unrelated crimes. State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978). Therefore, we cannot analogize to the New York rule but conclude that our state constitution was not violated by the use of the statements which were made during a noncustodial interrogation.
Defendant Wolf next complains that the trial court erred in admitting State’s Exhibit 13, the redacted tape recording of the conversation between defendant and the undercover agent. Wolf contends that the edited tape was not admissible in the first instance because the court failed to find that either the initial tapes from which Exhibit 13 was compiled or the redaction process used in compiling it were trustworthy. State v. Treadwell, 223 Kan. 577, 575 P.2d 550 (1978). The record discloses that Samuel Phillips and Lt. Phipps, the police officer who monitored and taped the conversations, both testified concerning the accuracy of the original tapes. In addition, Phipps and Mike Nichols, an electronics expert who worked on rerecording and editing the tapes, testified concerning the length of the original recordings and the redaction process. In light of this testimony, the trial court’s admission of the exhibit must be viewed as including an implied finding of trustworthiness.
Wolf also argues that the tape was irrelevant evidence and therefore inadmissible because the redaction process rendered it misleading and “impossible to relate ... to anything.” Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(¿). The taped conversation included references to the parties alleged to be part of the conspiracy with Wolf and the payment of money to them. Any ambiguities in the meaning of the conversation related to the weight to be given the remarks rather than their admissibility. We conclude that the edited tape was not so confusing as to be irrelevant.
Wolf further argues that Exhibit 13 was not relevant because a part of the tape included a discussion between defendant and the informant concerning two other fires which occurred at about the same time as the fire in question. The record reveals that these fires had already been discussed by witnesses at the trial, thus no prejudice to defendant is shown by the admission of this evidence.
Finally, Wolf argues that Exhibit 13 was objectionable because it contained post-conspiratorial hearsay statements of John Guffey. However, the transcript of Exhibit 13 indicates that statements attributed to John were either related by Wolf himself, or were not offered to prove the truth of the matter stated and therefore were not hearsay. Thus, this argument is also without merit.
We conclude that the trial court did not err in admitting State’s Exhibit 13.
After the redacted tape had been admitted and played for the jury, Perry Guffey testified that in the last week of March or the first week of April 1978, he met with his brother, John, at a garage on South Seneca in Wichita. Wolf complains that it was error to admit the following hearsay statement because John was neither present nor available as a witness at trial:
“Q. And tell us what that conversation was, please?
A. He asked me if I wanted to contract to burn a store down, and I said yes, and we agreed on the price.
Q. Which was?
A. Five thousand dollars, and he gave me some money then, and gave me a key to the building, told me to get a key made, and get the original back to him, because he had to give it back to Larry pretty quick.”
This statement was admitted under K.S.A. 60-460(i), which provides:
“As against a party, a statement which would be admissible if made by the declarant at the hearing if (1) the statement concerned a matter within the scope of an agency or employment of the declarant for the party and was made before the termination of such relationship, or (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination, or (3) one of the issues between the party and the proponent of the evidence of the statement is a legal liability of the declarant, and the statement tends to establish that liability; . . .” (Emphasis supplied.)
Our Supreme Court recently interpreted subsection two of this provision in State v. Rider, Edens & Lemons, 229 Kan. 394, 404, 625 P.2d 425 (1981), and State v. Roberts, 223 Kan. 49, 60, 574 P.2d 164 (1977). The Court said:
“K.S.A. 60-460(i) addresses a third party situation. Its requirements apply when the party (defendant) and the declarant (coconspirator) are participating in a plan to commit a crime and a third person (witness) is later called to testify as to the coconspirator’s statements made outside the presence of the defendant concerning the conspiracy for the purpose of establishing defendant’s participation in the conspiracy and crime. As previously pointed out the theory of admissibility is that each .party to the conspiracy becomes an agent for the others. Therefore as an agent his statements to a third person bind not only himself but the others for whom he is acting. Under this theory of admissibility the conspiracy out of which the agency arises must be proven before the third party may testify against a coconspirator as to the declarant’s statements made in the absence of the defendant-coconspirator.” (Emphasis supplied.)
Rules governing conspiracy were recently stated in State v. Small, 5 Kan. App. 2d 760, Syl. ¶ ¶ 1-3, 625 P.2d 1, rev. denied 229 Kan. 671 (1981). The Court said:
“Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.”
“To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances.”
“While an agreement is a necessary element of a conspiracy, the existence of the agreement need not be proved directly but may be inferred from other facts proved. If one concurs in a conspiracy, no proof of an agreement to concur is necessary to establish his guilt.”
An examination of the record in this case reveals that prior to the time the statement of John Guffey was admitted there was evidence from the redacted tape that Wolf had stated that he “was dealing through John.” Samuel Phillips had testified that Wolf told Perry Guffey that “John’s got the money and everything you need” and there was earlier testimony by Perry Guffey that he received the key to let himself into the store from John Guffey. Inasmuch as sufficient evidence of a conspiracy was presented before the statement of John Guffey was admitted, we conclude that the trial court properly admitted John’s statement under K.S.A. 60-460(0.
Next, defendant claims that the State failed to establish a conspiracy to commit arson between the dates charged by the State in the bill of particulars. The bill of particulars alleged that the conspiracy was formed between March 1 and April 8 of 1978, and that the arson of Mr. Larry’s Inc. occurred between 11:30 p.m. April 16, 1978 and 2:25 a.m. April 17, 1978. The testimony indicated that it was mid to late March when Perry Guffey and Samuel Phillips agreed to participate in the plan and that the first attempts were made in furtherance of the conspiracy in early April. We are convinced that there was sufficient evidence from which an impartial factfinder could have found the defendant guilty beyond a reasonable doubt as alleged in the bill of particulars. State v. Everson, 229 Kan. 540, 626 P.2d 1189 (1981).
Finally, defendant maintains that the trial court erred when it granted a motion for a new trial as to the arson count but denied the motion as to the conspiracy count. The court granted the motion on the basis of newly discovered evidence consisting of fire department records showing the time the fire department received the alarm of the fire at Wolf’s store and when it arrived at the scene. There had been testimony that the fire department arrived at 2:00 a.m. but the records discovered after trial revealed that the fire department had in fact arrived at 2:28 a.m. Since defendant had theorized that lightning which struck in the vicinity of the store at approximately 1:53 a.m. had caused the fire, the timing of the blaze was critical to defendant’s defense to the arson. Moreover, the jury’s questions during deliberation showed their concern for the time element of the fire and that this concern related to reasonable doubt as to the cause of the fire. For this reason the trial court granted a new trial on the arson count.
Defendant contends that a new trial should have been granted on the conspiracy count was well because the newly discovered evidence bore on the credibility of one of the State’s prime witnesses and because the failure to reveal the records before trial breached the prosecutor’s duty to turn over exculpatory material under Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963).
A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Andrews, 228 Kan. 368, 376, 614 P.2d 447 (1980). Here the time element in regard to the fire department’s response does not affect the proof of a conspiracy to commit arson except that it would weigh against the credibility of Perry Guffey, who testified that he had started the fire. However, a new trial is not granted on the basis of newly discovered evidence which tends merely to impeach or discredit the testimony of a witness. State v. Foy, 224 Kan. 558, 569, 582 P.2d 281 (1978).
Defendant’s argument regarding the State’s failure to turn over the new evidence at an earlier date is similarly uncompelling. The newly discovered fire department records turned up under very unusual circumstances after both State and defense attorneys had diligently searched the fire department files. There was no bad faith exhibited by the prosecutor and he did not knowingly withhold the records; therefore, the following “oversight” rules must be applied:
“When the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, the defendant should be granted a new trial only if the record establishes: (1) that evidence was withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial to the defendant.” State v. Kelly, 216 Kan. 31, 36, 531 P.2d 60 (1975).
Evidence materially affecting the credibility of a key prosecution witness may be termed exculpatory. Kelly, 216 Kan. at 36-37. However, the suppression or withholding of mere cumulative evidence is not violative of the rule; the evidence must be sufficiently material on the ultimate question of guilt or innocence to have played a determinative role in the outcome of the trial. State v. Hombeak, 221 Kan. 397, 403, 559 P.2d 385 (1977).
There was sufficient evidence in this case of a conspiracy between defendant and the Guffey brothers to burn defendant’s store even absent Perry’s testimony. The testimony of Samuel Phillips and the admissions recorded in Exhibit 13 revealed both a plan to commit arson and the steps taken in furtherance of that plan. Furthermore, while the evidence bearing on the timing of the fire may have raised doubts about Perry’s credibility, that credibility had already been extensively questioned on cross-examination in connection with his criminal record and motivation for testifying.
We conclude that the evidence included in the fire department records was not so material to the conspiracy conviction as to require a new trial.
Affirmed.
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Meyer, J.:
This is an appeal from a summary judgment for plaintiffs (appellees), quieting title to real property in favor of appellees, as takers under a will, as against defendants (appellants), who claimed the subject real estate as beneficiaries under a purported trust.
Charles Pizel was a lifelong resident of Sherman County, Kansas; he died in that county on April 24, 1979. He was never married and had no children; his only heirs at law were nephews and nieces. At his death, Charles Pizel had accumulated a size-able estate.
Charles Pizel evidently undertook to plan his estate, at least partially, in the spring of 1962, with the advice and assistance of Eugene P. Zuspann, an attorney in Goodland, Kansas. On May 23, 1962, Charles Pizel executed a document entitled “Charles Pizel Revocable Trust.” That document provided that Charles Pizel was the settlor; the trustees were Charles Pizel, Wilfred J. Pizel and Allen D. Pizel. Wilfred J. Pizel and Allen D. Pizel were nephews of Charles Pizel. It purported to establish a trust — the res being 1,760 acres of real property in Sherman County, Kansas.
Also, on that same day, May 23, 1962, Charles Pizel executed a deed wherein the 1,760 acres of real estate described above were listed, and this deed purported to convey to Charles Pizel, Wilfred J. Pizel, and Allen D. Pizel as trustees of the “Charles Pizel Revocable Trust,” as grantees, from Charles Pizel, a single person, as grantor and settlor of the “Charles Pizel Revocable Trust.” The said deed and trust agreement remained in the hands of the attorneys representing the said Charles Pizel until the date of his death; neither were filed with the local register of deeds until after Charles Pizel’s death.
On May 23, 1962, Charles Pizel also executed his Last Will and Testament. Under Article V of this will, he devised and bequeathed all his personal property and realty not otherwise disposed of in the will to all of his nieces and nephews, except Wilfred J. Pizel and Allen D. Pizel, who had received certain personal property under other articles in the will. Charles Pizel, at the time of making the will and codicil, owned no real estate other than the 1,760 acres described in the trust instrument; the trust is neither mentioned nor referred to in the will.
On June 10, 1975, Charles Pizel signed a document along with Wilfred J. Pizel, Allen D. Pizel and Herbert Pizel entitled “First Amendment to the Charles Pizel Revocable Trust.” That document basically provided that Herbert Pizel should be added as a trustee, along with Allen D. Pizell and Wilfred J. Pizel. In effect, the said Charles Pizel removed himself as a trustee and appointed Herbert Pizel in his stead as trustee by this 1975 amendment. In other words, according to the document, Charles Pizel was to be a beneficiary only and was no longer to be a trustee in any manner. There were no other basic changes from the original trust agreement except those changes necessary to include Herbert, and except that upon the death of Charles Pizel, the amended trust provided for a separation into three separate trusts.
On that same day, Charles Pizel executed a new deed containing the same 1,760 acres described in the trust instrument, which purported to convey the said real estate to “Wilfred J. Pizel, Allen D. Pizel, and Herbert Pizel, Trustees of the ‘Charles Pizel Revocable Trust’.” This deed was signed by Charles Pizel, individually as grantor, but was not signed by Allen D. Pizel and Wilfred J. Pizel (two of the original trustees). This deed and the “First Amendment to the Charles Pizel Revocable Trust” were likewise placed with the attorneys for Charles Pizel; neither was filed with the register of deeds prior to the death of Charles Pizel.
On January 11, 1979, Charles Pizel executed a “Codicil” to his Last Will and Testament. Slight changes were made by the codicil, as follows:
(a) Article III referred to a quarter of land which Charles Pizel had originally devised to H. L. Pizel, and acknowledged the fact that he had now deeded it.
(b) Article IV was amended to include Herbert Pizel, a/k/a H. L. Pizel, as a legatee to receive livestock and farm machinery.
(c) Article IV was also amended to make provisions about antique machinery owned by the said Charles Pizel.
The decedent, in his codicil, stated: “. . . I do hereby republish, ratify and reaffirm my said Last Will and Testament in all respects as modified by this Codicil . . . .” Therefore, the residuary clause of the will was not altered.
At all times after May 23, 1962, Charles Pizel continued to operate his farming business on the 1,760 acres involved as an individual. He also executed several oil and gas leases relating to the subject property, signing each as an individual. At no time was any business conducted by him or on his behalf as repre sentative of a trust. The deposition testimony of each of the three nephews named as trustees indicated that none of them acted in any capacity as a trustee prior to the death of Charles Pizel. Each also expressed his belief that Charles Pizel intended that no trust exist prior to his death.
Soon after the death of Charles Pizel, his attorney filed the original trust instrument and deed, and the amendment to the trust, with the Register of Deeds of Sherman County, Kansas. This was the first official recording of any of these documents.
Thereafter, appellees filed their petition in the District Court of Sherman County, alleging that no trust, in fact, existed at the time of the death of Charles Pizel, and that a subsequent recording of documents by a decedent’s attorney would not cause a trust to spring into being. They declared that the subject real estate therefore passed to them as devisees under the will. As such, the recorded documents put a cloud on appellees’ title, and they therefore prayed the court to quiet title in them and to order removal of said recordings.
After extensive discovery by way of depositions, each side filed a motion for summary judgment, supported by briefs; both sides at that time indicated that they felt the case was ripe for summary judgment. The district court granted appellees’ motion for summary judgment, denied appellants’ motion for same, and ordered title quieted in appellees. From this decision, appellants bring this appeal.
The first issue is whether summary judgment was proper in this case. K.S.A. 60-256(c) provides:
“The judgment sought shall be rendered forthwith 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 a judgment as a matter of law.”
Both parties moved for summary judgment. In their supporting briefs, both parties set forth factual statements which were substantially identical; the depositions of various parties provided corroboration and support for these statements. The appellants, in their brief before the trial court, went so far as to expressly state:
“In comparing the facts as sent [sic] out in Plaintiffs’ [appellees] Brief in Support of Summary Judgment and the facts stated above by the defendants [appellants] are in agreement. This is a matter which is ripe for summary judgment. It is a question of law as to whether or not there was a valid trust.”
Appellants now claim that certain factual issues did exist, and that summary judgment was therefore not proper.
The mere fact that both parties to a lawsuit move for summary judgment does not, in and of itself, compel the court to grant summary judgment. If material questions of fact actually remain in dispute, summary judgment must not be granted. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 624 P.2d 971 (1981).
Reviewing the record, we conclude that the parties did agree on the factual background of this case. No material issues of fact are raised when all the pleadings and depositions are viewed together. The case was ripe for summary judgment and the court properly entertained the motions therefor.
The second issue is whether, under the undisputed facts, the appellees were entitled to judgment as a matter of law, or stated another way, whether the trust was valid and in effect at the time of Charles Pizel’s death. Eecause the facts are undisputed and the evidence is documentary in character, the appellate court may determine the legal effect of such facts for itself, much as it would in an original action. Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, Syl. ¶ 5, 492 P.2d 147 (1971), cert. denied 406 U.S. 967 (1972).
The case of Shumway v. Shumway, 141 Kan. 835, 44 P.2d 247 (1935), contains excellent authority regarding the requisites for a valid inter vivos trust, and has been followed consistently by later decisions. In the case of Jennings v. Jennings, 211 Kan. 515, 507 P.2d 241 (1973), the court reaffirmed the law of Shumway:
“An express trust implies the cooperation of three persons: (1) A settlor, or a person who creates or establishes a trust; (2) a trustee, or person who takes and holds legal title to the trust property for the benefit of another; and (3) a cestui que trust, or the person for whose benefit a trust is created.” 211 Kan. 515, Syl. ¶ 3.
Shumway also enunciated the essential elements of an express trust. This enunciation was reaffirmed in the case of In re Estate of Ingram, 212 Kan. 218, 510 P.2d 597 (1973):
“The essential elements of an express trust are (1) an explicit declaration and intention to create a trust, (2) definite property or subject matter of the trust, and (3) the acceptance and handling of the subject matter by the trustee as a trust.” 212 Kan. 218, Syl. ¶ 4.
In his memorandum opinion, the trial judge concluded as a matter of law that the purported trust here failed to meet any of the three aforementioned requirements for validity. Based on these conclusions, the judge determined that this trust was intended by Charles Pizel to take effect only upon his death; this would mean that the statute relating to testamentary dispositions would apply. Because the trust documents were not executed with all the formalities required by that statute, they were not a valid testamentary disposition and were therefore of no effect. The subject property would therefore pass to appellees as takers under the will.
Appellants challenge these conclusions as to all three requirements for a trust. Because these requirements must all be met, the judgment was correct so long as the trial court’s conclusion as to any one or more of them is correct. Each requirement will be discussed individually and the judge’s conclusions thereon will be addressed in the same manner.
The first requirement is the explicit declaration and intent to create a present trust; a mere declaration of intent to create a trust at some future time is not sufficient. The judge concluded from all the facts and circumstances that Charles Pizel had no intention to create a trust during his lifetime. Appellants argue that the trust instrument itself states an intention to create a present trust, and because the language used is unambiguous, the parol evidence rule excludes extrinsic evidence of intent.
Appellants cite State Bank of Parsons v. First National Bank in Wichita, 210 Kan. 647, 504 P.2d 156 (1972); and In re Estate of Hauck, 170 Kan. 116, 223 P.2d 707 (1950), where no construction of a trust’s provisions was allowed because the intent of the settlor was expressed without ambiguity.
These cases can be distinguished from the case at bar, for in each of them the trust provisions under scrutiny were provisions, relating to the administration of the trust, and the issues raised involved the intention of the settlor regarding the powers and duties of the named trustees, not the settlor’s ultimate intention to create a present trust in the first instance. This “trust intent” must exist and “the expression of what purports to be a trust intent will not give rise to a trust unless that intent actually existed.” Shumway, 141 Kan. at 841 (citing 1 Bogert on Trusts and Trustees, p. 195).
The issue of trust intent cannot be resolved solely from a self-serving declaration in the trust instrument, but instead must be viewed and decided in light of all the attending facts and circumstances in the case.
In this case, several facts militate against a finding of present trust intent on the part of the grantor. At all times Charles Pizel operated the farming concern on the subject realty in his own name. He retained all income therefrom, and filed tax returns as an individual; no tax return was ever filed in the name of the trust. Also, neither the trust instrument nor the deeds were ever recorded prior to Charles Pizel’s death.
Additionally, no business of any kind was ever conducted in the name of the trust by Charles Pizel or anyone else. In fact, Charles Pizel treated this property as his own in all his dealings with or related to it. For example, on October 19, 1976, Charles Pizel executed and delivered several oil and gas leases involving the subject realty. In none of these leases is any mention made of the trust, and Charles Pizel was the sole grantor in said instruments.
The trial court here felt that these surrounding circumstances indicated a lack of trust intent which negated the expressions of present intent in the trust instrument; the court therefore concluded that no present trust intent existed at the time the trust instrument was executed.
We agree with the conclusion of the trial court. The issue of trust intent should be affected by facts and circumstances relating to the other two requirements — the delivery of property into the hands of trustees to hold the property and deal with it as trustees for the benefit of other persons. But there are reasons, other than this, which cause the trial court’s judgment to be correct.
The second requirement for a valid trust is that there must be a present transfer to the trustee of the property that is the subject matter of the trust. In this case, Charles Pizel executed the first deed to himself and his two nephews, as trustees. This deed was left with the attorney for Charles Pizel to be filed of record after his death, as was a second deed wherein the grantees were three nephews of Charles Pizel. Charles Pizel retained at all times the right to demand the return of the deeds to himself. This is made clear from the affidavit of Charles Pizel’s attorney. From these facts, the trial court concluded that there had not been a “delivery of the deeds purporting to transfer the property to the trustees,” or, as stated by the court in Shumway, 141 Kan. at 837, “an actual conveyance or transfer of lawful, definite property . . . .” (citing from 65 C.J. 231).
Appellants first state that whether there has been a valid delivery is generally a question of the grantor’s intent; this rule is particularly applicable where constructive delivery is relied upon, as it is here. To be effective, the grantor must indicate by words or acts his intention to immediately divest himself of title, and to vest it in another. Agrelius v. Mohesky, 208 Kan. 790, Syl. ¶¶ 7, 8, 494 P.2d 1095 (1972). Appellants assert that the problem of delivery, being a question of intent, should have been left to the jury, and that the court on motion for summary judgment should not have decided the “delivery” question. They are incorrect in this assertion.
“The question of the delivery of a deed is largely a question of intention, ordinarily to be determined by the jury ... as a question of fact, but when the facts are not controverted the question should be determined by the court as a question of law . . . .” Hoard v. Jones, 119 Kan. 138, Syl. ¶ 9, 237 Pac. 888 (1925).
Appellants also argue that the judge’s conclusion of law from the undisputed facts was incorrect. They cite several cases which they say stand for the proposition that delivery of a deed to a third person to hold until the grantor’s death, at which time delivery to the grantee is completed, is sufficient delivery, notwithstanding the fact that the grantor remains in possession of and continues to derive income from the subject property until his death. They argue that this rule should prevail in this case.
The cases cited by appellants do indeed state the general rule to be applied. This rule, however, differs from appellants’ statement of it. In all the cases cited the court determined that the grantor had relinquished all right to custody or control of the deed; it was this manifest intention to make a present and irrevocable transfer of title which was considered by the court to be the controlling fact which validated the constructive delivery. It was held that in such cases, title passed immediately even though possession and enjoyment were postponed until the grantor’s death.
“Where the grantor in a deed deposits it with a third person, to receive and hold the same for delivery to the grantee after the death of the grantor, with a declared or manifest intention to place it beyond the custody and control of grantor and thereby to give it effect as a present conveyance, it is a sufficient delivery, and in such a case title is deemed to vest at once in the grantee with only the enjoyment of the property being postponed (following In re Estate of Hulteen, 170 Kan. 515, 227 P.2d 112).” Yaple v. Morris, 194 Kan. 149, Syl. ¶ 1, 398 P.2d 320 (1965).
See also In re Estate of Loper, 189 Kan. 205, Syl. ¶ 1, 368 P.2d 39 (1962); and Hicklin v. DeVore, 179 Kan. 345, Syl., 295 P.2d 668 (1956).
In the case at bar it was admitted by appellants that the deed was placed with Charles Pizel’s attorney for the sole reason that Charles Pizel might later wish to revoke the transfer and reclaim the deed. Such an admission is not reconcilable with an assertion that Charles Pizel had relinquished all right to control and custody of the deed by delivering it to his attorney. Furthermore, Charles Pizel in fact demanded and accepted a return of the original deed from his attorney, substituting a different deed in its place. For these reasons, we also agree with the conclusions of the trial court regarding the insufficiency of delivery in this case.
The final requirement for a valid inter vivos trust is that the named trustee must accept the trust property and deal with it as a trustee, for the benefit of others. The trial judge concluded from the facts that this requirement had never been fulfilled. Appellants challenge that conclusion.
The record contains undisputed evidence that at no time after execution of the trust instrument did any of the named trustees, other than the settlor himself, Charles Pizel, deal with the realty in any capacity. Prior to his death, Charles Pizel continued to occupy and operate the subject realty as an individual, for his own benefit; he never conducted any business in the name of the trust nor as trustee thereof. Even after the amendment to the trust, which removed Charles as a named trustee and placed his nephew Herbert Pizel in his stead, Charles still managed the property personally and in his own name. The testimony of the nephew-trustees clearly indicates that none of them ever did any act as trustee under this trust. Additionally, their testimony relates the fact that Charles Pizel had told them that it was his intention that their duties as trustees would not arise until after his death. While this last testimony applies to the issue of present trust intent as discussed earlier, it also clearly shows that no named trustee ever dealt with this property as a trust.
Appellants argue that because Charles Pizel was himself a trustee, at least for a time, the fact that the other named trustees were not active in managing the trust is not important. They cite Rathbun v. Hill, 187 Kan. 130, 354 P.2d 338 (1960), wherein a trust with two named trustees was upheld even though only one of these trustees ever actually performed trust duties. They assert that the case at bar and Rathbun are similar.
On the contrary, the instant case can be distinguished from Rathbun on two grounds. First, in Rathbun, the two trustees were sons of the settlor; the settlor himself was not a trustee. Second, the one son-trustee in Rathbun did perform acts which amounted to acceptance of the position of trustee, and he acted in the name of the trust, not as an individual. In the case at bar, no person has ever dealt with the property in the name of the trust and the only person to deal with the property at all, Charles Pizel, continued to deal with it as an individual even after he had removed himself as a trustee. The case cited by appellants does not support their argument. The conclusion of the trial court on this issue was also correct.
The judgment of the trial court was correct in all respects.
Affirmed.
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Vickers, J.:
This appeal involves two consolidated cases, K-66804 and K-66805. Both defendants-appellants, Charles J. Schlein and Robert W. Burgoon, appeal their convictions of one count each of gambling in violation of K.S.A. 21-4303(b). Schlein contends the trial court erred in denying his motion for judgment of acquittal because the State failed to prove he had entered a gambling place and contends the trial court erred in refusing his proposed jury instruction defining a gambling place. Burgoon likewise contends the State failed to prove he had entered a gambling place.
The facts herein are as follows:
James Carmack, special agent with the Kansas Bureau of Investigation (KBI), discovered a flier at the Woodlands racetrack advertising a marathon poker tournament. The flier included a map showing the location of the tournament.
On March 8, 1991, KBI agents and Overland Park police officers investigated the alleged marathon poker tournament being held at a residential address in Johnson County, Kansas. When police detective John Jackson, wired with a transmitter and working undercover, arrived at the residence, he asked the suspected tournament organizer if he might participate in the tournament.
Jackson paid the man an entry fee, then he was escorted next door to the adjoining half of a two-story duplex. The suspected organizer (lessee) had leased both premises, but only occupied one residence with his family. Jackson walked through the lower level, going from room to room, and observed only a table and chairs in the dining room, and a sofa and television in the living room.
Approximately eight men were already in the home when Jackson arrived. Jackson watched other individuals arrive who also paid the entry fee. Eventually, 22 people had assembled to play poker, including Jackson.
While waiting for the tournament to begin, Jackson read information supplied by the lessee that explained entry fees, a breakdown of how the money would be paid to the winners, what poker games were going to be played, how much betting would be allowed in each round, the times the players would be playing, break times, and rules of the tournament.
The lessee gathered the players together, made sure everyone understood the rules, and assigned each player a number that corresponded to a chair on the second floor in which the player would be seated. The players then went upstairs.
Green-topped card tables had been placed in each of the three upstairs rooms. At each card table were chairs with numbers on them. Around the green top portion of each card table was an area for the players’ drinks and poker chips. Red, white, and blue poker chips and playing cards were on each table. No other furnishings were in the rooms.
Jackson located his assigned chair in one of the rooms, then began playing various poker games with other players using the poker chips to bet. Jackson left his chair twice, looked into the other two rooms, and saw other individuals, including Schlein, playing poker. At approximately midnight, Jackson signaled the other police officers and KBI agents to enter the home. The officers and agents entered the home and arrested the tournament players. Each player was interviewed and photographed, then some were allowed to leave. The KBI agents seized several gambling-related items including four card tables, a number of stacking chairs, numerous boxes of poker chips, playing cards, $1,777 in cash, a tournament survey sheet, tournament rules and information sheets, and a trophy etched with prior winners’ names dating back to 1987 and “St. Patrick’s Day Marathon Poker Championship. ”
Complaints were filed against Schlein and Burgoon alleging each had engaged in gambling in violation of K.S.A. 21-4303(b) and the case against Schlein proceeded to jury trial. Jackson testified that at one time he patrolled the area of Overland Park in which the residence is located, but he had never heard of gambling taking place on the premises before the night the tournament began. Jackson stated that to his knowledge the property had.never been used previously for gambling purposes. Carmack testified he did not know whether the residence had ever been used for gambling prior to the poker tournament, and to his knowledge the premises were used for gambling only on this one occasion.
At the close of the State’s case in chief, Schlein moved the trial court for an order of judgment of acquittal. In sum, Schlein contended the State had not proven he had entered and remained in' a gambling place for the purpose of making a bet. Schlein argued the State had not shown the principal use of the residence was for gambling. The trial court denied Schlein’s motion.
During the jury instruction conference, Schlein objected to the trial court’s instruction on the elements of the crime of gambling and requested his proposed instruction be given. The trial court overruled Schlein’s objection.
After deliberations, the jury found Schlein guilty as charged.
In the meantime, Burgoon entered into a stipulation with the State concerning the gambling charge to be offered to the trial court for a determination of Burgoon’s guilt or innocence. Based upon the stipulation, the trial court found Burgoon guilty as charged.
Schlein and Burgoon each were sentenced to serve 30 days in the Johnson County Adult Detention Center and fined $150. Both timely appealed.
The first issue to be addressed herein is whether the trial court erred in denying Schlein s motion for judgment of acquittal because the State did not prove he had entered a gambling place.
Schlein contends the State failed to prove the residence was a gambling place. Schlein argues no evidence was presented that the residence had a reputation as a gambling place or that it was frequently visited by persons known to be commercial gamblers. Schlein asserts K.S.A. 21-4303(b) contemplates something more than one evening of poker at a residence before the statute is violated.
The State contends K.S.A. 21-4302(5), which defines a gambling place, is quite, broad in scope and is not delimited by requirements of time. The State asserts any place at any time may qualify as a gambling place if it is being used for the purposes described in K.S.A. 21-4302(5). The State argues the residence was vacant and being used solely for the purpose of housing an elaborately organized marathon poker tournament, which the State contends is more than sufficient evidence to show the residence was a gambling place.
“In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and the case must go to the jury. [Citation omitted.] On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty beyond a reasonable doubt. [Citation omitted.]” State v. Crichton, 13 Kan. App. 2d 213, 218-19, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989).
The question presented by Schlein involves interpretation of K.S.A. 21-4302(5) to determine what evidence is required to prove an establishment is a gambling place, an issue which has not yet been addressed by our appellate courts. “Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 1, 829 P.2d 561 (1992). “Penal statutes must be strictly construed in favor of the persons sought to be subject to them.” State v. Thompson, 237 Kan. 562, 566, 701 P.2d 694 (1985).
Pursuant to K.S.A. 21-4303(b) gambling is defined as: “Entering or remaining in a gambling place with intent to make a bet, to participate in a lottery, or to play a gambling device.”
The definition of a gambling place is found in K.S.A. 21-4302(5):
“A ‘gambling place’ is any place, room, building, vehicle, tent or location which is used for any of the following: Making and settling bets; receiving, holding, recording or forwarding bets or offers to bet; conducting lotteries; or playing gambling devices. Evidence that the place has a general reputation as a gambling place or that, at or about the time in question, it was frequently visited by persons known to be commercial gamblers or known as frequenters of gambling places is admissible on the issue of whether it is a gambling place.”
The Judicial Council notes following K.S.A. 21-4303 provide:
“Under subsection (b) it must be proved that (1) the offender entered or remained in a gambling place, i.e., a structure, one of whose principal uses is for making and settling bets, receiving, holding, recording or forwarding bets or offers to bet, conduct lotteries, or playing gambling devices [21-4302(5)] and (2) that the offender had an intent to make a bargain which is a bet under 21-4302(1) or to participate in an enterprise which is a lottery under 21-4302(2) or to play a contrivance which is a gambling device under 21-4302(4).” (Emphasis supplied.)
Although the notes and comments of the Kansas Judicial Council do not have the force and effect of law and are advisory only, they may be one indication of legislative intent. State v. Noah, 246 Kan. 291, Syl. ¶ 3, 788 P.2d 257 (1990). It should be noted the Judicial Council notes following K.S.A. 21-4305 and K.S.A. 21-4308 also refer to a gambling place as a place or structure, one of whose principal uses is for making and settling bets.
The Judicial Council notes following K.S.A. 21-4302 state the statutes of Wisconsin, New Mexico, and Colorado were consulted in preparing that section, K.S.A. 21-4303, and certain other Kansas criminal statutes relevant to gambling.
The definition of gambling place found in K.S.A. 21-4302(5) is similar to the definition of gambling place set forth in Wis. Stat. § 945.01(4)(a) and (b) (1991), which states:
“(a) A gambling place is any building or tent, any vehicle (whether self-propelled or not) or any room within any of them, one of whose principal uses is any of the following: making and settling bets; receiving, holding, recording or forwarding bets or offers to bet; conducting lotteries; or playing gambling machines.
“(b) Evidence that the place has a general reputation as a gambling place or that, at or about the time in question, it was frequently visited by persons known to be professional gamblers or known as frequenters of gambling places is admissible on the issue of whether it is a gambling place.”
In State v. Nixa, 121 Wis. 2d 160, 360 N.W.2d 52 (1984), rev. denied, the Wisconsin Court of Appeals was required to interpret the definition of “gambling place” in Wis. Stat. § 945.01(4) and determine whether the evidence sustained the defendant’s conviction on a charge of illegally remaining in a gambling place. Nixa had been arrested after allegedly participating in a gambling party in the recreational building of an apartment complex. 121 Wis. 2d at 162. The arrest followed an investigation by the sheriff’s department and city police conducted after the sheriff’s department received an anonymous telephone call about the gambling party. Upon arriving at the apartment complex, the police discovered a room fully equipped with gambling tables and related paraphernalia and crowded with people eating, drinking, and gambling. 121 Wis. 2d at 162.
Nixa unsuccessfully moved to dismiss the charge, contending the one-time use of the apartment recreational building for gambling did not constitute a gambling place under Wis. Stat. § 945.01(4). 121 Wis. 2d at 162. The Wisconsin Court of Appeals agreed with Nixa, concluded evidence of prior gambling activity was necessary to prove the existence of a gambling place, and reversed his conviction. 121 Wis. 2d at 164.
The court stated:
“Various terms in the statute suggest that prior gambling activity is essential for a location to be considered a gambling place. The definition in subsection (a) provides that a location may be considered a gambling place if one of its principal uses is gambling. Subsection (b) provides that evidence showing a place has a reputation for gambling or is frequently visited by gamblers or people known as frequenters of gambling places is admissible on this question. The term ‘one of whose principal uses’ implies a pattern of similar use on a prior occasion or occasions.” 121 Wis. 2d at 164.
The court, quoting State v. Morrissy, 25 Wis. 2d 638, 642-43, 131 N.W.2d 366 (1964), continued:
“ ‘The use of a place or room at any given time may determine its principal use at that time but for the purpose of sec. 945.01(4), Stats., such use must be considered in light of the overall or other uses of the place or room.’ ” 121 Wis. 2d at 165.
The court concluded no evidence was presented at Nixa’s trial to show prior gambling activity at the apartment complex and nothing in the facts of the charged event suggested prior gambling activity on the premises. The court held the evidence was insufficient, as a matter of law, to satisfy the element of the offense requiring proof of a gambling place. 121 Wis. 2d at 166-67.
Although the language of K.S.A. 21-4302(5) defining a gambling place does not include the phrase “one of whose principal uses,” the Judicial Council notes following K.S.A. 21-4303 clearly show the legislature intended that under K.S.A. 21-4303(b) the State must prove the defendant entered or remained in a gambling place, i.e., a structure, “one of whose principal uses is for making and settling bets.” (Emphasis supplied.)
Several of our sister states likewise agree that more than one occasion of gambling must be shown to prove the premises is a gambling place. See, e.g., State v. Cieri, 128 Conn. 149, 151-52, 20 A.2d 733 (1941) (“[T]he use of a place to render it a gambling house must be frequent, customary, common or habitual . . . and a single act of gaming is insufficient to constitute it a gaming house.”); Glisson v. State, 208 So. 2d 274 (Fla. Dist. App. 1968) (evidence must show gambling had been habitually carried on in house in question); Whatley v. State, 189 Ga. App. 173, 174, 375 S.E.2d 245 (1988), cert. denied 189 Ga. App. 913 (1989) (evidence is required that gambling activity had been occurring on premises on an ongoing basis); People v. Calkins, 13 Misc. 2d 791, 793, 178 N.Y.S.2d 385 (1958) (a gambling establishment is not one set up to exist for a moment, but is a regular place for the transaction of gambling as a business); Schepps v. City of El Paso, 338 S.W.2d 955, 959 (Tex. Civ. App. 1960), reh. denied October 5, 1960 (one occasion of gambling in a house will not be sufficient evidence to find the premises is a gambling house).
The court in Calkins stated: “[Assisting in the operation of a gambling establishment . . . is to be distinguished from the occasional placing of a bet or the wagering which occurs between friends, as an incident or form of recreation.” 13 Misc. 2d at 793.
The minority view is that one instance of gambling will be enough to render a premises a gambling place. See People v. Smith, 50 Ill. App. 2d 361, 365, 200 N.E.2d 748 (1964) (based upon court’s interpretation of Illinois statute).
In the present situation, both Jackson and Carmack testified they had no knowledge of whether the residence previously had been used for gambling purposes. According to each, the premises was used for gambling only one time — the evening the poker tournament began. The testimony is clear that the premises, at no previous time, had the reputation of a gambling place, or had been used as such. The State failed to establish that the residence was a gambling place within the meaning of K.S.A. 21-4302(5).
The question of the application of a statute to a given set of facts is a question of law. Brookover Feed Yards, Inc. v. Carlton, Commissioner, 213 Kan. 684, 687, 518 P.2d 470 (1974). The trial court erred by denying Schlein’s motion for judgment of acquittal. The evidence does not prove the offense, and Schlein’s and Bur-goon’s convictions for a violation of K.S.A. 21-4303(b) are reversed.
The second issue raised in this appeal is whether the trial court erred in refusing to instruct the jury pursuant to Schlein’s proposed instruction defining a gambling place.
Schlein requested that the following instruction be given:
“You are instructed that for the defendant to be found guilty of the crime charged the State must prove that:
“1) The defendant entered or remained in a gambling place, i.e., a structure, one of whose principal uses is for making and settling bets;
“2) That he did so with intent to make a bet; and
“3) That this act occurred on or about the 8th day of March, 1991, in Johnson County, Kansas.”
Over Schlein’s objection, the trial judge instructed the jury pursuant to PIK Crim. 2d 65.06:
“The defendant is charged with the crime of gambling. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
“1. That the defendant entered or remained in a gambling place with intent to malee a bet; and
“2. That this act occurred on or about the 8th day of March, 1991, in Johnson County, Kansas.”
Schlein contends his proposed instruction properly defined gambling place, in accordance with legislative intent, to include the phrase from the Judicial Council notes “one of whose principal uses.”
“Jury instructions are to be considered together and read as a whole, without isolating any one instruction. [Citations omitted.] If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. [Citation omitted.]” State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988).
The trial court defined “gambling place” in its instructions to the jury pursuant to PIK Crim. 2d 65.07, which replicates K.S.A. 21-4302(5). As previously discussed, K.S.A. 21-4302(5) does not include the phrase “one of whose principal uses.” The legislature, however, in the Judicial Council notes following K.S.A. 21-4303, specifically states a gambling place is a structure “one of whose principal uses is for making and settling bets.” (Emphasis supplied.) It is clear the legislature intended the principal uses of the structure to be taken into consideration when determining whether a premises is a gambling place.
Our Supreme Court in State v. Simon, 231 Kan. 572, 646 P.2d 1119 (1982), disapproved of PIK Crim. 2d 54.17, a self-defense instruction based upon K.S.A. 21-3211, because the instruction did not include the necessary definition of “reasonable belief” set forth in the Judicial Council comments following K.S.A. 21-3211; those comments explained that an objective standard is to be applied when determining the reasonableness of an accused’s actions. The court concluded a proper instruction would combine the language of K.S.A. 21-3211 with the definition of reasonable belief found in the Judicial Council comments. 231 Kan. at 575.
In this case, the trial court’s instructions, even though based on PIK Crim. 2d, did not reflect our legislature’s intent, misstated the law, and misled the jury. When defining a gambling place, a proper instruction should combine the phrase “one of whose principal uses” set forth in the Judicial Council notes with the definition found in K.S.A. 21-4302(5).
Reversed and remanded with instructions to discharge defendants.
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Davis, J.:
Allstate Insurance Company (Allstate) appeals the trial court’s determination that Allstate was bound by a default judgment entered in favor of its insured motorist, Michael D. Pickens, against Robert Wise, an uninsured motorist. We affirm.
On July 24, 1989, Pickens’ motorcycle collided with a pickup truck driven by Robert Wise. Pickens suffered a number of injuries as a result of the collision. Robert Wise was uninsured. Mid-Century Insurance Company (Mid-Century) insured Pickens’ motorcycle and provided $25,000 in uninsured motorist coverage. In addition, an automobile insurance policy issued to Pickens’ parents by Allstate provided $100,000 in uninsured motorist coverage.
Pickens filed an action against Wise and Mid-Century alleging that the accident was the result of the negligence of Wise. Pick-ens’ attorney advised Allstate by letter of the suit and further advised of the right to intervene, indicating that any judgment ultimately obtained would be binding upon the insurer. A copy of the petition filed was sent to Allstate. Allstate did not respond.
When Robert Wise did not respond to the petition filed, Pick-ens filed a motion for default judgment and sent Allstate a second letter informing it of the motion for default judgment. Allstate advised Pickens’ attorney that it did not believe Pickens was an insured under the policy issued to his parents. Before default judgment was entered, Allstate acknowledged that Pickens was covered to the extent that his claim exceeded the limits of the Mid-Century policy. Allstate indicated that, based upon the information provided to it, Pickens’ claim would not exceed the limits of his coverage with Mid-Century. Allstate elected not to join in the pending suit.
On the scheduled date, the district court entered a default judgment against Robert Wise, concluding that Pickens’ injuries entitled him to damages of $150,000. The court indicated that, although not binding on Mid-Century, the judgment was to be given full force and effect in all other respects. The court set a trial date for the dispute between Pickens and Mid-Century. Prior to trial, Mid-Century agreed to pay a $25,000 settlement, and the court dismissed Pickens’ claim against Mid-Century.
Pickens then filed suit against Allstate, alleging that (1) Pickens had obtained a $150,000 judgment against Wise; (2) Mid-Century had settled with Pickens for $25,000; and (3) Allstate owed Pickens $75,000 plus interest under the provisions of the parents’ unin sured motorist coverage. Allstate denied that the default judgment entered against Wise was valid, lawful, or binding against it and filed for a judgment on the pleadings.
The court granted Pickens’ summary judgment motion, finding that Allstate failed to act after Pickens provided the insurer with sufficient notice of the suit against Wise. The court attempted to balance the need for a full trial on the merits against Pickens’ right to have the case decided in a timely manner. In granting judgment against Allstate, the court concluded that Allstate was not denied due process of law and ordered it to pay Pickens $75,000.
Allstate raises two points: First, it contends that the default judgment against Wise is wholly ineffective against Allstate. It bases its argument on the case of Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 519 P.2d 730 (1974), contending that the trial court’s allowing Mid-Century to assert that Wise was not negligent after entry of the default judgment rendered the judgment against Wise incongruous and illegal. Second, Allstate asserts that as an excess insurer it is liable for Pickens’ loss only after Pickens exhausts the limits of his primary coverage with Mid-Century. Allstate argues that it cannot be bound by any judgment unless Mid-Century also is bound by the judgment and has exhausted its policy limits pursuant to that judgment.
We note that Allstate did not specifically raise its first argument of alleged incongruity or illegality before the trial court. Rather, it argued only that it was not bound by the default judgment. We recognize that a point not presented in the trial court cannot be raised for the first time on appeal. However, because the issue may have been implicitly raised, we elect to address this question on the merits.
Reliance Insurance Companies provides little, if any, support for Allstate. First, Reliance holds that when one of several defendants alleged to be jointly and severally liable defaults, judgment should not be entered until the dispute has been adjudicated with respect to all defendants or all defendants have defaulted. 214 Kan. at 118. Mid-Century, Allstate, and Wise are not subject to joint and several liability as were the defendants in Reliance. Mid-Century’s and Allstate’s liability is contingent on Wise’s liability; they are not jointly and severally liable. The distinction is significant because the present defendants’ liability is premised on different theories. The insurers’ liability is contractual; Wise’s liability is based on tort. Moreover, while jointly arid severally liable defendants each are liable for the entire judgment, the extent of the insurers’ liability is confined to the policy limits.
Second, Allstate is liable because it promised to provide coverage when its insured was “legally entitled to recover” damages from an uninsured motorist. (The insurance policy is not contained in the record, but we must assume that it was prepared in accordance with Kansas law. See K.S.A. 1991 Supp. 40-284[a], [b].) The default judgment entered against Wise “legally entitled” Pick-ens “to recover” damages from Wise, an uninsured motorist, within the meaning of the Mid-Century and Allstate policies. Pickens is just as legally entitled to recover damages from Wise as a result of á default judgment as he would be if judgment had been entered after a trial on the merits. K.S.A. 60-255. Guillan v. Watts, 249 Kan. 606, 616-17, 822 P.2d 582 (1991), provides that once an insurance carrier is notified of the action and elects not to intervene, it is bound by the judgment obtained:
“The Kansas public policy, that all issues in a lawsuit should be tried in one trial and that compensation to innocent persons injured by the negligent conduct of an underinsured motorist is required would be violated if an insurer that refused to intervene in the action was allowed to refuse payment on an underinsured motorist policy after its insured had established the liability of the underinsured motorist whether by a trial of that issue or a proper confession of judgment in the action. Once the insured has notified his insurer and the insurer elects not to intervene and become a party to the action, the insurer is bound by the judgment, whether the judgment is by trial or based on a proper settlement agreement between the parties to the action and approved by the court.”
Although the facts in Guillan concerned underinsured motorist insurance, the same analysis applies to uninsured motorist coverage.
Finally, the potential for incongruity simply does not exist in this case because Allstate’s liability, although contingent on Wise’s liability, is based on an insurance contract and triggered by its policyholder’s legal entitlement to recover damages from Wise. Thus, nothing prohibited the court from entering the default judgment against Wise.
Kansas law recognizes that Allstate had a financial stake in the outcome of its insured’s action against Wise and so permits Allstate to intervene in the primary action if its rights are not adequately represented by the parties. Rawlins v. Stanley, 207 Kan. 564, Syl. ¶ 1, 486 P.2d 840 (1971). Allstate had notice of Pickens’ action against Wise and chose not to intervene. Allstate had notice of Pickens’ pending motion for a default judgment and still chose not to intervene. In so doing, Allstate subjected itself to a “distinct and real hazard” that it might be required to provide coverage to its insured for any resulting judgment. Rawlins, 207 Kan. at 569.
Allstate argues that the trial court’s holding that its judgment did not bind Mid-Century relieves Allstate of liability. It claims that, as an excess insurer, it may not be liable until Pickens exhausts the limits of the Mid-Century policy. It further claims that it cannot be bound by the judgment unless Mid-Century also is bound by the judgment. Because the policies are not in the record, we are unable to say whether Allstate’s policy is an excess policy within the meaning of that term. We note, however, that Allstate concedes that Mid-Century settled with Pickens for the uninsured motorist coverage limits. Thus, the issue is moot.
The trial court’s finding that Mid-Century was not bound by the judgment against Wise was not a determination that Mid-Century was not liable to pay the judgment to the extent of its policy limits. Neither Mid-Century nor Allstate is “bound by” a judgment against Wise in the technical meaning of that term; the insurers’ liability is based on the insurance contract. In the absence of a policy, Pickens could not collect the judgment from Mid-Century or Allstate. Allstate is liable to Pickens because it promised to provide coverage to Pickens for damages Pickens was “legally entitled to recover” from an uninsured motorist. The judgment against Wise establishes Pickens’ legal entitlement and determines the amount Pickens is entitled to recover. The law permitted Allstate to protect its financial interest in the outcome of the action against Wise. Allstate had notice and opportunity to intervene in the underlying action. It chose not to do so. It may not under these circumstances relitigate the questions of liability and damages. See Guillan, 249 Kan. at 616-17 (public policy would be undermined if insurer allowed to attack judgment entered after it declined to intervene in underlying action).
We affirm.
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Brazil, J.:
Rita M. Parscale and Rawhide Enterprises of Kansas, Inc., (Parscale) appeal from the district court’s grant of summary judgment in favor of Luminous Neon, Inc. Luminous Neon filed suit against Parscale, seeking liquidated damages in accordance with a lease between the parties. On appeal, Parscale contends that the liquidated damages clause constitutes a penalty and is consequently unenforceable, the doctrine of impracticability should release her from the lease, and Luminous Neon has been unjustly enriched by the court’s ruling. We affirm.
The facts are not largely in dispute. Parscale leased two custom-designed outdoor advertising signs from Luminous Neon. Parscale used the signs for her recently opened restaurant business in Topeka. Under the terms of the lease, Parscale paid $191.75 plus tax per month. The lease expired after five years. Sometime after Parscale leased the signs, the City of Topeka commenced construction on 21st Street that limited access to Parscale’s business. That construction had an adverse effect upon Parscale’s business, and the enterprise was subsequently closed. Parscale stopped making payments on the signs after making a total of 19 payments.
Under the liquidated damages clause of the lease, Parscale was liable to Luminous Neon for damages equal to 80 percent of the remaining payments due. That 80 percent represented Luminous Neon’s expenses incurred in manufacturing, financing, and installing the signs, as well as profit. The 20 percent of the remaining payments that was not included as liquidated damages was for maintenance and service expenses that will not be incurred due to Parscale’s breach.
Forty-one monthly payments of $191.75 remained due and payable, resulting in liquidated damages, including tax, of $6,651.04. Luminous Neon removed the signs from Parscale’s business following her request to do so. The removal added another $300 for a total of $6,951.04. The district court granted Luminous Neon’s motion for summary judgment and awarded the company $6,951.04.
Parscale contends the court erred in granting summary judgment because a material fact existed relating to the liquidated damages claim of Luminous Neon. She argues that Luminous Neon’s offer, made at the outset of negotiations between the parties, to sell the sign for $5,600 plus tax reveals that the liquidated damages were unreasonable.
“Summary judgment is proper where 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. [Citations omitted.] When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.” Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
The district court ruled appropriately in this case. “The question of the propriety of liquidated damages is a question of law for the trial court.” Kvassay v. Murray, 15 Kan. App. 2d 426, Syl. ¶ 1, 808 P.2d 896, rev. denied 248 Kan. 996 (1991). “This court’s review of conclusions of law is unlimited.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Parscale challenges, in a variety of ways, the reasonableness of the liquidated damages. The contention that only the original sale price of the signs constitutes reasonable damages is not persuasive. There are advantages and disadvantages to be weighed when one considers leasing rather than purchasing an item. However, when one chooses to lease an item and then breaches that lease, it is unreasonable to believe damages should be based upon values attendant to a purchase of that item.
By leasing rather than purchasing, Parscale avoided financing charges, insurance, repair, and maintenance expenses. Luminous Neon agreed to maintain the signs during the term of the lease.
The general rule is that courts will “refuse to enforce a liquidated damage provision which fixes damages in an amount grossly disproportionate to the harm actually sustained or likely to be sustained, and under certain circumstances indicative of gross disproportion,” such a provision will be deemed a penalty. 22 Am. Jur. 2d, Damages § 701, p. 758.
Our research indicates the particular facts of this case have not been addressed by Kansas appellate courts. There is, however, case law from other jurisdictions that supports the manner in which liquidated damages were determined in this case. See, e.g., Bassett v. Claude Neon Federal Co. of Kansas, 65 F.2d 526, 527 (10th Cir. 1933) (On appeal from District Court of the United States District of Kansas, the Court upheld stipulation for liquidated damages for 75 percent of the balance of installments. “The amount stipulated for was not disproportionate to the actual loss suffered, and there was no showing of fraud, circumvention, or oppression. The repossessed signs had no substantial salvage value.”); Young Electric Sign Company v. Capps, 94 Idaho 518, 523, 492 P.2d 57 (1971) (In an action by a sign company seeking to recover from lessees for breach of sign rental contract, it was held that damages would be computed by establishing the total unpaid monthly rentals minus the saved monthly expenses of maintenance. “Since the saved expenses amount to less than 20% of the total monthly rental fee, leaving about 80% as actual lost revenue occasioned by the breach, the 75% liquidated damages provision is eminently reasonable compared to the damages actually sustained.”); Young Electric Sign Co. v. Fohrman, 86 Nev. 185, 188, 466 P.2d 846 (1970) (Nevada Supreme Court upheld liquidated damages clause where the lessee had agreed that in case of his default in the payment of rent, he would pay lessor liquidated damages of 75 percent of the balance of the rental payable.); Baldwin v. National Safe, 40 Wash. App. 69, 73, 697 P.2d 587 (1985) (In an action by lessor of signs to recover rental payments from lessee, provision in lease specifying liquidated damages of all unpaid past due rentals plus 80 percent of all future rentals was properly used as basis for apportionment of damage, notwithstanding plaintiff’s partial breach.).
Luminous Neon custom designed the signs specifically for Parscale, and, notwithstanding her argument to the contrary, we are not persuaded that the signs are of particular value to Luminous Neon. Moreover, the trial court awarded the signs to Parscale.
The district court properly ruled as a matter of law that the liquidated damages were appropriate. The damage clause of the lease was not a penalty, and the award did not unjustly enrich Luminous Neon. Because there was no dispute regarding any material issue of fact, the court’s entry of summary judgment should not be disturbed.
Next, Parscale contends that the doctrine of impracticability of performance applies to this case and consequently she should be excused from her obligations under the lease. Specifically, Parscale asserts that she should be excused from the lease because the City of Topeka closed 21st Street for construction, which made access to Parscale’s business difficult. Her business suffered as a consequence, and she was eventually forced to close the establishment.
“Whether a party should be excused from its obligations under a contract because of impossibility or impracticability of performance is a question of law.” Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan. App. 2d 131, Syl. ¶ 1, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982). “This court’s review of conclusions of law is unlimited.” Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d at 674.
As a general rule, difficulty or improbability of accomplishment without financial loss will not release a party from a contract. Though compliance may become a hardship, that will not excuse a party from contractual obligations that are possible and lawful. See 17A Am. Jur. 2d, Contracts § 669.
This court has held:
“To excuse performance, impracticability must be objective as opposed to subjective. When one agrees to perform an act possible in itself he will be liable for a breach thereof although contingencies not foreseen by him arise which make it difficult, or even beyond his power, to perform and which might have been foreseen and provided against in the contract.” Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan. App. 2d 131, Syl. ¶ 4.
This court has also noted that a distinction exists between impracticability that is subjective and that which is objective: subjective impracticability being, “I cannot do it”; objective impracticability being, “the thing cannot be done.” 7 Kan. App. 2d at 139. Only objective impracticability may serve to relieve a party of his or her obligation.
The present case is one of subjective impracticability. Parscale could no longer afford to operate her business due to road construction or some other reason. It is not sufficient merely that the business suffered. See also White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 490 P.2d 609 (1971) (Where the alleged impossibility was that more financing was needed for a construction project than had previously been agreed to in a loan commitment, the impossibility was subjective.); Wichita Properties v. Lanterman, 6 Kan. App. 2d 656, 633 P.2d 1154 (1981) (Inability to obtain liquor license from the State was subjective impossibility to perform.).
In addition, it cannot be said that road construction within Topeka is an unforeseeable event. Certainly, Parscale was aware that such an eventuality might take place. It was incumbent upon Parscale to safeguard her position in the terms of the lease.
If impossibility existed in this case, it was subjective only. The district court’s grant of summary judgment was appropriate.
Affirmed.
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Larson, J.:
David Button appeals from the trial court’s determination that monies transferred to him by his now-deceased parents were loans owned by his parents as joint tenants with the right of survivorship which are to be set off against his distributive share of the estate of his mother, Aileen Button.
David, Damon, and Darcy Button are the only children of Robert and Aileen Button.
Over a period of several years, Robert transferred money from his and Aileen’s joint tenancy with right of survivorship bank accounts to all three sons. Damon and Darcy understood the monies received were loans, which they repaid with interest.
David did not characterize the monies received as loans or gifts, nor did he make any repayment to his parents with the exception of one cash payment of $1,600.
Robert died intestate in December 1988. After Robert died, Damon and Darcy discovered that David had not repaid their parents for the monies transferred to him. An attempt was made to work out an agreement with David to repay the monies to Aileen.
Aileen had multiple sclerosis. From 1978 until her death she did not handle personal or financial matters. Aileen did execute a will that left all of her property to her three sons in equal shares.
Aftér Aileen died in October 1989, Darcy was appointed executor of her estate.
The final settlement petition requested the loan obligations of David plus accrued interest be set off against his distributive share of Aileen’s estate. David objected to the final settlement petition, denying he was obligated to Aileen or her estate.
All three sons testified at the hearing. Documentary evidence showing the transfers as loans and Robert’s accountings was introduced.
Testimony showed all advanced monies came from accounts held as joint tenancy with rights of survivorship and the one payment made by David was returned to such an account. The evidence showed Robert and Aileen were devout Mormons who felt all of their property was owned jointly.
The trial court found the monies transferred to David from his deceased parents were loans held as property in joint. tenancy with rights of survivorship to be set off against his distributive share of Aileen’s estate.
David appealed.
Did the Mai court err in finding the monies transferred to David were loans rather than gifts?
The determination of whether the monies transferred to David were gifts is a question of fact. See Hudson, Administrator v. Tucker, 188 Kan. 202, 211, 361 P.2d 878 (1961). “The standard of appellate review of findings of fact has been stated numerous times by this court. The court must determine if the findings are supported by substantial competent evidence and whether they are sufficient to support the trial court’s conclusions of law.” Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 19, 774 P.2d 919 (1989).
“To establish a valid gift inter vivos, there must be (a) an intention to make a gift; (b) a delivery by the donor to the donee; and (c) an acceptance by the donee.” In re Estate of Matthews, 208 Kan. 492, Syl. ¶ 6, 493 P.2d 555 (1972). “The burden of proving that a gift was made, including the existence of all the elements necessary to its validity, is upon the party asserting the gift.” Truax v. Southwestern College, 214 Kan. 873, Syl. ¶ 3, 522 P.2d 412 (1974).
According to Coe, Administratrix v. First National Bank & Trust Co., 219 Kan. 352, Syl. ¶ 1, 548 P.2d 486 (1976), “[a] loan is made when the borrower receives money over which he exercises dominion and which he expressly or impliedly promises to repay.”
“If the judicial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee must be deemed to have failed in the discharge of his burden and the claim of gift must be rejected.” 38 Am. Jur. 2d, Gifts § 106.
David did not characterize the monies as either loans or gifts, but merely as transfers from his mother and father.
Darcy introduced their deceased father’s records, which specifically accounted for four of the transfers as loans. Three of the transfers have provisions that set forth a rate of interest. Interest was calculated and added to the loan principal in Robert’s computations.
Robert’s records showed other transfers of money to David for house payments and expenses of David’s business from the joint tenancy account. Robert kept monthly accountings of transfers to David in the same manner as he kept accountings for loans to Damon and Darcy. Although only four of the largest transfers were characterized as loans, Robert’s records support Darcy and Damon’s contention that all transfers to David were intended as loans.
David clearly failed to meet his burden to prove the monies transferred to him were gifts. The trial court’s findings that the monies transferred were loans is supported by substantial competent evidence. The lack of written promissory notes does not negate the existence of a loan transaction. In Rains v. Weiler, 101 Kan. 294, 297, 166 Pac. 235 (1917), it was stated:
“ ‘The intention of the parties to any particular transaction may, however, be gathered from their acts and deeds, in connection with the surrounding circumstances, as well as from their words; and the law therefore implies, from the silent language of men’s conduct and actions, contracts and promises as forcible and binding as those that are made by express words or through the medium of written memorials.’ ”
Neither can the monies transferred be considered as advancements, as David argues.
“ ‘In its strict technical sense, an advancement is a perfect and irrevocable gift, not required by law, made by a parent, during his lifetime, to his child, with the intention on the part of the donor that such gift shall represent a part of the whole of the portion of the donor’s estate that the donee would be entitled to on the death of the donor, intestate.’ ” In re Estate of Bush, 155 Kan. 556, 560, 127 P.2d 455 (1942).
Strictly speaking, the term advancement applies in situations when the decedent died intestate, but the term has been used in will cases interchangeably with ademption. In re Estate of Wernet, 226 Kan. 97, 107, 596 P.2d 137 (1979); Bush, 155 Kan. at 560. See K.S.A. 59-510.
Refore the transfers to David could be considered advancements, they first would have to have been shown to be gifts. David, having failed in his burden to prove the transfers were gifts, is precluded from arguing that the transfers were entitled to be treated as advancements.
The trial court correctly ruled the monies transferred to David from his parents were loans.
Did the trial court err in finding the loans were owned by Robert and Aileen as joint tenants with the right of survivorship?
David most strongly argues that the loans cannot be joint tenancy assets because there is no written evidence he promised to pay the debt to his parents as joint tenants with the rights of survivorship.
Damon and Darcy claim there is no legal authority to support David’s contention that a third-party debtor can determine the existence or nonexistence of a joint tenancy between the makers of a loan. They further argue the loans to David made from joint tenancy funds retained the character of joint tenancy property, relying on In re Estate of Biege, 183 Kan. 352, 327 P.2d 872 (1958).
David contends Biege is distinguishable from the present situation.
It is recognized that joint tenancy ownership may apply to personal as well as real property. In re Estate of Girndt, 225 Kan. 352, Syl. ¶ 1, 590 P.2d 1038 (1979); Winsor v. Powell, 209 Kan. 292, 299, 497 P.2d 292 (1972).
Under common law, four unities had to be present to create a joint tenancy; interest, title, time, and possession. Simonich, Executrix v. Wilt, 197 Kan. 417, 421, 417 P.2d 139 (1966).
The loans to David originated primarily from three bank accounts. The record on appeal reveals two bank accounts were held by Robert and Aileen as joint tenants with the right of survivorship and the third account was a savings account. The trial court found that “[ajll checking and savings accounts and all certificates of deposit were held by Robert and Aileen as joint tenants with rights of survivorship.”
Since all loans made to David originated from jointly held funds, the determinative question is whether such ownership in the loans continued.
The property involved in Biege, 183 Kan. 352, was real estate owned in joint tenancy with rights of survivorship. The land was sold by the Bieges on an installment contract, with all payments to be made to an escrow bank and deposited in their account held in joint tenancy with rights of survivorship. The contract, however, contained no provisions that the right to receive the contract payments was held in joint tenancy.
The executors of Mrs. Biege’s estate sought to recover half of the proceeds collected in the account from payments made after her death. The executors contended that a tenancy in common was created because the contract of sale did not specify otherwise and because the sale severed the joint tenancy.
Justice Wertz, speaking for the Kansas Supreme Court, opined:
“We do not agree that a mere change in the form of property is conclusive proof of an intent to sever a joint tenancy or that such a change destroys unities between joint tenants. In the instant case no unities were destroyed but, rather, the character of the property was changed. . . . Under the statute (58-501) the intent of the parties and not the fact of a change in the form of the property controls.” 183 Kan. at 355.
Justice Wertz continued:
“Changing the form of the property is an act unrelated to the holders’ status as joint tenants. Joint tenancy is a relationship between certain people who have as a result of that tenancy certain rights in the res. . . . [A] ¡¡mere agreement by persons entitled as joint tenants to convert their property from one species to another does not operate to work a severance.
“It was stated in Fish v. Security-First Nat. Bank, 31 Cal. 2d 378, 189 P.2d 10, 15, that, ‘The proceeds of joint tenancy property, in the absence of contrary agreement, retain the character of the property from which they are acquired.’
“It would appear that in view of our statute a joint tenancy is severed only in the manner in which it was created, i.e., by the clear intent of the parties.” 183 Kan. at 355-56.
The court held that Mr. Biege as the surviving joint tenant became sole owner of the legal title to the real estate and all rights under the installment sales contract.
We hold that Biege is dispositive of this issue. It was not shown that Robert and Aileen wished to change the joint tenancy character of the monies loaned to David. All of the evidence was to the contrary. Holding David’s loans remained owned by Robert and Aileen as joint tenants with rights of survivorship is a logical extension of the Biege decision and is required by the facts in this case.
K.S.A. 58-501 is not applicable in this situation as David did not “grant or devise” property to Robert and Aileen within the meaning of that statute.
The trial court properly held that the loans remained owned by Robert and Aileen as joint tenants with rights of survivorship and not as tenants in common.
Did the trial court err in determining the method hy which the loans would be set off against David’s distributive share of the estate?
To give effect to its ruling, the trial court ordered an amount equal to David’s debt plus interest thereon added to Aileen’s estate, the equal one-third distributive share of each brother be calculated, and the amount of David’s debt plus interest set off against his distributive share with the balance distributed to him and the remaining undiminished shares distributed to Damon and Darcy.
David contends this procedure violates the direction set forth in In re Estate of Wernet, 226 Kan. 97, 108-09, 596 P.2d 137 (1979). He also raises a statute of limitations argument as to the indebtedness.
This statute of limitations argument is without merit. Holden v. Spier, 65 Kan. 412, 416, 70 Pac. 348 (1902), holds the statute of limitations cannot be interposed when the question is whether the indebtedness of an heir shall be retained out of his distributive share. See Wernet, 226 Kan. 97, Syl. ¶ 7.
Although it is true Wernet stated that a nephew’s indebtedness was not an “asset” in determining the total valuation of the estate, the indebtedness is to be calculated and set off against the debtor’s share of the estate. 226 Kan. at 108-09.
The theory under which the debt of a distributee is collected is founded on the principle that the administrator or executor has an equitable lien on the share of the distributee until he or she discharges the obligation owed to the estate. Holden, 65 Kan. at 418.
Wilson v. Channell, 102 Kan. 793, 796, 175 Pac. 95 (1918), held: “ ‘The heirs of a decedent, whether lineal or collateral, take their distributive share of the estate subject to all existing equities in favor of the estate against them personally and against any of those from whom they inherit.’ ”
The indebtedness of David to the estate is regarded as assets of the estate already in his hands and his legacy or share is to that extent satisfied. See Wernet, 226 Kan. at 108; Holden, 65 Kan. at 416.
It makes no difference whether the computation is accomplished as Wernet suggests or in the manner utilized by the trial court because the result is the same. David’s entire obligation must be paid because, as Holden v. Spier, 65 Kan. at 417, states: “ ‘It is against conscience that you should take anything out of the estate until you have made good what you owe it.’ ”
Affirmed.
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Pierron, J.:
In a workers compensation case, Stixon Petroleum (Stixon) and United States Fidelity and Guaranty Company (USF&G) (respondents-appellants) appeal a judgment of the district court awarding George Stout (claimant-appellee) $7,500 in civil penalties pursuant to K.S.A. 1991 Supp. 44-512a because of the appellants’ failure to pay compensation that had been awarded to Stout.
George Stout was injured while working as an employee of Stixon in March 1988. Stout filed an application for a preliminary hearing, seeking temporary total and/or medical benefits pursuant to K.S.A. 1991 Supp. 44-534a. A preliminary hearing was held before an administrative law judge (ALJ) on November 14, 1989. After hearing argument by the parties, the ALJ ordered the appellants to pay Stout temporary total compensation of $256 per week, retroactive from August 19, 1989, and continuing until the completion of a vocational rehabilitation plan. The order’s effective date was November 15, 1989. See K.S.A. 44-525(a). Stout sent two certified letters dated November 20, 1989, demanding payment of the ordered compensation, one of which was received by Stixon’s counsel on November 21, 1989, and the other by USF&G on November 22, 1989.
On November 27, 1989, the appellants filed a timely application for director’s review of the ALJ’s preliminary hearing order. On January 19, 1990, the director issued an order finding that the preliminary hearing order was not reviewable and so would remain in frill force and effect. On January 20, 1990, the appellants paid Stout $5,632, representing 22 weeks of temporary total disability compensation due for the period from August 19, 1989, through January 20, 1990.
Stout filed an application for penalties pursuant to K.S.A. 1991 Supp. 44-512a. The ALJ issued an order assessing a penalty of $7,500 against the appellants without explanation of his computations.
The appellants filed an application for director’s review of the order assessing a penalty. The director issued an order affirming that a penalty was due, but reducing its amount to $1,095.68. The penalty amount arrived at was based on a computation of 8 percent of the $256 per week of temporary total disability benefits times 53.5 weeks. The director determined that compensation was 53.5 weeks past due by “pyramiding” the number of weeks between November 14, 1990, (the date of the preliminary hearing order to pay the compensation) and January 20, 1990 (the date compensation was finally paid).
Stout filed a petition for judicial review of the director’s order. In a journal entry filed on April 9, 1991, the district court affirmed the award of a penalty, but in the amount of $7,500. The district court dated the period of time for which compensation was past due from August 19, 1989, the date from which benefits were back-dated. The court found that compensation was unpaid for 22 weeks between August 19, 1989, and January 20, 1990. By pyramiding these 22 weeks, the court found 262.46 weeks subject to penalty. The court multiplied these 262.46 weeks times 11 percent of the $256 weekly benefit rate to arrive at its total penalty of $7,500.
Stixon and USF&G appealed following the denial of their motion to alter or amend.
The first issue to be addressed is whether the district court lacked jurisdiction to award a penalty under K.S.A. 1991 Supp. 44-512a. The appellants maintain no compensation was due because there had not yet been a final award when Stout’s demand letters were sent, and so the demand letters were premature and ineffectual. They also argue that their requests for review of the ALJ’s preliminary order, first to the director of workers compensation and later to the district court, stayed the requirement to pay any compensation until these actions for review were determined.
It would initially be useful to consider the statutory framework involved in this case. K.S.A. 1991 Supp. 44-512a imposes civil penalties when an employer or its insurance carrier fail to pay compensation to a workers compensation claimant when due. K.S.A. 1991 Supp. 44-512a provides, in pertinent part:
“(a) In the event any compensation, including medical compensation, which has been awarded under the workers compensation act, is not paid when due to the person, firm or corporation entitled thereto, the employee shall be entitled to a civil penalty, to be set by the director and assessed against the employer or insurance carrier liable for such compensation in an amount of not more than $100 per week for each week any disability compensation is past due and in an amount for each past due medical bill equal to the larger of either the sum of $25 or the sum equal to 10% of the amount which is past due on the medical bill, if: (1) Service of written demand for payment, setting forth with particularity the items of disability and medical compensation claimed to be unpaid and past due, has been made personally or by registered mail on the employer or insurance carrier liable for such compensation and its attorney of record; and (2) payment of such demand is thereafter refused or is not made within 20 days from the date of service of such demand.
“(b) After the service of such written demand, if the payment of disability compensation or medical compensation set forth in the written demand is not made within 20 days from the date of service of such written demand, plus any civil penalty, as provided in subsection (a), if such compensation was in fact past due, then all past due compensation and any such penalties shall become immediately due and payable. Service of written demand shall be required only once after the final award. Subsequent failures to pay compensation, including medical compensation, shall entitle the employee to apply for the civil penalty without demand.”
Before a penalty may be imposed, the statute essentially requires (1) an award of compensation which is due and payable, but has not been paid, (2) service of a written demand for payment, and (3) the passage of 20 days from the service of demand without payment of the compensation due. K.S.A. 1991 Supp. 44-512a.
The appellants contend compensation was not yet due when Stout’s demand letter was sent. They rely on K.S.A. 1991 Supp. 44-551(b)(l), which states, in pertinent part:
“All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge, shall be subject to review and approval by the director upon written request of any interested party within 10 days and if no such request is made, then the director shall approve such actions, findings, awards, decisions, rulings or modifications of findings or awards of the administrative law judge. The filing of such a request for review shall not be a prerequisite to judicial review as provided for in K.S.A. 44-556 and amendments thereto.”
In Harper v. Coffey Grain Co., 192 Kan. 462, 388 P.2d 607 (1964), the workers compensation examiner filed his award on April 9, 1963. The claimant made a demand upon the respondent three days later. The court held:
“Until a workmen’s compensation award becomes the final award of the workmen’s compensation commissioner (now director) it is not due the claimant. Thus,'before a claimant may invoke the provisions of [K.S.A. 44-512a] as construed by this court, the compensation awarded must be the final award of the director.
“In effect, what the court has said in construing 44-551, supra, is that an award of the examiner does not become a final award of the director until the expiration of ten days after it is filed, or until a request for review, filed within the ten-day period by an interested party, is determined by the director.
“Applying the foregoing statutes as construed to the facts in the instant case, we hold there has been no final award entered by the director in the workmen’s compensation proceedings. Therefore, the claimant’s demand for payment pursuant to the provisions of 44-512a, supra, was premature and ineffectual to authorize an action for a lump sum judgment.” 192 Kan. at 466-69. See Cramer v. Blankenship Painting & Decorating Co., 197 Kan. 360, 416 P.2d 255 (1966).
In effect, the court found that, for the purposes of 44-551, the ALJ’s award was not a final award and due until the 10 days allowed for the director’s review had passed or, if review was requested by the employer, until determined by the director.
The award favoring Stout was effective on November 15, 1989. He sent his demand letters on November 20, 1989, less than 10 days from the date of the award. Stout’s claim for compensation would then seem to have been premature.
In countering this argument Stout relies upon K.S.A. 1991 Supp. 44-534a. K.S.A. 1991 Supp. 44-534a provides, in pertinent part:
“(a) After filing an application for a hearing pursuant to K.S.A. 44-534 and amendments thereto, the employee may make application for a preliminary hearing, in such form as the director may require by rules and regulations, on the issues of the furnishing of medical treatment and the payment of temporary total disability compensation and for any matter relative to the furnishing of vocational rehabilitation in accordance with and subject to the provisions of K.S.A. 44-510g and amendments thereto. . . . Upon a preliminary finding that the injury to the employee is compensable and in accordance with the facts presented at such preliminary hearing, the director or administrative law judge may malee a preliminary award of medical compensation and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim. If temporary total compensation is awarded, such compensation may be ordered paid from the date of filing the application, except that if the administrative law judge finds from the evidence presented that there were one or more periods of temporary total disability prior to such filing date, temporary total compensation may be ordered paid for all periods of temporary total disability prior to such date of filing. The decision in such preliminary hearing shall be rendered within five days of the conclusion of such hearing. No such preliminary findings or preliminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts. ” (Emphasis added.)
Stout seems to argue that K.S.A. 1991 Supp. 44-534a, by making preliminary awards unappealable until after conclusion of the “full hearing,” has eliminated the judicially created requirement of a 10-day waiting period before a demand letter is effective.
It seems clear that the legislature, in making a preliminary award “unappealable” until after conclusion of a full hearing on the claim, also intended to prohibit any request for the director’s review of a preliminary award. A request for the director’s review is essentially an appeal to the director. K.S.A. 1991 Supp. 44-534a, being a more specific statute, takes precedence over 44-551, which authorizes a director’s review upon the request of any interested party within 10 days. The legislature’s intent has since been more expressly formalized by amendments to 44-551 forbidding the director’s review of a preliminary award except where the jurisdiction of the court is at issue. K.S.A. 1991 Supp. 44-551(b)(2)(A).
We agree with the appellee’s position that the judicially created 10-day waiting period, which could serve now only as a trap for the unwary, is not a requirement where a preliminary award is involved, for an effective demand. A preliminary award is due when entered and so Stout’s demand was not premature.
The second issue raised is whether payment of compensation was stayed by the appellants’ application for review of the preliminary order.
The appellants contend that, pursuant to K.S.A. 1991 Supp. 44-556, payment of compensation had been stayed, and so was not due. K.S.A. 1991 Supp. 44-556 states, in relevant part:
“(a) Any action of the director pursuant to the workers compensation act shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions. . . .
“(b) On any such review the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require. No compensation shall be due or payable until the expiration of the time for commencing an action for review and then the payment of past due compensation awarded by the director shall not be payable if, within such time a petition for review, has been filed in accordance with the act for judicial remew and civil enforcement of agency actions. Except as otherwise provided by this section, the right of review shall include the right to make no payments of such compensation until the review has been decided by the district court if the employer is insured for workers compensation liability with an insurance company authorized to do business in this state, if the employer is maintaining membership in a qualified group-funded workers compensation pool under K.S.A. 44-581 through 44-591 and amendments thereto, if the employer is maintaining membership in a group-funded pool under the Kansas municipal group-funded pool act which includes workers compensation and employers’ liability under the workers compensation act, or if the employer is currently approved by the director as a self-insurer and has filed a bond with the district court in accordance with K.S.A. 44-530 and amendments thereto. Commencement of an action for review shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision and for the period of time after the director’s decision and prior to the decision of the district court on review. ” (Emphasis added.)
In light of K.S.A. 1991 Supp. 44-556, it has been held that no compensation is ordinarily due and payable until expiration of the time allowed for filing a petition for judicial review. (Thirty days from the date of service of a director’s order. K.S.A. 1991 Supp. 44-556a; K.S.A. 77-613[b]). See Hallmark v. Dalton Construction Co., 206 Kan. 159, 161, 476 P.2d 221 (1970). If a petition for judicial review is filed within the time allowed for appeal, no compensation is ordinarily due and payable until the appeal is decided by the district court if the other statutory conditions are met. Any demand filed within 30 days from service of the order is, in the proper circumstances, ineffectual as a predicate for a 44-512a action. See Hallmark, 206 Kan. at 161-62.
The statute does, it should be noted, expressly indicate that payment of compensation due for the 10-week period next preceding the director’s decision and for the period of time after the director’s decision and prior to the decision of the district court on review is not stayed. K.S.A. 1991 Supp. 44-556(b). There is no indication the appellants, made such payments. The case law indicates that, while the payment of this compensation is not a prerequisite to an appeal to the district court, Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, Syl. ¶ 4, 466 P.2d 344 (1970), it is a prerequisite to invoking the stay. See Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 433, 454 P.2d 511 (1969).
In. the present case, however, we find the stay provisions of K.S.A. 1991 Supp. 44-556 were simply not applicable. The clear legislative purpose in enacting K.S.A. 1991 Supp. 44-556 was to stay payment of compensation until the employer perfected his appeal to the district court in order to permit that court to determine the validity and amount, if any, of the compensation awarded. See Hallmark, 206 Kan. at 163 (Fatzer, J., dissenting). A preliminary order pursuant to K.S.A. 1991 Supp. 44-534a is expressly made not subject to appeal to the district court. “Legislative intent is crystal clear, however, that no appeal can be taken to the district court or to this court from a temporary award arising out of a preliminary hearing (K.S.A. 1980 Supp. 44-534a).” Lively v. MBPXL Corp., 7 Kan. App. 2d 204, 207, 638 P.2d 999 (1982). Because no appeal of a K.S.A. 1991 Supp. 44-534a preliminary order may be had, the legislature cannot have intended to stay compensation while awaiting expiration of the time to commence an appeal. Furthermore, K.S.A. 1991 Supp. 44-566 by its terms, only applies to “any action of the director.” No action of the director was involved here. We find that the stay of compensation provided for by K.S.A. 1991 Supp. 44-556 was not available to the appellants for the reasons cited. Compensation was due and the demand letter was not premature.
“The overriding purpose of the Workers Compensation Act is to secure prompt payment to injured employees of the benefits provided for under its terms.” Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d 193 196-97, 786 P.2d 618 (1990). The intent of the legislature in enacting K.S.A. 1991 Supp. 44-534a, providing for á summary procedure under which benefits can be granted to a claimant and making any order nonreviewable until time of the filial full hearing, seems clearly to have been directed toward insuring that the claimant did not become destitute or succumb to pressures for a quick settlement while awaiting a final decision in his case. If the ALJ’s award is later found to be erroneous, the employer or his insurer are reimbursed for any erroneous payments by the workers compensation fund. K.S.A. 1991 Supp. 44-534a(b). If the statutory interpretations sought by the respondents were affirmed, these legislative purposes would clearly be frustrated.
The last issue is whether the district court erred as a matter of law in determining the number of weeks disability compensation was past due when computing penalties under K.S.A. 1991 Supp. 44-512a.
Since 1988, the director of workers compensation has taken the position that what is commonly referred to as “pyramiding” is authorized by K.S.A. 1991 Supp. 44-512a when computing the number of weeks for which a penalty will be assessed. As one observer describes it:
“The concept of pyramiding involves computation of the number of weeks of penalties due by establishing the number of weeks (and parts, expressed as a decimal) of benefits due, and then counting the number of weeks each of those weeks are past due. After determining the number of weeks each individual week of compensation is past due, those totals are then added, resulting in a total number of weeks of penalties.
“Thus, if four weeks of compensation are past due for a period of ten weeks following the last week of compensation, forty-six weeks of penalties are mandated by the statute. In such a case, the first week of compensation is past due for thirteen weeks; the second for twelve weeks; the third for eleven weeks, and the fourth for ten weeks. Consequently, although only four weeks of compensation were past due for ten weeks, a total of forty-six weeks of penalties must be assessed.” Miller, Workers Compensation Penalties Under K.S.A. 44-512a: Recent Interpretation by Director Anderson, 12 J.K.T.L.A., No. 6, 23 (1989).
The appellants contend this practice of pyramiding weeks is not authorized by the plain language of K.S.A. 1991 Supp. 44-512a. They argue the district court also erred in computing compensation as past due from the date of the back-dated award, August 19, 1989, rather than from the date of the ALJ’s preliminary order, November 14, .1989.
K.S.A. 1991 Supp. 44-512a states that the person entitled to compensation shall be entitled to a civil penalty “of not more than $100 per week for each week any disability compensation is past due.” (Emphasis added.)
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. [Citation omitted.]” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). “ '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.’ [Citation omitted.]” Creamer v. Kansas Dept. of Revenue, 15 Kan. App. 2d 573, 575, 812 P.2d 330 (1991).
We interpret the language of the statute to mean that compensation is not past due until it is awarded by the ALJ. Therefore, the penalty award in this case should be dated only from the effective date of the ALJ’s order, November 15, 1989, and not from the date of the initial back-dated award.
We further find the language “for each week any disability compensation is past due” precludes pyramiding. In order to allow pyramiding the language would need to read “for each and every week that each and every week’s payment of disability compensation is past due.” The director of workers compensation, in justifying pyramiding, was clearly concerned with the reduced deterrent effect of a lesser penalty. While this is a legitimate concern, it is the responsibility of the legislature to determine whether and how to address it.
We find for the appellants on this issue, reducing the penalty awarded from $7,500 to $971 ($100 per week times 9.71 weeks past due counting from November 15, 1989, to January 20, 1990).
Affirmed in part, reversed in part, and remanded with directions to enter a new penalty award.
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DAVIS, J.:
Richard A. Gaschler appeals his convictions of driving while under the influence of alcohol and transporting an open container of liquor, in violation of K.S.A. 8-1567 and K.S.A. 41-804. He contends that the sentence imposed by the court was beyond the court’s authority, that he was inadequately represented by counsel, and that the court reporter fabricated portions of the transcripts of the plea hearing and sentencing hearing. We affirm the convictions, vacate that portion of the sentence in excess of the trial court’s jurisdiction, and remand for correction of the sentence imposed.
The defendant pled guilty to one count of driving while under the influence of alcohol and one count of transporting an open container of liquor. The district court imposed the following sentence: (1) 45 days in the county jail on each count, the sentences to run concurrently with each other; (2) a $200 fine on Count I, and a $100 fine on Count II, plus $110 A.S.A.P. fee; (3) completion of a level II program recommended by Crossroads; and (4) suspension of defendant’s driving privileges for 180 days on each count, the suspensions to run concurrently. The trial court then suspended all but 48 hours of the jail sentence and granted the defendant two years’ probation on the condition that he not possess or consume any alcohol or nonprescription controlled substances during the probationary period and that defendant further subject himself to random urinalysis as directed by the court services officer.
The Sentence
The defendant correctly contends that the court did not have authority to suspend his driver’s license for 180 days, either on the DUI conviction or on the transporting an open container of liquor violation.
K.S.A. 8-1567(d) authorizes the court to impose the following sentence for the first DUI conviction: (1) not less than 48 consecutive hours nor more than 6 months in jail or 100 hours of public service, and (b) a fine of $200 to $500, and (c) successful completion of an alcohol and drug safety education and/or treatment program. K.S.A. 8-1567(d) does not permit the court to suspend the defendant’s driver’s license.
The law relating to transportation of an open container of liquor does not authorize the court to suspend the defendant’s driver’s license for 180 days. K.S.A. 41-804(c) requires the court to suspend the defendant’s driving privileges for three months. In lieu of suspension under subsection (c), K.S.A. 41-804(f) allows the court to restrict the defendant’s driving privileges for a period not less than three months. Thus, the court exceeded the express statutory authorization.
We affirm the defendant’s convictions, but vacate that portion of the sentence that suspended the defendant’s driving privileges for 180 days. We remand to the district court, with specific directions that the portion of the sentence suspending the defendant’s driving privileges for 180 days be vacated. Otherwise, the sentence imposed by the court is affirmed.
Adequacy of Representation
Our review of the record indicates that the defendant had at least four attorneys during the district court proceedings. He complains that he was not adequately represented, but for him to prevail upon this claim, he must show that the performance of one (or more) of his attorneys fell below an objective standard of reasonableness and that the attorney’s deficient performance prejudiced him to the extent that there is a reasonable possibility that, but for the attorney’s errors, the result would have been different. Chamberlain v. State, 236 Kan. 650, Syl. ¶ 3, 694 P.2d 468 (1985). The defendant’s complaints fall into three categories: (1) Attorney Brooks’ handling of the diversion agreement negotiations; (2) communication problems regarding various issues; and (3) allegations that one or more of his attorneys filed documents without defendant’s consent.
According to the pro se brief, the county attorney rejected a diversion agreement because office policy prohibited diversion when the defendant’s blood alcohol concentration exceeded 0.25. Defendant seems to-be complaining because his attorney did not tell him that to -begin with and because it took so long to get that answer. Nothing in the record suggests an unreasonable delay. Even if the delay had been unreasonable, a speedier resolution. would not have resulted in a different outcome. The defendant simply would have received the “no diversion” answer more quickly. Given the county attorney’s policy, defense counsel could not have affected a different outcome by handling the situation differently.
The defendant also claims that he did not have a diversion conference as provided in K.S.A. 22-2907 and that Brooks did not present the factors outlined in K.S.A. 22-2908 to the county attorney. The defendant disregards the basic provision of K.S.A. 22-2907(1) that entry into a diversion agreement is within the discretion of the prosecutor. Participation in a 22-2907 conference and consideration of the 22-2908 factors become necessary only when the prosecutor has, in his or her discretion, determined that a diversion agreement might be appropriate. The county attorney here decided a diversion would not be appropriate because of the defendant’s blood alcohol level.
The second aspect of this issue about which defendant complains is communication problems with his attorneys. Basically, the defendant claims that his attorneys made assurances that did not come true (e.g., Crossroads will not require in-patient treatment) and that he had trouble reaching his attorneys when he wanted to talk with them. These complaints will be addressed with the third category because the analysis is identical. The third class of complaints concerns his counsels’ performance in filing documents in the court without his review or approval.
Although, if true, this conduct undoubtedly frustrated the defendant, it does not rise to the level of ineffective assistance of counsel that would require reversal. Moreover, based on the content of and exhibits to his appellate counsel’s motion to withdraw, there is a good chance that the defendant simply misunderstood his attorneys, forgot that he ever talked to his attorneys, forgot that he reviewed the documents at issue, or thought he had called his attorneys when he had not.
In summary, defendant’s specific complaints about legal representation do not warrant reversal. Even assuming that all the complaints are true, the result in this case would not have been different. See Chamberlain v. State, 236 Kan. 650, Syl. ¶ 3.
Court Reporter Fabrication
The defendant contends that the transcripts of his plea hearing and sentencing hearing are fraudulent fabrications “to justify the harsh and unjust sentencing that the Court handed down in this case.” We find absolutely nothing in the record to support this contention.
The defendant, through his pro se brief, raises other matters. We have examined those matters carefully and find no basis for reversal of the defendant’s conviction based upon his allegations. Thus, we affirm the convictions, vacate that portion of the sentence beyond the court’s jurisdiction, and remand for correction of that portion of the sentence exceeding the court’s authority.
Affirmed in part, vacated in part, and remanded with directions.
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Lewis, J.:
Appellants, Russell S. and Lois A. Wunschel (Wunschels), appeal from the granting of summary judgment in favor of Transcontinental Insurance Company (TIC). We reverse and remand.
Lois Wunschel was the owner of property located in Shawnee County and known as the Kaw Valley Country Inn (Inn). The Inn was leased to Robert N. Holmes by the Wunschels under a written lease agreement. This lease agreement, among other things, specifically required Holmes to maintain casualty insurance. In the event a casualty were to occur, Holmes was required to use the insurance proceeds to repair or rebuild the Inn. The Wunschels also contend that the lease required Holmes to list them as loss payees under any policy procured under the lease.
In satisfaction of the requirements of the lease, Holmes obtained-the necessary fire, wind, and hail policy on the Inn from TIC. TIC issued the policy to Holmes as the insured. The policy contained a clause headed “Loss Payable Provisions.” That clause of the policy covered the building and contents of the insured property and listed as the loss payee “Mr. & Mrs. Russell Wunschel, 805 N. Main, Carroll, IA 51401.” One pertinent portion of the loss payable clause of the policy reads as follow:
“A. LOSS PAYABLE
For Covered Property in which both you and a Loss Payee shown in the Schedule or in the Declarations have an insurable interest, we will:
1. Adjust losses with you; and
2. Pay any claim for loss or damage jointly to you and the Loss Payee, as interests may appear.” (Emphasis added.)
In another section, the policy states:
“2. For Covered Property in which both you and a Loss Payee have an insurable interest:
a. We tvill pay for covered loss or damage to each Loss Payee in their order of precedence, as interests may appear.” (Emphasis added.)
The Inn was subsequently damaged in a storm. Holmes, as the insured, made a claim under the TIC policy for damage to the Inn, and TIC and Holmes agreed on the dollar value of the damage. Subsequently, TIC paid to Holmes alone the sum of $36,337.65. The insurance company’s draft was not made jointly payable to Holmes and the Wunschels, and it is apparent that the Wunschels were- completely ignored by TIC in the adjustment and payment of this loss despite being listed in the policy as loss payees.
The Wunschels claim that they had no knowledge that the Inn had been damaged by a storm and were not aware that Holmes had reported and been paid for the loss by TIC. The Wunschels further contend that Holmes did not use the money to repair the damage to the Inn but spent it on other personal obligations.
There is a conflict in the evidence about who knew what and when they knew it. Holmes testified that he notified Russell Wunschel of the damage and that an insurance check for $36,000 would be forthcoming. He also testified that he later notified Wunschel that his name was not on the insurance draft and that Russell Wunschel told him to deposit the draft in the Inn’s account. On their part, the Wunschels deny that any of the conversations related by Holmes took place and testified that they did not even find out about the loss and the insurance payment until late 1988 or early 1989.
Holmes ultimately defaulted on the lease agreement with the Wunschels. On April 1, 1988, the Wunschels and Holmes entered into a contract designated an “Agreement,” which replaced the earlier lease agreement. In the management agreement, the parties provided that for consideration “Wunschel will forgive all monies due and owing from Holmes, EXCEPT the real estate taxes for the period of time Holmes occupied the real estate.” The agreement also provided: “The only debt from Holmes to Wunschel will be the unpaid real estate taxes for the twelve months Holmes occupied said property.”
The Wunschels testified that, when they entered into the management agreement with Holmes, they did not know that the motel had been damaged by a storm and did not know that the insurance payment had been made to Holmes alone and that Holmes had failed to use that money to repair the premises. As a result, the Wunschels insist that they did not intend by that agreement to release Holmes from any obligation to repair the property or apply the insurance money to such repairs.
Ultimately, the Wunschels sued both Holmes ánd TIC. In their suit against Holmes, they alleged Holmes had breached a contractual obligation to either repair the storm damage or pay the insurance proceeds to them. For reasons which are not entirely clear, the Wunschels later dismissed the lawsuit against Holmes without prejudice.
The basis of the suit by the Wunschels against TIC was contractual. The Wunschels alleged that TIC breached its contractual obligation to pay the insurance proceeds to the loss payees, or to the loss payees and Holmes jointly, as provided by the policy.
TIC filed a motion for summary judgment against the Wunschels. The trial court sustained that motion, holding as follows: (a) The Wunschels had released Holmes from any claims they had against him for misappropriation of the insurance funds or for his failure to repair the Inn; (b) the Wunschels, as loss payees, could not sue TIC after releasing their claim against the insured; and (c) under Vargas v. Nautilus Ins. Co., 248 Kan. 881, 811 P.2d 868 (1991), the Wunschels could not sue TIC for breach of contract because they had no contractual relationship or privity with TIC.
The Wunschels have appealed the granting of summary judgment to TIC.
WAS SUMMARY JUDGMENT PROPER?
Rules which govern the propriety of the granting of a motion for summary judgment are well known and often stated:
“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. 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. [Citation omitted.] The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. [Citations omitted.] If factual issues do exist, they must be material to the case to preclude summary judgment. [Citation omitted.]” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
See Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, Syl. ¶ 1, 827 P.2d 51 (1992); McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991); Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990).
“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.’ [Citation omitted.] To defeat a properly supported motion for summary judgment, the nonmovant must come forward with ‘specific facts showing that there is a genuine issue for trial.’ [Citation omitted.]” Mark Twain Kansas City Bank & Kroh Bros. Dev. Co., 250 Kan. 754, 762, 829 F.2d 907 (1992).
We have reviewed the trial court’s grant of summary judgment in accordance with the standards set forth above. Among other things, we hold that material questions of fact remained undetermined and that summary judgment was improper.
The trial court held that the management agreement on April 11, 1988, released Holmes from all obligations flowing from the lease agreement or the insurance recovery. It then concluded that a loss payee could not release the insured and then sue the insurance company. The decision was based on the trial court’s belief that the release effectively destroyed any subrogation rights of TIC. The trial court reasoned that it would not be proper to allow the Wunschels to recover from TIC if TIC were barred from taking action against its insured.
To the extent that the so-called release is relevant to the Wunschels’ right to sue TIC, the trial court erred in granting summary judgment. The Wunschels insist that they could not have released Holmes from his obligation to repair or apply the insurance proceeds to the repair. They contend that, at the time they entered into the management contract, they did not know of the storm damage, the insurance payment, or of Holmes’ misappropriation of that payment. Their testimony is, that Holmes concealed and wrongfully withheld that information from them during the negotiations that led to the management agreement. Accordingly, they argue that the release language in the management agreement was obtained by fraud and concealment and cannot be considered to release an obligation which the Wunschels did not know existed.
It is true that Holmes testified that the Wunschels knew of the damage and knew about the insurance proceeds long before the parties signed the management agreement. It is this totally contradictory testimony which creates a material question of fact. If the Wunschels’ testimony is believed, it could be held that the management agreement did not release Holmes. If Holmes’ version is believed, an opposite conclusion can be reached. This is a material question of fact which is not resolvable on summary judgment. The trial court erred in granting summary judgment to TIC based upon the release theory set forth above. On remand, the true nature and legal effect of the management agreement must be determined by the trier of fact.
MAY THE WUNSCHELS SUE TIC FOR BREACH OF CONTRACT?
The principal issue we must resolve concerns the status of the Wunschels in their suit against TIC. The trial court held that the Wunschels cannot make a claim directly against TIC on the insurance contract. It cites a number of Kansas decisions as support, and holds that a loss payee has no contractual relationship with the insurance company and, without “privity of contract,” cannot make a direct claim under the policy. The net result of this logic reduces the Wunschels to the status of a party whose only claim is derivative from, and totally dependent on, the claim of Holmes. It places the Wunschels in a position of having no claim at all if they released the insured. Under the facts shown, the law of this state does not require such a result.
TIC argues that, even though it paid out money contrary to the express terms of its own policy, it cannot, under these facts, suffer any consequences from the breach of its own policy terms. TIC argues that, under Vargas and other Kansas cases, the Wunschels, as loss payees, have no contractual relationship with it, no privity of contract with it, and cannot sue it for breach of contract. The net result of TIC’s argument is that it may, with impunity, ignore the loss payable clause in its policy; it may ignore the loss payees, despite the express terms of its policy, and then claim it cannot be held responsible for its mistakes because the loss payees cannot sue it because they stand in the shoes of its insured. In essence, TIC seeks to use Vargas as a shield to protect it from the results of the breach of its own agreement. We hold that it cannot do so.
There is a long line of cases which hold that there is a clear difference between one who is named as a loss payee and one who is named in a standard or union mortgage clause of an insurance contract. In reading these cases, one must clearly keep in mind the issues which give rise to the decisions. If one does not do so, the language of these decisions can be given an overbroad construction. This is what TIC attempts to accomplish. The cases it relies on apply where the insurance company is attempting to defend on the basis of fraud by the policyholder or nonpayment of premium, etc. In these cases, the insurance company is occupying the high ground. It has not breached its contract; it is taking the position that its insured has done something to cause the contract to become void. The issue, then, becomes whether the party named in the “Standard Mortgage Clause” of the insurance policy can recover, even though the insured cannot. It is the law of Kansas and most other states that the standard mortgage clause operates as a separate and distinct contract between the insurer and the mortgagee. See Neises v. Solomon State Bank, 236 Kan. 767, 778, 696 P.2d 372 (1985). As a result of this doctrine, the insurance company must pay the mortgagee even though the policy is void or voidable as to its insured. On the other hand, a party who is merely named as “loss payee” does not have a special status and is not considered to have a separate contract with the insurance company. Accordingly, if the policy is void as to the insured, the loss payee cannot recover. Vargas v. Nautilus Ins. Co., 248 Kan. 881, Syl. ¶ 2. These cases hold that a loss payee has no contractual relationship with the insurance company. It is this language which TIC seizes upon to shield it from the consequences of a breaching of its own policy provisions.
TIC argues that Vargas is controlling and that the Wunschels have no contract relationship with it and cannot sue it if the insured is barred from suing it. We do not read Vargas in this light. Vargas is a case in which the insurance company was defending on the grounds that the policy was void because of fraud by its insured. The bank in Vargas was named as a loss payee and was not named in the standard mortgage clause. TIC relies on the following language in Vargas-.
“A loss payee clause is interpreted differently than a mortgage clause. A loss payee clause merely stipulates that proceeds from a policy will be payable to the named payee, but does not create a contract between the named payee and the insurer. The named payee must stand in the shoes of the insured and has no rights independent of the insured’s rights. The payee is barred from recovery if the insured is barred.” 248 Kan. 881, Syl. ¶ 2.
The law, as quoted above from Vargas, represents another stream of case law in this area but does not control the issues in the instant matter. The issues in Vargas are not similar to those now before this court. Vargas did not involve an effort by a loss payee to enforce the terms of an insurance contract. The Supreme Court clearly isolated the issue in Vargas as follows:
“The remaining issue before us concerns the Bank. The trial court granted summary judgment for the defendants and against the Bank, finding that under the terms of the policy’s mortgage clause, notice of cancellation must be sent to the mortgagee, but that the Bank was not listed as a mortgagee in the policy. The Bank was named as a loss payee.
“Under the terms of this language, if the Bank had been listed on the first page as a mortgagee, it would have had a right to notice of cancellation.
“The Bank was not listed as a mortgagee, and the question arises whether being listed as a loss payee is sufficient to require notice.” (Emphasis added.) 248 Kan. at 886-87.
In order to resolve the issue, the Supreme Court applied the general rule and held that the Bank, as a loss payee only, had no right to notice of cancellation. This is all that Vargas stands for, and we decline to extend it beyond its facts.
In the research we have done, we have found no case, and none have been cited to us, in which the distinction between a loss payee and a standard mortgage clause payee has been used to protect an insurance company from breach of the terms of its own policy. We conclude the distinction cannot be employed for that purpose.
Under the pleadings and the facts shown, the Wunschels are seeking to sue TIC as third-party beneficiaries of the insurance agreement between Holmes and TIC. We hold that this is a viable and permissible theory and, on remand, the Wunschels should be permitted to develop their third-party beneficiary action against TIC. As third-party beneficiaries, the Wunschels argue that they have a right to sue on the contract in their own right, without regard to the status of the insured. We agree. As loss payees, if the policy was void as to Holmes, it would be void as to the Wunschels, but that is not an issue in this lawsuit.
Our conclusion that the Wunschels may proceed to enforce the insurance agreement as third-party beneficiaries is not at variance with Vargas but is in harmony with that decision. The Wunschels have no contractual relationship with TIC and no privity exists. That fact is no bar to their action as third-party .beneficiaries:
“It is well established that a third person may, in his own right and name, enforce a promise made for his benefit even though he is a stranger both to the contract and to the consideration. This concept, originally an exception to the rule that no claim can be sued upon contractually unless it is a contract between the parties to the suit, has become so general and far-reaching in its consequences as to have ceased to be simply an exception, but is recognized as an affirmative rule, generally known as the third-party beneficiary doctrine, subject to certain limitations and exceptions.” (Emphasis added.) 17A Am. Jur. 2d, Contracts § 435, pp. 458-59.
This theory is well recognized in Kansas:
“. . . [Tjhere is no occasion to here write a thesis of the right of a third person to enforce a contract between other persons for his benefit. While it has not always been so the general rule, now well established in the United States, including our own jurisdiction, is that he may avail himself of such a contract when made for his benefit and maintain an action thereon notwithstanding he was a stranger thereto and paid no part of the consideration therefor or had no knowledge thereof and was not identified therein when it was made. For statements of the rule in other jurisdictions see 12 Am. Jur., Contracts, 825, § 277; 17 C.J.S., Contracts, 1121, § 519 (c); Restatement of Law, Contracts, §§ 133, 135, 139. For our latest decisions recognizing and applying such rule see Holmes v. Kalbach, 173 Kan. 736, 252 P.2d 603; In re Estate of Hilliard, 172 Kan. 552, 241 P.2d 729; Cory v. Troth, 170 Kan. 50, 223 P.2d 1008.
“[Pjrivity in the sense it was used prior to recognition of the present third party beneficiary doctrine is no longer necessary in order for the beneficiary to maintain an action or recover on a contract intended for his benefit.” Anderson v. Rexroad, 175 Kan. 676, 680-81, 266 P.2d 320 (1954).
See Cornwell v. Jespersen, 238 Kan. 110, 708 P.2d 515 (1985); French v. French, 161 Kan. 327, 167 P.2d 305 (1946).
The authorities cited above clearly provide that the Wunschels may seek to enforce a contract made for their benefit by virtue of their position as loss payees of the insurance contract) There is no requirement of privity.
It appears from the record that the “Loss Payable Provisions” of the insurance policy were made for the benefit of the Wunschels. By naming the Wunschels as loss payees under the policy, Holmes was satisfying a duty imposed upon him by his lease with the Wunschels. To establish their right to sue as third-party beneficiaries, the Wunschels must prove that the insurance contract was for their benefit. It is not required that the contract be for the exclusive benefit of the third party; it may also benefit the contracting parties. Cornwell v. Jespersen, 238 Kan. 110, Syl. ¶ 2. A loss payee under an insurance contract between two other parties clearly occupies the status of a third-party beneficiary of that insurance contract.
Although no Kansas decisions exactly in point have been provided to us, the concept of a loss payee suing on an insurance contract as a third-party beneficiary is not a novel one. In Schlehuber v. Norfolk & Dedham Mutual Fire Ins. Co., 281 So. 2d 373 (Fla. Dist. App. 1973), the Florida Court of Appeals, in determining that the loss payee could enforce the insurance contract as a third-party beneficiary, stated:
“We conclude that the language of the mortgagee payment clause which was a part of that policy represents a promise by the insurance- company to pay to the mortgagees the extent of their loss as their interests appear. This promise may be enforced by the appellant as a third party beneficiary even though he possessed no policy in his name.” 281 So. 2d at 375.
In Leasing Serv. Corp v. Am. Motor. Ins. Co., 496 So. 2d 847 (Fla. Dist. App. 1986), the Florida court stated:
“In holding that the owner could state a cause of action as a third party beneficiary, we aligned ourselves with the Third District Court of Appeal’s decision in Schlehuber v. Norfolk & Dedham. Mutual Fire Insurance Co., 281 So.2d 373 (Fla.3d DCA), cert. denied, 288 So.2d 259 (Fla. 1973), appeal after remand, 327 So.2d 891 (Fla. 3d DCA 1976), which involved a similar situation. The case before us is stronger than either of the two aforementioned cases because here the third party beneficiary is named in the insurance policy as the loss payee. We hold that the policy is not void and that LSC has standing to sue for the proceeds as a third party beneficiary of the insurance policy.” (Emphasis added.) 496 So. 2d at 849.
See Community Bank of Homestead v. American States Ins. Co., 524 So. 2d 1154 (Fla. Dist. App. 1988); Ran Invest., Inc. v. Ind. Ins. Co., 379 So. 2d 991 (Fla. Dist. App. 1980).
The owner of property bailed to another has been held to have a right of direct action against the bailee’s theft insurer for loss of bailed property as a third-party beneficiary. This right has been recognized despite the fact that the bailor was not mentioned in the policy or listed in the policy as a loss payee. See Cumis Ins. Soc., Inc. v. Republic Nat. Bank of Dallas, 480 S.W.2d 762 (Tex. Civ. App. 1972); see generally Annot., 64 A.L.R.3d 1207 (bailor’s right of action against bailee’s theft insurer).
We hold that, under the facts shown, the Wunschels, as loss payees, may proceed directly against TIC for breach of the insurance contract as third-party beneficiaries of that contract.
We hold here only that the Wunschels may proceed directly against TIC as third-party beneficiaries. We leave the merits and ultimate outcome to be determined on remand. The Wunschels will be required to provide evidence that they fall within the third-party beneficiary rules stated above. If they do so, their suit against TIC will be quite independent of any rights or liabilities of Holmes. For instance, the mere fact that the insurance company erroneously paid the policy proceeds to Holmes in an apparent breach of its own loss payable clause is not an absolute defense to the action by the Wunschels as third-party beneficiaries to recover those same benefits. Neither does the success of such an action depend upon TIC’s ability to subrogate and recover funds from Holmes. As third-party beneficiaries, the Wunschels have every right to recover damages for TIC’s breach of the loss payable clause of the contract, and, as third-party beneficiaries, their rights are not derived from the insured.
On remand, the Wunschels will have the opportunity to prove their third-party claim against TIC, and TIC will have available to it such defenses as are allowed by law.
We perceive our result to be one which protects the right of persons named as loss payees in this state. Such individuals appear to have an absolute right to rely on an insurance company adhering to the terms of its own policy. The adoption of the theory advanced by TIC would effectively eliminate any right to rely on an insurance company to pay out proceeds pursuant to its own loss payable clause. That is not a result that, in law and justice, ought to be accepted.
Reversed and remanded for proceedings consistent with this opinion.
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Rees, J.:
This is an action brought on a contract, an insurance policy issued by defendant Liberty Mutual Insurance Company. Specifically, the action has been brought on a Broad Form Comprehensive General Liability Endorsement to a Liberty Mutual Comprehensive General Liability Insurance Policy issued to MGM Foods, Inc., d/b/a Western Sizzlin’ Steak House. At all material times, defendant John Mash, MGM’s majority stockholder and president, acted for and on behalf of MGM. Liberty Mutual appeals from the trial court’s judgment entered against it following a bench trial. By its judgment, the trial court held Liberty Mutual affords coverage to MGM and Mash for their liability to certain claimants. By cross-appeal, MGM and Mash complain the trial court erroneously refused to permit submission of evidence of damages they suffered arising out of the failure of Liberty Mutual to defend the underlying claims.
Without real question, each underlying claim here involved essentially is a claim for recovery for violation of the claimant’s right of privacy, that is, for wrongful intrusion into his or her private activities. See Johnson v. Boeing Airplane Co., 175 Kan. 275, 280, 262 P.2d 808 (1953).
The factual underpinning of each underlying claim is Mash’s surreptitious and intentionally concealed recording of telephone conversations over the business telephone lines at MGM’s restaurant. No part of the content of the recorded conversations has ever been disclosed by Mash to others.
The principal question before us is whether under its insurance policy Liberty Mutual affords coverage to MGM for the claims asserted by eight MGM employees for injury allegedly arising out of violation of their right of privacy. The trial court held that coverage exists under the policy’s “advertising injury liability” coverage. That holding cannot stand.
Regardless of the construction of an insurance contract made by the trial court, on appeal the legal effect of the contract may be determined by the appellate court. Patrons Mut. Ins. Ass'n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). See NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558, 562, 775 P.2d 675, rev. denied 245 Kan. 785 (1989).
By the terms of the policy, Liberty has two duties. It has the duty to indemnify and the duty to defend. Those duties are set forth in the following insuring agreement language of the policy:
“II ....
“(A) [Liberty Mutual] will pay on behalf of [MGM] all sums which [MGM] shall become legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies, sustained by any person . . . and arising out of the conduct of [MGM’s] business . . . and [Liberty Mutual] shall have the . . . duty to defend any suit against [MGM] seeking damages on account of such injury, even if any of the allegations of the suit are groundless, false or fraudulent . . . .” (Emphasis added.)
What is “advertising injury” for which the policy provides coverage? The answer is found in the policy’s recited definition of the term: “ ‘Advertising injury’ means injury arising out of an offense . . . occurring in the course of [MGM’s] advertising activities, if such injury arises out of . . . violation of right of privacy . . . .” (Emphasis added.)
Are the claims of MGM’s employees claims for “advertising injury” insured against under the policy? Are they claims of the sort and nature for which Liberty Mutual contractually bound itself to indemnify and defend? We conclude that the underlying claims are not claims for advertising injury for which the policy affords coverage. Why? Because the events giving rise to the underlying claims did not occur “in the course of [MGM’s] advertising activities.”
In Lazarra Oil Co. v. Columbia Cas. Co., 683 F. Supp. 777, 778-80 (M.D. Fla. 1988), this is said:
“The [insurance] contracts . . . provide that the Defendants will provide coverage for, i.e., defend and indemnify, Plaintiffs in the event of personal or advertising injury ... which arises out of an ‘occurrence.’ . . . ‘Advertising injury’ is defined as an injury arising out of a tort committed in the course of the Plaintiff’s advertising activities, if such injury arises out of . . . defamation, [or] violation of right of privacy ....
“. . . That the [plaintiffs in the underlying litigation] are seeking solely to recover for pure economic losses, and not for personal or advertising injury or property damage (as those terms are defined in the insurance contracts), can be seen from a careful reading of their amended complaint ....
“[The .insureds’] contention that an ‘advertising injury’ was alleged by the [plaintiffs in the underlying litigation] is . . . without merit. The insurance contracts at issue provide for coverage in the event that [the insureds’] advertising causes some type of injury such as defamation. There is absolutely no allegation in the [underlying litigation] complaint that such an injury ever resulted from any advertising done by [the insureds]. Advertising done by the [plaintiffs in the underlying litigation], whether voluntary or impermissibly compelled, is of no consequence with regard to the insurance policies at issue here.” (Emphasis added.)
In Int’l Ins. Co. v. Florists’ Mut. Ins. Co., 201 Ill. App. 3d 428, 430-33, 559 N.E.2d 7 (1990), this appears:
“The relevant provisions of the insurance policy . . . read in part as follows:
‘ADVERTISING INJURY
means . . . invasion of rights of privacy; which arise out of [the insured’s] advertising activities.’
“[Plaintiff] maintains that the injury alleged in the underlying Federal complaint triggered Florists’ duty to defend because the injury, unfair competition, was causally connected to advertising activity. . . .
“. . . Florists asserts that by definition, advertising connotes marketing activity, or publication to the public. . . .
“. . . The term ‘advertising’ has been held to refer to the widespread distribution of promotional material to the public at large. Letters sent to advertisers from a magazine publisher disparaging another publisher’s circulation guarantees are not related to advertising activities. [Citation omitted.] Neither are 400 pamphlets circulated to a company’s distributors to aid them in educating the salespersons to solicit purchase orders for the company’s product. [Citation omitted.] Similarly, an in-house rule prescribing conditions for processing floral arrangements that have been advertised in a particular way is not related to advertising activity such that an injury attributable to the rule can be considered an advertising injury.”
See also Fox Chemical Co., Inc. v. Great Am. Ins. Co., 264 N.W.2d 385, 386 (Minn. 1978), where the term “advertising” is discussed in the context of an exclusionary clause.
In Playboy Enterprises v. St. Paul Fire & Marine Ins., 769 F.2d 425, 428 (7th Cir. 1985), where the subject was coverage for a libel claim against the insured and where Fox was followed, it is said:
“The term ‘advertising’ has been defined as follows: ‘the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public especially by means of printed or broadcast paid announcements.’ Webster s Third New International Dictionary of the English Language Unabridged 31 (1963). This definition requires that the presentation of the item to be sold or approved be made in a medium directed to the public at large. The district court similarly concluded that the term ‘advertising’ as used in the exclusionary provision referred to promotional material directed to the public at large, especially since the term is used in conjunction with two other terms that connote widespread public dissemination, “broadcasting’ and ‘telecasting.’ ”
The foregoing authorities are persuasive. We find that, in sum, the term “advertising” as used in Liberty Mutual’s policy means public or at least widely disseminated solicitation or promotion.
Regrettably, the trial court’s findings of fact and conclusions of law are insufficient for us to meaningfully review its reasoning in support of its decision that Liberty Mutual affords coverage by operation of the policy’s “advertising injury liability” coverage provisions. Nonetheless, on our own consideration and analysis, we reason and find that Liberty Mutual does not afford that coverage. There is not a scintilla, let alone a nanogram, of evidence linking Mash’s alleged violation of the claimants’ right of privacy to advertising activity of MGM. Again, the underlying claims did not occur in the course of advertising activity of MGM.
MGM suggests that if Liberty Mutual’s advertising injury coverage does not apply, it remains that the trial court’s judgment should be affirmed on the principle that affirmance is called for where the trial court was correct even though the grounds upon which it professed to proceed are not tenable. Johnson v. Boeing Airplane Co., 175 Kan. at 283; see Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985); Carpenter v. Riley, 234 Kan. 758, 765, 675 P.2d 900 (1984).
MGM proposes that coverage is available to it under the policy’s personal injury liability coverage provisions even though coverage under the policy’s advertising injury liability coverage provisions may not be available.
The policy provides:
“ ‘Personal injury’ means injuries arising out of
(3) a publication or utterance
(b) in violation of an individual’s right of privacy; except publications or utterances in the course of or related to advertising, broadcasting, publishing or telecasting activities conducted by or on behalf of [MGM] shall not be deemed personal injury.”
By the plain language of the policy definition of “personal injury” and the policy’s insuring agreement, “personal injury liability” coverage is unavailable to MGM. In regard to the underlying claims, there is no claim of injury arising out of an MGM publication or utterance whether or not “in the course of or related to advertising . . . activities conducted by or on behalf of [MGM].” There was no disclosure by Mash to others of any part of the recorded conversations.
As a part of its judgment, the trial court entered an award in favor of MGM and against Liberty Mutual for attorney fees pursuant to K.S.A. 40-256, which authorizes an attorney fees award where the action is on an insurance policy and the insurer against whom recovery is granted refused to pay without just cause or excuse. The attorney fees award against Liberty Mutual cannot now stand and must be reversed. An award for attorney fees pursuant to K.S.A. 40-256 may not be granted where the purported insured is unsuccessful in his or her action against the purported insurer. Girrens v. Farm Bureau Mut. Ins. Co., 238 Kan. 670, 681, 715 P.2d 389 (1986).
Whether attorney fees may have been recoverable by MGM against Liberty Mutual under the general insuring agreement provision imposing upon Liberty Mutual the duty to defend is not an issue raised in the trial court, addressed by the trial court, or raised on appeal. That being so, the question is not before us for resolution.
In view of our stated conclusions, we need not and do not address the other questions raised as issues for our consideration either on the appeal or the cross-appeal.
Reversed on appeal. Affirmed on cross-appeal.
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Wahl, J.:
This decision considers the consolidated appeals filed by Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau). In Case No. 66,959, the appeal is from numerous alleged trial errors and the jury’s verdict finding Farm Bureau liable for additional personal injury protection (PIP) benefits in the form of additional wage loss benefits, substitution benefits, and rehabilitation benefits. In Case No. 67,651, the appeal is from the trial court’s judgment granting interest on the judgment, future medical benefits, and attorney fees and expenses to Cathy R. Miner.
On or about August 6, 1988, Miner and her husband, Bob Miner, were injured in a one-car accident when a deer ran in front of the vehicle Miner was driving, causing her to swerve and hit an embankment. Although not treated on the night of the accident, Miner later began having shooting pains in the neck and severe headaches. She sought treatment from Dr. Farr, a chiropractor, but was later referred to her family physician, Dr. Eplee, for continued treatment. During the course of the next few years, Miner was referred to many doctors and programs for treatment.
On September 4, 1988, Miner sent an application to Farm Bureau for loss of wages and medical benefits under the PIP provision of her automobile policy. Although Miner was self-employed at the time, managing the Whiskey Creek Tavern, she notified Farm Bureau that her monthly salary was $1,000. Miner was informed that Farm Bureau would pay 85% of the cost of replacing Miner but needed verification of what the person was paid and a letter from Miner’s doctor verifying that she was medically disabled from the accident and unable to work. Thereafter, Miner submitted, as documentation of her wage loss, an affidavit signed by Miner and Mary Navinsky, Miner’s mother, to show that Navinsky was hired to replace Miner at the tavern at $5 per hour or $300 per week. Miner continued to send Farm Bureau statements showing Navinsky’s work hours on a regular basis as evidence of wage loss. Farm Bureau paid lost wages to Miner based on the hours turned in at the statutory rate of 85% of the $5 per hour claimed to be paid to Navinsky. Farm Bureau continued to pay Miner’s medical expenses and wage loss until it was informed by Dr. Kelly that Miner had no work restrictions and could work. Based on Dr. Kelly’s report, Farm Bureau sent Miner a letter advising her that her wage loss benefits would be terminated as of July 7, 1989. Farm Bureau resumed paying wage loss benefits on September 5, 1989, after receiving a letter from Dr. Eplee stating Miner had suffered a relapse. Finally, based on the opinions of Drs. Kelly, Maeda, Shriwise, Eplee, and Reddy, Farm Bureau terminated the wage loss benefits , a second time in November of 1989. ...
On April 27, 1990, Miner filed suit against Farm Bureau, , claiming Farm Bureau refused to pay PIP benefits for medical expenses, wage loss, substitution services, and rehabilitation services pursuant to Miner’s policy with Farm Bureau. A trial by jury resulted in a verdict against Farm Bureau in the amounts of $26,000 for wage loss, $4,500 for rehabilitation benefits, and $2,700 for substitution services, for a total verdict of $33,200. No amount was allowed for medical expenses. Thereafter, the trial court denied Farm Bureau’s motion for judgment notwithstanding the verdict or in the alternative for a new trial and granted Miner’s motion for interest, attorney fees, and clarification of future medical expenses. On July 31, 1991, Farm Bureau timely appealed from all judgments entered against it by the jury and trial court. After the first appeal was filed, the trial court denied Farm Bureau’s motion for reconsideration of attorney fees. Farm Bureau appealed that denial also, and the appeals are consolidated before this court.
Farm Bureau argues it was error for the trial court to deny its motion for directed verdict and allow Miner’s claims for additional PIP benefits to go to the jury because the claims were based on the company’s failure to pay those benefits while Miner failed to establish a right to claim the additional benefits. Farm Bureau further argues the trial court erroneously allowed Miner to present her Exhibit No. 35, a letter from Bob Miner to Farm Bureau, as a request for rehabilitation benefits when Miner had failed to respond to Farm Bureau’s request for admissions and was thereby deemed to have admitted that no such request for rehabilitation benefits was made. Farm Bureau also contends the filing of the lawsuit does not fulfill the required notice for benefits needed under the no-fault law, K.S.A. 40-3110, and that Miner needed to present written notice and evidence of the amount of her loss on each benefit claimed before filing suit.
Miner contends it was not error for the trial court to allow her to present as evidence her Exhibits Nos. 33, 34, and 35 in spite of her failure to respond to the admissions because it is within the discretion of the trial court, under K.S.A. 60-236(b), to permit a withdrawal or amendment to the admissions where the party who obtained the admission has not proved the withdrawal or amendment prejudices that party. The parties’ arguments regarding the appropriateness of the denial of Farm Bureau’s motion for directed verdict will be considered under each loss benefit discussion.
Farm Bureau argues its motion for a directed verdict should have been sustained because Miner gave no written notice, substantiated by documented proof of cost incurred, to Farm Bureau of any claim for substitution and rehabilitation benefits or underpayment of wage loss before filing the lawsuit. The required notice is set out in K.S.A. 40-3110:
“(a) Except for benefits payable under any workmen’s compensation law, which shall be credited against the personal injury protection benefits provided by subsection (f) of K.S.A. 40-3107, personal injury protection benefits due from an insurer or self-insurer under this act shall be primary and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued in compliance with this act. An insurer or self-insurer may require written notice to be given as soon as practicable after an accident involving a motor vehicle with respect to which the insurer’s policy of motor vehicle liability insurance affords the coverage required by this act. No claim for personal injury protection benefits may be made after two (2) years from the date of the injury.
“(b) Personal injury protection benefits payable under this act shall be overdue if not paid within thirty (30) days after the insurer or self-insurer is furnished written notice of the fact of a covered loss and of the amount of same, except that disability benefits payable under this act shall be paid not less than every two (2) weeks after such notice. If such written notice is not furnished as to the entire claim, any partial amounts supported by written notice is overdue if not paid within thirty (30) days after such written notice is furnished. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within thirty (30) days after such written notice is so furnished Provided, That no such payment shall be deemed overdue where the insurer or self-insurer has reasonable proof to establish that it is not responsible for the payment, notwithstanding that written notice has been furnished. For the purpose of calculating the extent to which any personal injury protection benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery. All overdue payments shall bear simple interest at the rate of eighteen percent (18%) per annum.” (Emphasis added.)
To determine whether the filing of a lawsuit may be considered to be the giving of notice of a claim for PIP benefits under the statute requires this court to construe the legislative intent in enacting K.S.A. 40-3110. Interpretation of a statute is a question of law wherein appellate courts are not bound by the construction of the trial court. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). “[T]he intent of the legislature governs when that intent can be ascertained.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 1, 829 P.2d 561 (1992). “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, 250 Kan. 621, Syl. ¶ 2. The “court has no right to enlarge the scope of the statute or to amend it by judicial interpretation. [Citation omitted.]” Coe v. Security National Ins. Co., 228 Kan. 624, 629, 620 P.2d 1108 (1980).
The language in K.S.A. 40-3110 is not ambiguous. As set out in subsection (a), the insurer does not become liable for payment until it has received notice of the claim by “reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy,” and the insurer may require “written notice to be given as soon as practicable after an accident.” Subsection (b) provides that, where the entire claim is not submitted, the payment for only the losses claimed is due within 30 days, with any part or all of the remainder of the claim being payable upon the submitting of supporting written notice from the claimant.
The language of K.S.A. 40-3110 states quite clearly that the legislature intended for a claimant not only to notify the insurer of the existence of the injury and possible claim, but also to notify the insurer of each benefit loss sustained and to provide reasonable proof of the accrual of that loss before any liability attaches on the part of the insurer. The purpose of requiring a claimant to notify the insurer of the claimed benefits is “to insure prompt payment for loss and to avoid the necessity and delay of litigation.” Burriss v. Northern Assurance Co. of America, 236 Kan. 326, 331, 691 P.2d 10 (1984), cert. denied 474 U.S. 821 (1985). It is contrary to the plain language of the statute and its puipose of avoiding litigation to hold that a claimant need only give an insurer notice of his injury and possible claims. A claimant must also provide the statutorily required notice of the benefits claimed and provide supporting documentation evidencing the losses incurred before bringing action against the insurer on those claims.
“Notice by one party to another is frequently a condition precedent to the right to bring an action. Such notice may be required by express statutory enactment or by express agreement of the parties, or it may be implied by law.” 1 Am. Jur. 2d, Actions § 81, p. 610. Accord Bell v. Dennis, 158 Kan. 35, 37, 144 P.2d 938 (1944).
“The general rule is clear that where a demand is an integral part of a cause of action, that is, where the duty to pay, to deliver the property in question, or to do some other act which constitutes an essential basis of the plaintiff’s claim does not arise until after demand, then the demand must be made before the action is commenced.” 1 Am. Jur. 2d, Actions § 84, p. 612.
Accord Alliance Life Ins. Co. v. Ulysses Volunteer Firemans Relief Ass'n., 215 Kan. 937, Syl. ¶ 2, 529 P.2d 171 (1974); Sloan v. Employers Casualty Ins. Co., 214 Kan. 443, Syl. ¶ 2, 521 P.2d 249 (1974).
“A cause of action must exist and be complete before an action can be commenced; suits commenced before the cause of action stated in the pleadings arises will generally be dismissed when proper objection is taken; if a plaintiff has no valid and subsisting title or right to the subject of his action at the time of its commencement, he may not by the subsequent acquisition or perfection of such right or title remedy the defect so as to succeed in the action. The subsequent occurrence of the conditions or facts necessary to make the cause of action complete will not avail the plaintiff in maintaining his suit. The rights and liabilities of the parties — that is, their rights to an action or to judgment or relief- — depend upon the facts as they existed at the time of the commencement of the action, and not at the time of trial. And it has been said that the nonexistence of a cause of action when the suit was begun cannot be cured by an amendment to the complaint or declaration to cover the subsequently accruing right.” 1 Am. Jur. 2d, Actions § 87, p. 616. (Emphasis added.)
Evidence at trial showed no demand by Miner to Farm Bureau for reimbursement of substitution expenses, rehabilitation expenses, or recovery of amounts of underpaid lost wages before instituting this action.
The standard of review for directed verdict issues on appeal requires this court “to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought.” Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 209, 695 P.2d 1293, rev. denied 237 Kan. 886 (1985). However, where the insured has not given the insurer written notice of the benefit sought, along with reasonable proof of the loss, the amount of the loss, and the expenses incurred which are covered by the terms of the policy issued, no cause of action has arisen and suit may not be brought regarding that particular benefit loss. The filing of a petition would be the last step taken by a claimant after the statutory notice has been given and the insurer has refused to make payment on the loss benefit submitted in compliance with K.S.A. 40-3110.
Even though public policy requires that all issues in a lawsuit should be tried in one trial, Guillan v. Watts, 249 Kan. 606, 616, 822 P.2d 582 (1991), the issue here cannot arise until damage is sustained, i.e., the demand has been made and payment has been refused. The trial court’s holding that the filing of the action gave notice of the claims in compliance with K.S.A. 40-3110 was in error. The trial court’s denial of a directed verdict as to any claims not submitted to Farm Bureau with documentation of loss incurred is error and will be discussed in considering each benefit issue.
Farm Bureau argues it was error to allow Miner to sue for additional wage loss benefits under PIP provisions for time periods already submitted and paid for. Miner claims additional payment for those periods based upon hours allegedly worked by Bob Miner and Navinsky. Farm Bureau contends Bob Miner’s hours cannot be claimed because Miner did not meet her burden to provide written notice and documentation of those hours. Farm Bureau claims the additional hours allegedly worked by Navinsky should also be denied for failure of Miner to give notice of the claim and request payment. Lastly, Farm Bureau argues that Miner is not due any wage loss benefits after November 1989 because Farm Bureau never received any medical reports verifying her inability to work after that date.
Under the PIP provisions of Farm Bureau’s insurance policy with Miner, Farm Bureau would pay her 85% of her monthly wages up to $1,750 for a period of 36 months. At trial, Miner admitted that she and her husband put together the statements submitted to the company regarding her wage loss. She admitted Farm Bureau paid her for all wage statements submitted based on the itemization of hours she gave as Navinsky’s hours each week at $5 an hour. Although Bob Miner prepared the statement of wage loss expense signed by Miner and submitted to Farm Bureau, he admitted that he had never submitted anything to Farm Bureau for hours he allegedly worked. The application for benefits submitted by Miner showed her monthly income to be $1,000 a month. That amount is commensurate with the amount which she claimed was owed based on Navinsky’s replacing her each month. Farm Bureau paid wage loss benefits to Miner on the amounts submitted, and Miner never complained of being underpaid.
Any claim for wage loss based on hours worked by Bob Miner should have been excluded from jury consideration because he never submitted notice, as required by the statute, that Miner was seeking wage loss benefits based on his replacement services, nor did he submit documentation to support his claim of hours worked for Miner. Miner’s claim for additional payment of wage loss benefits for months already paid by Farm Bureau should also have been excluded for the same reason. Miner admitted all wage loss claims submitted to Farm Bureau were paid and no notice or request for additional amounts for those time periods was ever submitted to Farm Bureau.
Just as “a party may not invite error and then complain of that error on appeal,” Manley v. Wichita Business College, 237 Kan. 427, 438, 701 P.2d 893 (1985), so an insured may not submit notice of claim with supporting documentation regarding amounts owed and then, after the insurer relies on it and pays that amount, claim error and file an action against the insurer claiming underpayment of the claim.
After Farm Bureau’s termination of wage loss benefits based on the doctors’ reports, Miner should have sought reinstatement of the benefits by submitting verification of her disability. To have wage loss benefits reinstated, Miner needed to show that “potential employment was accessible, obtainable and commensurate with her skills, educational background, work experience and any other relevant employment criteria” but her injury was causing her continued inability to work. Morgan v. State Farm Mut. Auto. Ins. Co., 5 Kan. App. 2d 135, 142, 613 P.2d 684 (1980); K.S.A. 1991 Supp. 40-3103(b); K.S.A. 40-3110(a). Although evidence was presented that Miner had no work restrictions placed on her, the jury also had evidence before it showing that Miner had an eighth grade education, that she was trying to get her G.E.D. to enable her to be more employable but had so far failed, and that just about anything she had tried to do irritated her condition and' required her to take a 20 to 30 minute break every hour. Miner testified she did not know any skill other than waitress duties. Dr. Eplee attempted to encourage Miner to go back to work, but the attempt was unsuccessful. Miner had a 14% to 38% strength loss in her left shoulder in 1991. Don Vander Vegt, a vocational consultant, testified that, based on the weight lifting restrictions of 15 to 20 pounds for Miner, the recommendation she avoid bending, and her pre- and post-injury employment skills, Miner could do only 3.3% of the jobs in the labor market.
Farm Bureau argues that, because Miner did not submit an application for substitution benefits prior to filing this lawsuit as required by the statute and the insurance policy, she was not entitled to those benefits and the trial court erred in letting this issue go to the jury. Miner admits she did not request payment of substitution benefits from Farm Bureau prior to filing this action. She contends, however, her failure to submit the required application is not fatal because Farm Bureau did not inform her of the availability of the substitution benefits and further failed to investigate whether she needed that coverage.
Kansas has long held it to be “the duty of every contracting party to learn and know the contents of a contract before he signs and delivers it.” Bailey v. Talbert, 179 Kan. 169, Syl. ¶ 4, 294 P.2d 220 (1956). “As a result of this duty, a person who signs a written contract is bound by its terms regardless of his or her failure to read and understand its terms.” Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, 299, 736 P.2d 888 (1987). See Vanier v. Ponsoldt, 251 Kan. 88, Syl. ¶ 1, 833 P.2d 949 (1992). Only where there is a mutual mistake as to the contents and meaning of the contract is this rule inapplicable. Rosenbaum, 241 Kan. at 299. No mutual mistake is alleged in this case, only ignorance of the terms by Miner.
Even where a contracting party is unable to read, the party is under a duty to have a reliable person read and explain the contract to them before signing it. Squires v. Woodbury, 5 Kan. App. 2d 596, 599, 621 P.2d 443 (1980), rev. denied 229 Kan. 671 (1981). The “failure to obtain a reading and explanation of it [before signing] is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.” Maltby v. Sumner, 169 Kan. 417, Syl. ¶ 5, 219 P.2d 395 (1950). A party to the contract owes this duty to know and understand the contents of the contract before signing it “to the other party to the contract because the latter may and probably will pay his money and act in reliance upon the agreement.” Bailey, 179 Kan. 169, Syl. ¶ 4. Enforcement of the rule holding the contracting party to the duty of knowing the contents of the contract before signing gives stability to written contracts and removes the temptation and possibility of perjury at a later date to vary the terms of the instrument. Maltby, 169 Kan. at 429.
Where insurance policies are not ambiguous, they are to “be enforced as written so long as the terms do not conflict with pertinent statutes or public policy.” House v. American Fam. Mut. Ins. Co., 251 Kan. 419, 427, 837 P.2d 391 (1992). A review of the PIP provisions of Farm Bureau s policy with Miner reveals it to be in compliance with the provisions of K.S.A. 1991 Supp. 40-3103 and K.S.A. 40-3110. The policy contains a comprehen sive, but clearly understandable, table of contents directing the insured to the PIP provisions of the policy. The policy pages describing the PIP benefits, including substitution services and rehabilitation expenses benefits, are clearly defined, with the procedure for obtaining any benefit covered set out in paragraph 2 under the payments section.
The policy clearly states Miner must supply written notice of a covered loss and the amount. Miner admitted at trial that she did not give written notice or supporting documentation to Farm Bureau of her claim for substitution benefits before or after the filing of this action. Furthermore, even after her attorney told her about the benefits, she did not submit a claim to Farm Bureau for them, nor did she direct her attorney to contact Farm Bureau as to the amounts to be reimbursed. Bob Miner also testified that, after their attorney informed them of the substitution and rehabilitation benefits, neither of them brought it to Farm Bureau’s attention, prepared documentation concerning the accrual of the benefits, or sent anything to Farm Bureau pertaining to those benefits.
Both the statute and the insurance policy place the burden on the insured to give written notice and supporting documentation to the insurer before liability for payment accrues. K.S.A. 40-3110. Under K.S.A. 40-3110(a), no claim for PIP benefits may be made after two years from the date of injury. The record shows trial was held on April 23, 1991, almost two years and nine months after the date of injury, and Miner knowingly failed to prepare and submit written notice of her claim for substitution benefits. Such an omission is contrary to the statute and the policy provisions. Miner is barred from raising that issue at trial.
Miner argues Farm Bureau should have informed her of all covered losses and investigated the possibility of the substitution losses, citing Dewey v. Allstate Ins. Co., 588 F. Supp. 479, 481 (1982), aff’d 739 F.2d 1494 (1984). This case is distinguishable from Dewey. In Dewey, the court was not considering the insurer’s duty to investigate whether the claimant was entitled to different kinds of benefits under the policy. Instead, the court examined the denial of specific benefits after request by the insured, wherein notice and supporting documentation were supplied by the claimant, but the insurer, without investigating, denied liability. Weighing heavily against the insurer in Dewey was the fact that, in denying liability of the claim, it refused to accept the claimant’s proof of loss, would not say what it would accept, and sought no information on its own to verify or refute the claimed loss already submitted. 588 F. Supp. at 481-82. In this case, Miner never submitted a claim for substitution benefits which Farm Bureau would then have had a duty either to pay or investigate before denying.
It was error for the trial court to allow Miner to raise the issue of substitution benefits at trial.
The parties’ arguments concerning rehabilitation benefits are essentially the same as the arguments on substitution benefits. In addition, Miner argues that, because some of the reports sent to Farm Bureau included references to a potential need for rehabilitation services, Farm Bureau had a duty to inform Miner of the benefit coverage. Again, Miner had a duty to know and understand the contents of the policy. The policy specifically states: “If the insured asks, we will obtain the services, therapy or training.” Miner did not do so.
The record shows that at no time did Miner or her husband submit written notice or documentation that rehabilitation costs had been incurred, nor did they request Farm Bureau to procure such services for Miner. In fact, at the time of trial, two years and nine months after the accident, Miner still did not know what she wanted to do in terms of future employment and had not contacted Farm Bureau about the rehabilitation possibilities.
It was error for the trial court to allow the rehabilitation claim to go before the jury.
It is further noted that the effect of allowing the substitution and rehabilitation expense claims to go before the jury when no claim for those benefits had ever been filed and no cost incurred circumvents the statutory notice requirement and the two-year statute of limitations imposed under K.S.A. 40-3110 for initiating a claim for those benefits.
Farm Bureau claims numerous errors based on the trial court’s instructions to the jury. On appeal,
“[n]o party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of
the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). Jury instructions are to be considered together and read as a whole, without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. [Citation omitted.]” Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 355, 837 P.2d 330 (1992).
“An instruction is clearly erroneous when 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.” Noon v. Smith, 16 Kan. App. 2d 818, Syl. ¶ 2, 829 P.2d 922 (1992).
The trial court’s jury instruction No. 3 read as follows:
“The plaintiff claims she has been denied personal injury protection benefits under her automobile insurance policy with the defendant.
“The plaintiff claims she is entitled to payment for lost earnings in an amount not to exceed $45,411.34.
“The plaintiff claims she is entitled to substitution benefits in an amount not to exceed $9,125.
“The plaintiff claims she is entitled to payment for rehabilitation benefits in an amount not to exceed $4,500.
“The plaintiff claims she is entitled to payment for additional medical expenses in the amount of $299.
“The plaintiff has the burden to prove her claims are more probably true than not true.”
Farm Bureau objected to this instruction at trial because the claim for wage loss included amounts for time periods already submitted and paid and was is in excess of those amounts originally claimed. Farm Bureau further objected to the instruction because Miner did not submit any written notices claiming substitution and rehabilitation benefits. As already held herein, those issues were improperly brought before the jury and the instruction to the jury regarding those claims was clearly in error.
Farm Bureau also contends this instruction is based on inadmissible evidence contained in Miner’s exhibit No. 33. Miner’s exhibit No. 33 is not contained in the record on appeal. The contention is moot, however, in light of the clearly erroneous nature of the instruction.
The trial court’s jury instruction No. 6 read as follows:
“The obligation of the insurance company is governed by the provisions of the policy.
“Words used in an insurance policy are to be read and understood in their ordinary and usual meaning.
“The terms of the insurance policy are susceptible of more than one meaning. Therefore, you must give the policy provisions that meaning which is most favorable to the policyholder.”
Farm Bureau objected to this instruction at trial and argues here this instruction is erroneous because no evidence of ambiguity concerning the insurance contract was introduced at trial. We agree. The policy provisions are very clear and understandable. No issue was raised, nor was any evidence presented at trial, that there was an ambiguity in the policy provisions. It was the trial court’s duty simply to instruct the jury to enforce the contract as written. See Bell v. Patrons Mut. Ins. Ass’n, 15 Kan. App. 2d 791, 794, 816 P.2d 407, rev. denied 249 Kan. 775 (1991). It was not a function of the trial court to create an ambiguity requiring an interpretation favorable to the insured when no ambiguity existed. Bell, 15 Kan. App. 2d at 794. By instructing the jury the policy provisions were ambiguous and to be interpreted in favor of Miner, the trial court prejudiced Farm Bureau and committed error.
Jury instruction No. 7 was given as follows:
“If you find the plaintiff has sustained injuries from the accident that made her unable to work for money in an available and appropriate job, you may award the following:
a. Loss of earnings: $45,411.34
b. Substitution Expenses: $9,125
c. Rehabilitation Expenses: $4,500
d. Medical Expenses: $299”
Farm Bureau objected to this instruction at trial as a misstatement of the law and the policy because it instructed the jury it could award substitution expenses, rehabilitation expenses, and medical expenses to Miner if it found she was unable to work in an appropriate and available job as a result of the accident. Under K.S.A. 1991 Supp. 40-3103(k), (r), and (w), such an instruction is clearly a misstatement of the law. It is also contrary to the accrual of those rights under the insurance policy. The instruction misdirects the jurors in their duty to consider whether valid substitution, rehabilitation, and medical benefits relating to the accident were incurred. By misdirecting the jury to determine liability on a basis not set out by statute or the policy, the trial court prejudiced Farm Bureau.
The giving of this instruction was error not only for the reasons just stated, but also because the issues of substitution expenses, rehabilitation expenses, and underpayment of wage loss, which were included in the amount of wage loss listed in the instruction, were erroneously presented to the jury, as we have already held.
Jury instruction No. 8 read as follows: “If you find the plaintiff has, as a result of her accident, sustained the loss of monthly earnings due to her inability to work for money in an available and appropriate job, you may award her the amount of such loss not to exceed $45,411.34.”
Farm Bureau objected to this instruction at trial because the amount of wage loss was incorrectly stated. This instruction is erroneous and prejudicial to Farm Bureau for the same reasons set out in our consideration of instruction No. 3.
The trial court’s instruction No. 9 read as follows: “In order to recover personal injury protection benefits for loss of monthly earnings, the plaintiff must prove: 1. The lost earnings are due to her inability to engage in an available and appropriate job; and 2. This inability is the result of her injury.”
At trial, Farm Bureau objected to this instruction because it did not read “gainful activity” as set out in K.S.A. 1991 Supp. 40-3103(b) and Morgan v. State Farm Mut. Auto. Ins. Co., 5 Kan. App. 2d 135, 138-39, 613 P.2d 684 (1980). The instruction mirrors the language in Farm Bureau’s policy with Miner. Although it does not use the term “gainful activity,” the essence of the instruction is substantially consistent with the statute and the proof required under the policy. It was not error to give instruction No. 9.
Jury instruction No. 10 read:
“In determining the loss of monthly earnings for someone self-employed, you must look at what the person actually lost.
“The key to making this determination is to look at the value of the service performed in relation to the business. This is necessary because the value of the services are worth something and, therefore, are compensable.
“It appears possible for the business of a self-employed person to actually suffer a loss for the year and yet have the individual be entitled to benefits.
To calculate what was lost, you can determine what it would cost to hire someone to do the work the injured person performed.
“In determining the loss of monthly earnings, you should consider this case on the basis of what would be the replacement cost to hire another person to take the plaintiff’s place and perform similar type of work.”
At trial, Farm Bureau obj'ected to this instruction, requesting the court to give the instruction Farm Bureau had submitted. Farm Bureau’s proffered instruction is not in the record on appeal and cannot be considered. However, both Farm Bureau and Miner agreed the basis for the objection was that the instruction as given erroneously instructed the jury on how to calculate Miner’s wage loss. Dewey v. Allstate Ins. Co., 525 F. Supp. 857, 866 (1981), to which Farm Bureau refers, states: “ ‘To calculate what was lost, insurers can determine what it would cost to hire someone to do the work the injured person performed.’ ” The instruction given essentially states the same thing. Evidence was presented by Farm Bureau at trial that Miner’s wage loss benefits were calculated on the cost of $5 per hour to hire Navinsky to replace Miner at the tavern. In light of the evidence at trial and the language in Dewey, the giving of the instruction was not error.
By instruction No. 11, the trial court instructed the jury in its consideration of substitution benefits, and instruction No. 12 pertained to the award for rehabilitation benefits. Because these benefits were improperly before the jury, as we have already held, the giving of these instructions was clearly erroneous and prejudicial to Farm Bureau.
As a final comment on the jury instructions given, it is noted that, because the amounts claimed for underpaid wage loss, substitution benefits, and rehabilitation benefits were improperly before the jury, the trial court’s instruction No. 14 defining those terms was also in error.
Farm Bureau contends that, under K.S.A. 40-3110(b) and Coe v. Security National Ins. Co., 228 Kan. 624, 630, 620 P.2d 1108 (1980), it is not liable for interest payments unless it has refused to pay a claim without good cause. Farm Bureau argues that no interest payments were due on the amounts claimed for rehabilitation expenses, substitution expenses, and underpayment of wage loss amounts because no claims were submitted for those amounts thereby making them due and payable. Farm Bureau further contends that no interest is due for wage loss benefits not paid after the termination of that benefit because it relied on the reports of several doctors in concluding Miner was no longer entitled to those benefits.
Miner argues interest is appropriate because Farm Bureau made no attempt to alert her to the possibility of substitution and rehabilitation expense benefits and failed to investigate the issue of appropriate or available activity for Miner or to determine the true facts of the controversy. Furthermore, Miner asserts that, because the trial court treated the filing of the petition as a written demand for all the benefits asserted in the petition, interest should be awarded from that date. Miner also contends that, because several bills were presented to Farm Bureau for payments which were overdue, interest was appropriate.
This court has recognized that the award of interest is “a matter of judicial discretion subject to being overruled only when there is an abuse of discretion.” Crawford v. Prudential Ins. Co. of America, 245 Kan. 724, 737, 783 P.2d 900 (1989).
Under K.S.A. 40-3110(b), “the insurer becomes liable for payment of PIP benefits once the insured has provided ‘reasonable proof’ of the loss itself and the amount of the loss.” DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 518, 661 P.2d 812 (1983).
In granting statutory interest to Miner, the trial court stated:
“In our particular case, of course, like the DiBassie case, there was no need of reasonable proof of the right of the plaintiff to recover the benefits since the insurance company had paid some benefits. However, the Court finds the insurance company was unreasonable in stopping the payment of benefits when they did.” (Emphasis added.)
The trial court also found that, at the time the wage loss benefits were cut off, Miner had filed requests for wage loss and rehabilitation services up to the date the petition was filed. The trial court then held that Farm Bureau did not investigate the circumstances enough and ordered interest against Farm Bureau from April 2, 1990, 25 days before the action was filed.
DiBassie, upon which the trial court and Miner rely, is distinguishable from the case at hand. In DiBassie, the insured had furnished written notice of the injury and benefit claimed, along with an itemized bill for medical treatments from the University of Kansas Medical Center. The insurer refused to pay, even though it had received the police accident report, an itemized hospital bill detailing treatment received and clearly coinciding with the date of the accident, and a signed consent form for release of claimant’s medical records. Thus, the court found the claimant had supplied reasonable proof requiring the insurer to pay the benefits. The notice sent by the claimant, on its face, did not create a good faith controversy whereby the insurer would be relieved of payment. 8 Kan. App. 2d at 521-22.
Likewise in Dewey, 588 F. Supp. at 481-82, the insurer continually refused to make payment after the claimant had sent in reasonable proof with supporting documentation. The insurer, once receiving reasonable proof of loss, refused to inform the claimant why his affidavit was inadequate or what additional facts were required. Thus, the insurer was held not to have investigated the facts before denying the benefits.
In the instant case, no demand or reasonable proof of loss concerning substitution expenses, rehabilitation expenses, or underpayment of wage loss benefits for times already submitted and paid was ever furnished to Farm Bureau prior to filing the lawsuit, or even before trial. Since no demand was ever made regarding those expenses, Farm Bureau was not liable for those amounts, and they were improperly brought before the jury. Because no demand was made, no liability for payment accrued as to those benefits, and the statutory provision of K.S.A. 40-3110(b) authorizing interest was never triggered.
Where reasonable proof of loss is sent,
“no benefits shall be deemed overdue where the insurer or self-insurer has reasonable proof to establish that it is not responsible for payment of those particular benefits, or when in the sound discretion of the trial court the circumstances confronting the insurer when the claim for benefits was denied furnished just cause or excuse for refusal to pay such claim.” Coe, 228 Kan. at 632.
The question then is whether Farm Bureau had just cause, based on reasonable proof, to terminate the wage loss benefits and refuse to pay disputed medical benefits.
Farm Bureau, relying on the reports of Drs. Kelly, Maeda, Shriwise, Eplee, and Reddy, terminated any further payments of wage loss to Miner in 1990. A review of the documents presented at trial reveals: On October 31, 1989, Dr. Shriwise informed Farm Bureau that Miner should remain off work until further evaluation by Dr. Maeda. On November 20, 1989, Dr. Maeda, while stating he did not have much to offer Miner in the way of conservative management of her problem, urged her to settle with the insurance company and get on with her life, but he did not expressly state she had no work restrictions or disabilities. On February 27, 1990, Dr. Shriwise informed Farm Bureau that work modification might be a reasonable alternative for Miner. A report by Dr. Shriwise on January 25, 1990, had indicated that Miner could not go back to her previous job, which required the lifting of heavy objects and bending, but that she could do some jobs with restrictions. Finally, on March 1, 1990, Dr. Eplee informed Farm Bureau that Miner was still under a “significant disability situation.”
After the filing of the petition herein, Farm Bureau was furnished with various reports indicating Miner was not released to go to work, that Miner was 50% disabled with employment possibilities being nil, that the mainstay of her treatment was physical activity and exercises in spite of pain, that it was obvious Miner was not gainfully employable, that no restrictions should be placed on Miner’s activities and a gradual increase in physical activity and a return to a normal lifestyle was recommended, and that Miner was placed on lifting restrictions because of her inability to return to her normal work.
Were it only that the facts on the record indicate there were conflicting and inconclusive recommendations respecting Miner’s work status at the time of termination, it is not probable we could find the trial court abused its discretion in assessing statutory interest against Farm Bureau for benefits overdue. Of course, the statutory interest would apply only to those amounts which were overdue and which were properly raised and brought to the jury. Because no claim for substitution expenses, rehabilitation expenses, and underpayment of wage loss was ever submitted to Farm Bureau, those amounts were improperly brought before the jury, never became due, and are not subject to statutory interest. Furthermore, the jury did not find Farm Bureau liable for any medical expenses owing to Miner. When we con sider all the erroneous bases upon which the trial court entered judgment and against which interest was assessed, we can only conclude the trial court did abuse its discretion in assessing statutory interest against Farm Bureau, and we set aside that assessment.
Two medical expenses not paid were a bill to the Mayo Clinic and an allegedly prescribed mattress. Evidence at trial showed Farm Bureau had reasonable proof for disputing the payment of the Mayo Clinic bill because Farm Bureau paid it, only to receive a rebate from the clinic because the bill had already been paid. Even at the time of trial, Farm Bureau had not received any evidence of who had paid the bill so it could reimburse the appropriate person or entity. As for the cost of the mattress, Miner claimed Dr. Eplee prescribed the mattress, but Dr. Eplee denied prescribing it.
The trial court granted Miner’s post-trial motion for future medical expenses. The issue of future medical benefits was not raised at trial or in Miner’s petition. The controversy, in essence, is whether, after the passing of the two-year statute of limitations under K.S.A. 40-3110(a), Miner can claim additional medical benefits resulting from the injury for ongoing treatment until the policy limits are reached. Although it was not raised as an issue at trial, the trial court later found Miner was entitled to payment for medical expenses up to the policy limit if she furnished the required documentation showing it was continuing medical treatment expenses that were a result of the accident.
By requiring Miner to furnish Farm Bureau with documentation that the medical expenses were continuing medical treatment resulting from the accident, the requirement of specificity under Bradley v. AID Insurance Co., 6 Kan. App. 2d 367, 629 P.2d 720, rev. denied 230 Kan. 817 (1981), is met. Since Miner had furnished Farm Bureau with required notice and documentation of medical expenses before litigation and Farm Bureau had been paying for medical treatment, it was not error to require Farm Bureau to continue paying for necessary medical treatment until the policy limits have been reached.
K.S.A. 40-3111(b) provides for the recovery of attorney fees against the insurer or self-insurer when “the court finds that the insurer or self-insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.” When construing K.S.A. 40-3111(b), the court may look to the cases construing K.S.A. 40-256 wherein a claimant may recover attorney fees if the refusal to pay was without just cause or excuse. DiBassie, 8 Kan. App. 2d 515, Syl. ¶ 6.
“The question of whether an insurer has refused to pay without just cause or excuse is one of fact for the trial court. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134 (1974). In refusing to pay a claim, an insurance company has a duty to make a good faith investigation of the facts surrounding the claim. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 227, 597 P.2d 1080 (1979). If there is a bona ñde and reasonable factual ground for contesting the insured’s claim, there is no failure to pay without just cause or excuse. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565, 470 P.2d 756 (1970). Whether an insurance company’s refusal to pay is without just cause or excuse is determined on the facts and circumstances in each case. Smith v. Blackwell, 14 Kan. App. 2d 158, 165, 791 P.2d 1343 (1989), rev. denied 246 Kan. 769 (1990).
“Whether there was just cause to refuse payment and, therefore, justification for denial of attorney fees is in the trial court’s sound discretion. DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, Syl. ¶ 8, 661 P.2d 812 (1983). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).” Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 261-62, 815 P.2d 550 (1991).
The trial court, in its decision, assessed attorney fees against Farm Bureau because
“[e]xcept for medical, it appears according to the evidence that the claims have not always been paid when requested by the plaintiff. By this, the Court means the defendant did not take the initiative to comply with the terms of the policy when, in fact, it had been paying the loss of earnings (wages) under PIP for some time after the accident.”
This holding apparently encompasses the claims for wage loss benefits as to underpayment and unpaid substitution expenses and rehabilitation benefits of which the trial court held Farm Bureau had the required notice when this action was filed. As previously held, however, the filing of the petition was not proper notice as required by statute or the insurance policy and did not trigger Farm Bureau’s liability to pay Miner’s claims for underpayment of wage loss, substitution expenses, or rehabilitation expenses. Thus, the trial court’s reliance on the fact Farm Bureau did not pay the benefits claimed, despite the fact Miner never sent Farm Bureau any documentation of the amounts claimed for each benefit, is erroneous.
Furthermore, future medical expenses were not addressed at trial and had not been incurred at that time. Farm Bureau cannot be said to have refused to pay them and cannot be assessed attorney fees for not having paid them.
The only real basis upon which the trial court could decide if attorney fees were appropriate was to consider whether Farm Bureau’s decision to terminate the wage loss benefit and refuse payment after that date was reasonable and based on just cause or excuse.
As previously discussed, the evidence at trial brought out that, at the time of Farm Bureau’s decision to terminate wage loss payments, the doctors treating Miner issued conflicting reports concerning Miner’s ability or inability to work prior to the filing of this action. After the filing of the petition, Farm Bureau had notice of the possibility of Miner’s continued disability. However, documentation was not sent itemizing the amounts claimed for lost wages during that period.
At the time the trial court was considering the matter of attorney fees, it also improperly had before it the jury award for underpayment of wages, substitution expenses, and rehabilitation expenses.
In conjunction with this issue, Farm Bureau argues that the trial court improperly assessed various litigation expenses of Miner against Farm Bureau as attorney fees. Farm Bureau asserts that neither K.S.A. 40-256 nor K.S.A. 40-3111(b) makes any provision for allowing recovery of Miner’s litigation expenses.
Costs and expenses do not ordinarily include attorney fees. The allowance of attorney fees is dependent upon express statutory authority. Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 700, 366 P.2d 219 (1961).
K.S.A. 40-3111(b) expressly allows a claimant to recover attorney fees from an insurer. No mention is made of costs or expenses of litigation in granting recovery of attorney fees. However, when that same subsection addresses the insurer or self-insurer’s ability to recover attorney fees when defending an insured person in litigation, it expressly states the insurer or self-insurer may be allowed reasonable attorney fees “based upon actual time expended, and all reasonable costs of suit for its defense.”
“ ‘[I]t is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute.’ [Citation omitted.]” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 245-46, 834 P.2d 368 (1992).
The mention of costs incurred in defense of litigation being allowable to the insurer, while excluding that provision in the paragraph pertaining to the insured’s right to recover attorney fees, evidences an intent on the part of the legislature to exclude the recovery of litigation costs from the assessment of attorney fees for the insured. See State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977) (during statutory interpretation, the inclusion of one thing implies the exclusion of the other).
The recovery of attorney fees is expressly governed by statute; therefore, the trial court was without authority to include the litigation costs in the attorney fee recovery and Farm Bureau’s failure to object at trial is inconsequential. It was error for the trial court to include litigation costs in the attorney fees allowance.
When we consider the totality of the circumstances and the several erroneous bases upon which the attorney fees were addressed, we can only conclude the trial court abused its discretion in assessing Miner’s attorney fees against Farm Bureau, and we set aside that assessment.
This case is reversed and remanded for a new trial on the correct amount to be assessed against the insurance company for the periods of nonpayment of wages. The judgment awarded for substitution expenses, rehabilitation expenses, and underpayment of wage loss for time periods already paid is reversed and the case is remanded with direction to enter a directed verdict for Farm Bureau on those issues. The award of statutory interest and attorney fees is reversed. The judgment entered for future medical expenses is affirmed.
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PlERRON, J.:
This case is before the court following a district court review of a workers compensation action. The district court held there was sufficient evidence to find that the minor child, M.P.J., was the son of the deceased employee, Michael Jones, thereby overturning the decision of the administrative law judge (ALJ) and the Director of Workers Compensation. Jones’ two minor children from his marriage are appealing the district court’s decision.
The facts can be summarized as follows. Michael L. Jones died in a work-related accident in November 1987. He was survived by two dependent children: R.L.J. and J.J.J. At the time of Michael’s death, Lydia Jones was pregnant. She was not married to Michael or anyone else at the time. Lydia gave birth to a son, M.P.J., on April 1, 1988. She claims that M.P.J. is a wholly dependent child of Michael and is entitled to survivor benefits under workers compensation. K.S.A. 1991 Supp. 44-510b(a)(l).
The ALJ found there was insufficient evidence to support a determination that M.P.J. was the natural child of Michael. The district court on de novo review found there was sufficient evidence to find M.P.J. was the child of Michael and a “wholly dependent child” entitled to benefits pursuant to K.S.A. 1991 Supp. 44-508(c).
The following evidence of paternity was presented:
Lydia Jones testified Michael fathered her child. She testified they engaged in sexual intercourse during the time of conception and she was not intimate with anyone else during this period of time. No one contradicted or confirmed this testimony. Lydia also testified she informed Michael he was the father of her child and he gave her $25 to help pay for a physician’s visit for prenatal care. She also testified Michael spent several nights a week at her apartment during June and July of 1987. Lydia and Michael were not married, did not plan to be married, and discussed marriage only in general terms, if at all.
Five acquaintances of Michael and Lydia testified. They were of the opinion that, Michael was the father of Lydia’s child. However, each said Michael never stated he was the father. Each witness testified he or she found out about the pregnancy from Lydia or some third party. They assumed Michael was the father based on their impressions of Lydia and Michael’s relationship.
Christine Anderson testified she asked Michael how he felt about “the news.” He responded that “it was coming sooner or later.” She assumed they were talking about Lydia’s pregnancy, but neither Christine or Michael ever specifically stated that. Anderson testified that Jacque Homer witnessed this conversation. However, Homer could not remember the conversation.
Four witnesses testified the child resembled Michael. The alleged physical similarities included similar noses; similar facial and body structure; and similar smiles. One person testified when he looked at the baby “it was just one of them things you just feel in your body. It looked like him.” Lydia testified M.P.J. has blond hair and blue eyes. Michael had brown hair. Lydia could not remember what color Michael’s eyes were, but she thought they were brown.
Lydia’s landlady testified neighbors told her Michael’s car was frequently parked in front of Lydia’s house all night during the summer of 1987. The landlady could not confirm whether Michael and Lydia were spending the night together because the landlady worked nights. She also testified she overheard Michael and Lydia joking about the baby’s sex, but she did not hear Michael claim or deny paternity.
Michael’s family was not aware Lydia was pregnant until she told them at Michael’s funeral. Michael is not listed on the birth certificate as the father of M.P.J.
Two witnesses testified they felt Lydia’s claim for social security and workers compensation benefits for M.P.J. were based, at least in part, on the fact that she was “greedy” or having financial problems.
This case centers on defining the term “wholly dependent child” of the covered employee and on the standard of proof that must be applied. In Killingsworth v. City of Wichita, 16 Kan. App. 2d 801, 830 P.2d 70 (1992), this court focused on the term “wholly dependent.” The instant case focuses on the term “child.” K.S.A. 1991 Supp. 44-508(c)(3)(A) defines a wholly dependent child as “a birth child or adopted child of the employee.” M.P.J. claims he is the birth child of Michael. However, no presumption of paternity applies to this case, and there has never been a judicial determination of paternity.
M.P.J. argues that a separate judicial determination of paternity is not required before a minor is declared a wholly dependent child entitled to workers compensation survival benefits. As authority for this position, M.P.J. cites Green v. Burch, 164 Kan. 348, 189 P.2d 892 (1948), and Killingsworth v. City of Wichita, 16 Kan. App. 2d 801.
It is true that neither of these cases specifically states paternity must be determined before benefits are awarded. However, in Green there was a presumption of paternity; the father and mother held themselves out as married and the father openly acknowledged his paternity of the children. 164 Kan. at 349. In Killingsworth, SRS had initiated a paternity suit against the employee which was concluded after his death and prior to the workers compensation action. In the paternity suit, the district court had found the employee was the claimant’s natural father due to the results of DNA testing. In the later workers compensation action the defendant stipulated to the employee’s paternity. 16 Kan. App. 2d at 802.
Appellee M.P.J. also attempts to position this case as one involving a constitutional question. He argues that, when awarding workers compensation benefits, illegitimate children cannot be treated differently from legitimate children. This is clearly true. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 31 L. Ed. 2d 768, 92 S. Ct. 1400 (1971). However, this case does not present a question of legitimate versus illegitimate. The question in this case is whether the claimant is a child of the worker, whether legitimate or not.
The Kansas courts have never been confronted with the question of whether a separate judicial determination of paternity in a paternity proceeding must precede an award of workers compensation benefits, where proof of paternity is a necessary incident to a determination of dependency for benefit eligibility purposes. Some jurisdictions that have considered this question have held in the negative. See Bettelon v. Metalock Repair Service, 137 Mich. App. 448, 358 N.W.2d 608 (1984); Goins v. Lott, 435 N.E.2d 1002 (Ind. App. 1982).
Several jurisdictions have held that a workers compensation hearing board or officer may make this determination. See Jones v. Industrial Commission, 64 Ill. 2d 221, 356 N.E.2d 1 (1976); Goins v. Lott, 435 N.E.2d 1002; Bettelon v. Metalock Repair Service, 137 Mich. App. 448. However, this determination may be limited to paternity for purposes of workers compensation benefits. Bettelon v. Metalock Repair Service, 137 Mich. App. at 454. We find, for purposes of workers compensation benefits only, that a workers compensation ALJ or reviewing court may determine parentage in the course of an appropriate workers compensation case. Any such finding would not be binding in any other way. We find that the purposes of the Workers Compensation Act allow this less comprehensive approach.
The second question is what evidentiary standard should apply.
In a workers compensation action, the claimant bears the burden of proof. The trier of fact must consider the whole record. K.S.A. 1991 Supp. 44-501(a). Burden of proof is defined as “the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party’s position on an issue is more probably true than not true on the basis of the whole record.” K.S.A. 1991 Supp. 44-508(g). Since this is a workers compensation action, a preponderance of evidence is the evidentiary standard.
Were this a paternity action to resolve for all purposes the question of parentage, a stricter burden would be required and concerns about allowing “a living woman to swear the paternity of illegitimate offspring upon a dead man” would be given more weight. Gross v. VanLerberg, 231 Kan. 401, 402, 646 P.2d 471 (1982).
This ruling is consistent with the finding in Gross that there is a distinction between finding paternity in the abstract and finding paternity as just an element in a child’s action for benefits under some compensation law. Gross, 231 Kan. at 406. This ruling presumes there has been no other court determination on the issue.
Under this ruling, we find the trial judge did not abuse his discretion in finding that M.P.J. is the child of Michael Jones. Although another finder of fact might have ruled otherwise, the conclusion is supported by substantial competent evidence.
Affirmed.
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Vickers, J.:
Defendant Ronald Smith appeals the trial court’s dismissal of his motion to modify sentence for lack of jurisdiction. This is the second time his appeal is before us. Smith pled no contest to rape, K.S.A. 21-3502; aggravated criminal sodomy, K.S.A. 21-3506; and aggravated burglary, K.S.A. 1991 Supp. 21-3716. Smith was sentenced to a controlling term of 20 to 40 years’ imprisonment. Smith filed a motion to modify his sentence, which was denied. Smith appealed the trial court’s denial of his motion to this court. We affirmed his sentence in State v. Smith, No. 65,813, unpublished opinion filed June 14, 1991. Smith filed a post-appeal motion to modify his sentence. This is an appeal taken from the trial court’s dismissal of that motion. We affirm.
The issue before us is whether the defendant is authorized to file a motion to modify sentence twice, once before and once after appeal, seeking modification of the same sentence. K.S.A. 1991 Supp. 21-4603(4) states:
“(a) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (4)(b), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.
“(b) If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.”
Smith argues on appeal that K.S.A. 1991 Supp. 21-4603(4)(b) governs this appeal, entitling him to file a post-appeal motion to modify. Smith argues that the above two subsections (a) and (b) are not necessarily mutually exclusive; therefore, the defendant should be able to file a motion to modify after his appeal whether or not he had filed a motion before the appeal. We disagree.
The purpose of the above statute was explained in State v. Saft, 244 Kan. 517, 519, 769 P.2d 675 (1989) (citing United States v. Smith, 650 F.2d 206 [9th Cir. 1981]): “The 120-day time limit protects the courts from repeated motions by sentenced defendants and insures the responsibilities of the parole board are not usurped by courts retaining jurisdiction indefinitely.”
When Smith appealed the trial court’s denial of his motion to modify, we affirmed his sentence. If Smith is allowed to file another motion to modify his sentence now, and if the trial court denies the motion, he will be able to appeal that decision and we will be faced with the same question again. If we affirm that decision, will Smith then be able to file another motion to modify within 120 days after that mandate comes back? That would be the absurd result of misinterpreting the otherwise plain language of the statute.
An amendment to 21-4603 in 1989 (L. 1989, ch. 92 § 2) divided the provision into subsections (a) and (b) and added the language, “Except when an appeal is taken and determined adversely to the defendant as provided in subsection (b) . . . .” It seems logical to assume that the legislature intended that the defendant may seek modification of sentence only once, either before or after appeal, but not twice.
We hold that the district court did not have jurisdiction over Smith’s second motion to modify his sentence.
The judgment is affirmed.
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Gernon, J.:
This is an appeal from a court order to return property, which was pawned but was later seized as evidence, to its original owner.
Jerry King, d/b/a King’s Pawn Shop, the appellant, took the property from a thief in exchange for a loan of $90. The pawn ticket indicates that King took the property from L.J. L.J. was never charged with any crime involving the theft of or possession of the property involved. The property was owned by Barbara Games, who reported it stolen. A police investigation found the property listed on King’s pawn slip, where it was seized by the authorities after King signed a consent to search and a release for the property.
Jurisdiction
King first challenges the jurisdiction of the district court to order the return of property to its owner when there is no criminal prosecution. King asserts that, under these circumstances, his interest in the property is superior to that of Games’.
King argues the statute dealing with seized property requires that a prosecution take place as a condition for the return of property to its “rightful owner.” The statute in question, K.S.A. 22-2512, states in part:
“(1) • ■ • Where seized property is no longer required as evidence in the prosecution of any indictment or information, the court which has jurisdiction of such property may transfer the same to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence in any prosecution in such other court.
“(2) When property seized is no longer required as evidence, it shall be disposed of as follows:
“(a) Property stolen, embezzled, obtained by false pretenses, or otherwise obtained unlawfully from the rightful owner thereof shall be restored to the owner.”
Kansas courts have addressed the issue of returning stolen property as part of a criminal proceeding, but we find no published case in which the issue was addressed where there was no criminal proceeding.
In State v. Gunzelman, 200 Kan. 12, 13-14, 434 P.2d 543 (1967), the court reasoned:
“It has been held that property or money lawfully in the hands of law enforcement officials for use as evidence in a criminal proceeding is regarded as being in custodia legis [citations omitted] and subject to the court’s order as to disposition thereof in the same proceeding, rather than in a separate action [citations omitted].”
More recently, this court, in State v. Antwine & McHenry, 6 Kan. App. 2d 900, 904, 636 P.2d 208 (1981), rev. denied 230 Kan. 819 (1982), cited the language in Gunzelman referring to evidence in custodia legis (in legal custody). In Antwine <b McHenry, the issue was the conflict between the accused’s entitlement to use any exculpatory evidence and the rightful owner’s right to the return of his property. Justice Holmes, sitting with this court, wrote in Antwine <Lr McHenry:
“On the other hand, the plight of the victims and owners of physical evidence must also be given due consideration. It is tragedy enough that a person has been deprived of his property through some criminal act of another without such loss being compounded by any unnecessary delay in returning the property to its rightful owner. It is the duty of the prosecution and the court to see that a person criminally deprived of property has it restored to him, if possible, at the earliest opportunity consistent with the protection of the rights of both the State and the defendant.” 6 Kan. App. 2d at 903.
The property involved here is held in custodia legis. The question then becomes one of how and under what procedures it may be disposed of.
Kansas courts have authority to hear both civil and criminal cases. Where no criminal action has been filed, the district court retains in rem jurisdiction over property held in custodia legis. This action to return property is not converted to a criminal action simply because it was brought by a district attorney. The language in Antwine & McHenry imposes a duty on the prosecution and the court to restore property to its rightful owner at the “earliest opportunity,” consistent with certain due process protections. To hold otherwise here would allow a pawnshop to potentially receive good title from a thief, hardly a concept to be encouraged by judicial action.
Due Process
The proper disposition of property held in custodia legis is dependent upon certain minimum due process requirements having been met.
“At a minimum the essential elements of due process in an action affecting a person’s life, liberty or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. [Citation omitted.]” State v. Durst, 235 Kan. 62, 66, 678 P.2d 1126 (1984).
The United States Court of Appeals for the Tenth Circuit, in Wolfenbarger v. Williams, 774 F.2d 358 (10th Cir. 1985), recognized that a pawnbroker’s possessory interest was sufficient to require due process before the property is returned to its rightful owner.
Here, although the record does not show how King received notice of the hearing, the record does show that King appeared and had adequate notice to cite legal authorities to the court. He stated at the hearing that he had contacted an attorney, but that the attorney had a scheduling conflict.
Due process here requires that King have the opportunity to state his position. The record supports our conclusion that King had such an opportunity.
Holder in Due Course
King argues that he was a “purchaser in good faith” and has a possessory interest against the rest of the world, although he admits that “a purchaser under defective title might not hold against the true owner.” We agree with King on both counts. The important concept here is that the owner, not the rest of the world, was making the claim against the property.
Even though King is a good faith purchaser for value, he acquired possession from a thief who had void title, not voidable title, and who had no power to divest the original owner of the property. See 3 Anderson on the Uniform Commercial Code, §§ 2-401:61 and 2-403:26 (3d ed. 1983); and 63A Am. Jur. 2d, Property § 44.
The regulations governing pawnbrokers also support the conclusion that a pawnbroker cannot acquire title through a thief. The Code of the City of Wichita, Charter Ordinance No. 134, § 18 (1991), provides:
“When converted or stolen property has been pawned or purchased by a pawnbroker, secondhand dealer, or precious metal dealer and the pawnbroker, secondhand dealer, or precious metal dealer refuses to redeliver such property to the rightful owner upon demand and presentation of a bill of sale or other proper indicia of ownership by the owner, and legal action by the rightful owner to recover the property becomes necessary, the court may assess the pawnbroker, if the court finds that the pawnbroker or secondhand dealer wrongfully withheld the converted or stolen property.”
Section 11 requires pawnbrokers to keep detailed records of each transaction and provide a daily report listing all property received to the police department. Code of the City of Wichita, Charter Ordinance 134, § 11 (1991).
Because the pawnbroker is the one who deals with the thief, he or she should bear the risk of accepting stolen property. The pawnbroker s remedy in this case is to find the thief and recover against the thief for breach of the warranty of title in K.S.A. 84-2-312.
King argues that his rights are superior to Games’ rights in the property because Games has been compensated by her insurance company and has signed a release. There is no evidence in the record, other than King’s accusation, to support a conclusion that Games assigned her interest in the property to her insurer. The relationship between Games and her insurance company is a matter of contract. See State v. Houck, 240 Kan. 130, 135, 727 P.2d 460 (1986). Therefore, any interest the insurer may have in the property is governed by the contract of insurance. King, who is neither a party to that contract nor an intended third-party beneficiary, cannot enforce the insurer’s rights. See, e.g., Gillespie v. Seymour, 14 Kan. App. 2d 563, 796 P.2d 1060 (1990).
If the insurer is entitled to subrogation because it has paid Games’ claim, it is entitled to stand in the shoes of its insured, Western Motor Co. v. Koehn, 242 Kan. 402, 405, 748 P.2d 851 (1988), and assert Games’ superior rights in the property in question. It is clear that King’s right to possess the property is inferior to that of either Games or her insurer, regardless of which party has the ability to assert those rights against King. After the property is returned to Games, her insurer will have the opportunity to assert its subrogation rights against her.
Affirmed.
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Elliott, J.:
Pan Oil & Gas Exploration, Inc., (Pan Oil) appeals from the trial court’s ruling on its petition for declaratory judgment against Kelt Kansas, Inc., Kelt Energy, Inc., and American Express Bank, Ltd., (defendants) concerning the interpretation of a document assigning an interest in an oil and gas lease.
We reverse and remand for further proceedings.
The essential facts are undisputed. LCO, Inc., acquired a 7/8 working interest in an oil and gas lease in Montgomery County. LCO, in 1976, assigned all its interest in the lease to E. A. Berry, subject to the following reservation:
“This assignment is subject to an oil payment of $100,000.00 out of I/16th of 7/8ths W. I. to be paid $50,000.00 to LCO, Inc. and $50,000.00 to Hughes Industries, Inc.”
LCO’s right to one-half of the received payment was eventually conveyed to plaintiff Pan Oil; Berry assigned his interest in the lease and it is presently held by Kelt Kansas, Inc. Kelt Energy, Inc., and American Express Bank claim an interest in the case by virtue of a mortgage on the lease in question.
At the time of LCO’s assignment and reservation of the “oil payment,” only oil was being sold off the lease. A gas well had been drilled, but was not hooked up to a gathering system. Gas was not actually marketed from the lease until 1988.
Over the years, the “oil payment” has been paid from oil production only. Plaintiff contends “oil payment” also includes gas and other hydrocarbons; defendants contend “oil payment” means exactly and only what it says. The trial court held that “oil payment” does not include proceeds from the sale of gas.
The trial court found the phrase “oil payment” to be clear and unambiguous and refused to recognize “oil payment” as a term of art in the oil patch of southeastern Kansas. Although we find the phrase ambiguous, we agree with the trial court’s conclusion.
Since the case was presented on stipulated facts to the trial court, our scope of review is de novo. Penalosa Co-op Exchange v. Farmland Mut. Ins. Co., 14 Kan. App. 2d 321, 323, 789 P.2d 1196, rev. denied 246 Kan. 768 (1990).
We agree with the trial court that the term “oil payment” standing alone cannot be recognized as a term of art. But we disagree with the trial court that the term is free from ambiguity.
Even the treatises seem unsure as to how to define an “oil payment,” although the term has been used for decades. An oil payment is a carried (non-cost-bearing) interest in the lease. See Hemingway, The Law of Oil and Gas § 9.9 (3d ed. 1991). Carried interests may be designated as overriding royalties, or they may be limited in duration or to a certain sum. Hemingway states that “[i]n the latter case they are usually designated as production payments, although earlier usage was to refer to the particular product out of which the sum was payable, e.g., oil payment.” Hemingway, § 9.9 at 634.
Williams and Meyers state that the term “production payment” includes oil, gas, and other minerals, but that “oil payment” is the more common term used even where minerals other than oil are included. 2 Williams & Meyers, Oil & Gas Law § 422, p. 366 (1991). Kansas courts have frequently relied on Williams and Meyers in defining oil and gas words and phrases. See, e.g., Adolph v. Stearns, 235 Kan. 622, 628, 684 P.2d 372 (1984).
On the other hand, Williams and Meyers caution that the product or products subject to the “oil payment” should be clearly specified at the time the interest is created. 2 Williams & Meyers, § 422.4(a).
Kansas cases have not addressed the precise meaning of “production payment” and “oil payment,” although a few cases have addressed the terms in passing. E.g., Kumberg v. Kumberg, 232 Kan. 692, 695, 659 P.2d 823 (1983); Klippel v. Heintz, 231 Kan. 312, 313, 644 P.2d 428 (1982).
The true nature or character of a reservation of oil and gas rights is not determined only by the label attached to it by the parties; it is determined by the intent of the parties at the time. Cline v. Angle, 216 Kan. 328, 332, 532 P.2d 1093 (1975).
In the present case, the four comers of the document provide no clues as to the intent of the parties at the time of its execution. And, of course, extrinsic evidence of the parties’ intent is admissible when the terms of an agreement are ambiguous. Lillibridge v. Mesa Petroleum Co., 907 F.2d 1031, 1037 (10th Cir. 1990).
Four affidavits were filed by the parties in the present case, and the trial court admitted them. But because the trial judge found the term “oil payment” to be clear and unambiguous, we must assume he did not consider them or weigh them in determining what the phrase means in the reservation here presented.
We hold the term “oil payment” under the facts of this case to be ambiguous. The treatises seem to agree. And the four affidavits filed in this case seem to agree.
Victor Leis, with 22 years’ experience in the oil patch, stated that “oil payment” generally covers a fraction of the production of both oil and gas and other hydrocarbons. But both W.T. Stoeckinger and Clyde G. Layton swore that “oil payment” covers only oil and not gas or other hydrocarbons.
The fourth affidavit was from Clay E. Hedrick, Jr., who was the president of LCO at the time of the assignment. He stated that at the time of the assignment, test results from the completed gas well were quite good and that part of the $100,000 reserved oil payment was to recognize the value of the gas well.
Accordingly, we reverse and remand for further proceedings. Since we find the term “oil payment,” under the facts of the present case, to be ambiguous, the trial court must consider extrinsic evidence in order to determine the intent of the parties at the time the reservation was executed. The trial court may simply weigh and consider the four affidavits submitted to it or may open the proceedings to live testimony, at its discretion.
Because of our holding on this issue, we need not decide whether the assignment/reservation is subject to reformation.
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The opinion of the court was delivered by
Davis, J.:
The Kansas Department of Revenue (KDR) petitions this court for review of the Court of Appeals’ decision reversing the district court’s dismissal of Derek Rebel’s petition for judicial review of his driver’s license suspension. The district court dismissed Rebel’s petition for lack of subject matter jurisdiction, finding that the petition did not strictly comply with the pleading requirements of K.S.A. 77-614(b)(5) and (b)(6) of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., in violation of this court’s opinion in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006). The Court of Appeals reversed in an unpublished opinion. Rebel v. Kansas Dept. of Revenue, No. 98,930, unpublished opinion filed December 21, 2007.
We granted the KDR’s petition for review in conjunction with our grant of review in Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 204 P.3d 562 (2008), to clarify the pleading requirements for petitions for judicial review under the KJRA after our recent opinion in Bruch, where we held that strict compliance with those pleading requirements was necessary in order to confer appellate jurisdiction. 282 Kan. 764, Syl. ¶¶ 2, 4, 5. We now affirm the decision of the Court of Appeals reversing the district court, reverse the decision of the district court dismissing the case, and remand the case for further proceedings.
Facts
In the early morning on October 22, 2005, Derek Rebel was operating a vehicle in Hays, Kansas. After witnessing Rebel’s vehicle weaving within its lane, Officer Jeffrey Ridgway of the Hays Police Department initiated a traffic stop. An evidentiary breath test administered by Officer Ridgway showed that Rebel had a blood-alcohol concentration of 0.237; the record indicates, however, that this test was based on a deficient sample because Rebel refused to complete the testing.
The officer found that Rebel failed a sobriety test and exhibited slurred speech, bloodshot eyes, difficulty in communicating, and poor balance or coordination; Officer Ridgway also certified that Rebel had informed the officer that he had consumed alcohol or drugs. Based on these observations, Officer Ridgway certified that he had reasonable grounds to believe that Rebel had been operating a vehicle under the influence of drugs or alcohol in violation of K.S.A. 8-1001 et seq. and issued a notice of suspension of Rebel’s driver’s license.
On October 27,2005, Rebel requested an administrative hearing with the KDR to review his suspension order. A hearing was conducted on October 25, 2006, after which the KDR issued an administrative order affirming the suspension of Rebel’s driver’s license. Shortly thereafter, Rebel filed a timely petition for judicial review in Ellis County District Court. See K.S.A. 2007 Supp. 8-259. Rebel’s petition for judicial review contained the following two critical paragraphs:
“6. That plaintiff seeks review of all issues raised by plaintiff in the hearing before the administrative hearing officer, in Hays, KS.
“7. The order suspending plaintiff s driving privileges should be vacated by this Court because the officer improperly certified the form DC-27, licensee did not refuse testing but was physically unable to complete testing due to medical condition; and plaintiff also seeks review of all issues raised before the administrative hearing officer at the October 25, 2006, hearing.”
The KDR filed a motion to dismiss Rebel’s petition for judicial review, arguing that the petition failed to strictly comply with the pleading requirements of the KJRA, specifically K.S.A. 77-614(b)(5) and (b)(6). The motion also claimed that the district court did not have jurisdiction over the issue regarding Rebel’s alleged medical condition because Rebel did not present any evidence relating to that condition at the administrative hearing.
The district court dismissed Rebel’s petition for failure to comply with the requirements of K.S.A. 77-614(b)(5) and (b)(6). The district court’s order made no mention of the KDR’s argument relating to Rebel’s alleged medical condition.
Rebel appealed, and the Court of Appeals reversed the district court’s dismissal of the action in an unpublished opinion. Rebel, slip op. at 3-4. The Court of Appeals found that “[b]y stating facts to support [Rebel’s] claim that he did not refuse testing but was physically unable to complete testing due to a medical condition, the petitioner’s pleading is more specific than the one rejected in Bruch.” Rebel, slip op. at 3-4. Thus, the court held that Rebel’s petition met the pleading requirements of the KJRA. Slip op. at 4.
The KDR petitioned this court for review, claiming that the Court of Appeals erred in finding that Rebel’s petition strictly complied with the pleading requirements of K.S.A. 77-614(b). The KDR also renews its claim from its motion to dismiss that the district court did not have subject matter jurisdiction to review the medical-condition claim because this claim was not adequately presented at the administrative hearing. Although the KDR recognizes that it did not raise this claim by way of a cross-appeal, it construes the issue as involving the exhaustion of administrative remedies and claims that it goes to the court’s subject matter jurisdiction to hear this appeal.
Rebel did not file a response. This court granted the KDR’s petition for review on all issues presented.
Discussion
The KDR raises three issues in its petition for review: (1) whether Rebel’s petition for review strictly complied with K.S.A. 77-614(b)(5); (2) whether Rebel’s petition for review strictly complied with K.S.A. 77-614(b)(6); and (3) whether the alleged failure to raise Rebel’s claim that a medical condition prevented him from providing an accurate evidentiary breath test (deficient sample) bars the court from reviewing that issue. The first two claims by the KDR implicate Kansas courts’ subject matter jurisdiction to consider a petition for judicial review. See Bruch, 282 Kan. at 773-74, 785-87 (strict compliance with the pleading requirements of K.S.A. 77-614[b] is necessaiy before a court may exercise jurisdiction over a petition for judicial review). This court considered all three of these issues in Kingsley, 288 Kan. 390, Syl. ¶¶ 1-12.
Strict Compliance with the KJRA’s Pleading Requirements
In Kingsley, this court reversed the district court’s dismissal of a petition for judicial review, concluding that the petition strictly complied with the plain language of K.S.A. 77-614(b). See Kingsley, 288 Kan. at 407-08. We reiterated that under Bruch, “strict compliance with the KJRA’s pleading requirements is necessaiy to confer subject matter jurisdiction over a petition for judicial review,” and “ ‘[c]ompliance with the specific language of K.S.A. 77-614(b) meets the strict compliance requirement.’ ” Kinglsey, 288 Kan. at 399 (quoting Bruch, 282 Kan. at 781).
We emphasized in Kingsley that K.S.A. 77-614(b)(5) and (b)(6) “set forth two distinct requirements for petitions seeking an appeal under the KJRA.” 288 Kan. at 401. Applying these statutory sections to the case now before us, we conclude that Rebel’s petition for judicial review strictly complied with the KJRA’s pleading requirements.
KS.A. 77-614(b)(5)
K.S.A. 77-614(b)(5) states that a petition for judicial review under the KJRA “shall set forth . . . facts to demonstrate that the petitioner is entitled to obtain judicial review.” K.S.A. 77-607(a) provides that a petitioner is “entitled to judicial review of [a] final agency action” under the KJRA if that person “qualifies . . . regarding (1) standing (K.S.A. 77-611), (2) exhaustion of administrative remedies (K.S.A. 77-612) and (3) time for filing the petition for judicial review (K.S.A. 77-613).”
We reviewed these provisions in Kingsley and concluded that “[t]here can be no question that the pleading requirement in K.S.A. 77-614(b)(5) is referring to” K.S.A. 77-607 when a petition requests review of a final agency decision. 288 Kan. at 401. Thus, in a case that involves an appeal from a final agency action, “the plain statutory language of the KJRA requires that a petitioner provide facts that demonstrate the petitioner has standing, has ex hausted administrative remedies, and is filing a timely petition for judicial review.” 288 Kan. at 403.
Turning to the level of specificity required of a petitioner s pleading in order to strictly comply with K.S.A. 77-614(b)(5), we concluded:
“K.S.A. 77-614(b)(5) provides that petitions for judicial review under the KJRA must set forth ‘facts to demonstrate that the petitioner is entitled to obtain judicial review.’ (Emphasis added.) The statute does not require legal arguments or statutory citations, but facts. Thus, if there are sufficient facts in a petition for judicial review from which the agency and reviewing court can determine that the requirements for standing, exhaustion, and timing are met, petitioner is ‘entitled to obtain judicial review’ in accordance with the requirements of K.S.A. 77-607(a). In light of the specific statutory requirements of K.S.A. 77-607(a), the safer practice for a petitioner seeking an appeal under the KJRA from a final agency action is to specifically and separately state in the petition facts establishing standing, exhaustion, and timing. However, a petition for judicial review will not be dismissed on its face if the petition as a whole establishes those required facts.” Kingsley, 288 Kan. at 404.
Applying this standard to the present case, we find that Rebel’s petition for judicial review has set forth sufficient facts to demonstrate that he has standing, that he exhausted the administrative process, and that he filed his petition for judicial review within the statutory period. His petition therefore demonstrates that he is entitled to judicial review under the KJRA. Because the district court erred in its conclusion that Rebel did not meet the requirements of K.S.A. 77-614(b), we reverse that decision.
KS.A. 77-614(b)(6)
K.S.A. 77-614(b)(6) states that petitions for judicial review under the KJRA “shall set forth . . . the petitioner’s reasons for believing that relief should be granted.” In other words, a petition for judicial review must set forth the specific issues that will be raised before the district court. See Bruch, 282 Kan. at 785-87. In Bruch, we indicated that this pleading requirement serves two purposes: (1) It puts the district court and administrative agency on notice as to what issues will be reviewed, and (2) it assures that only issues that were raised at the administrative hearing will be considered on appeal. 282 Kan. at 783.
Despite this discussion, Bruch provided little guidance on the degree of specificity required of a petition for judicial review under K.S.A. 77-614(b)(6) in order to survive an initial motion to dismiss. Kingsley, 288 Kan. at 405-06. We considered this question in more detail in Kingsley, where we explained:
“The plain language of K.S.A. 77-614(b)(6) requires a petitioner to include in his or her petition for judicial review the petitioner’s reasons for believing that relief should be granted. We interpret this language to state that as long as the petitioner sets forth sufficiently specific reasons for relief so that the court and agency can ascertain the issues that will be raised before the district court, the petitioner has satisfied the pleading requirement. If the district court later determines diat the petitioner’s case consists only of issues that were not specifically pleaded in the petition for judicial review, the court may do what it did in Bruch— dismiss the petition for lack of jurisdiction.
“Thus, a petition for judicial review strictly complies with K.S.A. 77-614(b)(6) when the reasons for relief set forth in the petition give the court and the agency notice of the issues that will be raised. While it is a better practice for the language in the petition for judicial review to mirror the statutory basis for the specific relief requested, the failure to cite to specific statutory language will not result in a lack of jurisdiction to review the agency decision.” 288 Kan. at 406-07.
Applying this standard to the case- before us, we conclude that Rebel has set forth the reasons why he believes relief should be granted in this case — namely, that “the officer improperly certified tire form DC-27” and that Rebel “did not refuse testing but was physically unable to complete testing due to a medical condition.”
In its petition for review, the KDR argues that Rebel’s allegation regarding the failure to complete the evidentiary breath test due to a medical condition fails to strictly comply with K.S.A. 77-614(b)(6) because the petition for judicial review does not state which medical condition prevented Rebel from completing the breath test. The basis for the medical-condition defense is set forth in K.S.A. 2007 Supp. 8-1001(1): “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.” The KDR claims that Rebel’s petition is deficient because it (1) fails to give any details as to the particular type of medical condition involved and (2) does not state that the alleged medical condition is unrelated to the ingestion of alcohol or drugs.
These arguments are without merit. K.S.A. 77-614(b)(6) does not require a petition to set forth the factual bases for the issues to be presented on appeal — it only requires that the petition set forth the petitioner’s “reasons for beheving that relief should be granted.” (Emphasis added.) The failure to include specific factual statements regarding a petitioner’s reasons for beheving that he or she should prevail on appeal does not act as a jurisdictional bar to review as long as the petition itself gives sufficient notice to the court and agency of the specific issues to be raised.
Because Rebel set forth in his petition for judicial review his reasons for beheving why relief should be granted in this case, Rebel has strictly complied with the pleading requirements of K.S.A. 77-614(b)(6), and the district court erred when it dismissed the case on the face of Rebel’s petition.
Conclusion
The district court erred when it concluded that Rebel’s petition for judicial review should be dismissed under K.S.A. 77-614(b)(5) and (b)(6). Rebel’s petition sets forth facts demonstrating that he is entitled to judicial review- — that he has standing, has exhausted his administrative remedies, and has comphed with the applicable timing requirements. The petition also sets forth Rebel’s reasons for believing why relief should be granted in this case. For these reasons, we affirm the Court of Appeals’ decision reversing the district court’s dismissal of Rebel’s petition, reverse the district court’s decision, and remand the case to the district court for further proceedings.
Exhaustion of Administrative Remedies
The KDR also argues that this court lacks subject matter jurisdiction to hear any argument relating to Rebel’s claim that the evidentiaiy breath test was inaccurate due to a medical condition because Rebel did not present any evidence relating to a medical condition during his administrative hearing. According to the KDR, the only time a potential medical condition was mentioned during the administrative hearing was during the cross-examination of Officer Ridgway by Rebel’s counsel. Rebel was not present at the hearing to testify. The KDR claims that because Rebel failed to present any evidence at the hearing on this claim, the court does not have jurisdiction to review the hearing officer’s decision with regard to that issue. The KDR characterizes its claim as a failure by Rebel to exhaust his administrative remedies.
The KDR did not argue this claim before the Court of Appeals. Ordinarily, claims not presented in an appellate brief are deemed abandoned and will not be considered by this court on petition for review. See State v. Greever, 286 Kan. 124, 131, 184 P.3d 788 (2008); Cooke v. Gillespie, 285 Kan. 748, Syl. ¶ 2, 176 P.3d 144 (2008). Issues relating to the court’s subject matter jurisdiction to hear a particular claim, however, may be raised at any time. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). This court has repeatedly held that if a person does not exhaust all available and adequate administrative remedies before filing a petition for judicial review of an agency action, the district court lacks subject matter jurisdiction to consider the contents of the petition. See Dean v. State, 250 Kan. 417, 427-28, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992).
We considered this exact claim in Kingsley, where we found that the KDR’s argument was not that the petitioner had failed to avail himself of the administrative procedure available to challenge the suspension of his driver’s license (a question of exhaustion), but rather was more accurately an argument that the particular issues raised in the petition for judicial review had not been preserved for appeal. See Kingsley, 288 Kan. at 408-11. We reach the same conclusion here.
After receiving the order of suspension from Officer Ridgway, Rebel filed a timely request for an administrative hearing. This hearing was held in October 2006, after which the hearing officer issued an administrative order affirming the suspension of Rebel’s driver’s license. Rebel then filed the petition for judicial review that is the subject of this appeal. In short, Rebel exhausted the entire administrative procedure available to him regarding the sus pension of his driver’s license. He therefore exhausted his administrative remedies in accordance with K.S.A. 77-612.
The KDR’s exhaustion argument is better understood as a claim that because Rebel did not present evidence regarding his medical condition at the administrative hearing, he did not preserve that issue for judicial review. This claim is important because in an appeal from a decision by an administrative agency, a party may only argue the issues raised at the administrative hearing. K.S.A. 77-617; In re Tax Appeal of Panhandle Eastern Pipe Line Co., 272 Kan. 1211, 1235, 39 P.3d 21 (2002).
The record before us contains no transcript for the hearing in this case. Instead, the only documentation contained in the record on appeal detailing what occurred during the administrative hearing are the administrative hearing notes, which contain the following notations under the section “Other issues raised”: “(1) R — did not refuse testing — medical condition prevented completion of test.”
As was the case in Kingsley and Bruch, the KDR’s claim that Rebel did not raise the claim regarding his alleged medical condition during the administrative hearing is not supported by the record. See Kingsley, 288 Kan. at 411-13; Bruch, 282 Kan. at 774. Rather, the administrative hearing notes list the precise issues for which Rebel is seeking review. We therefore conclude that these issues were preserved for review.
The decision of the Court of Appeals reversing the district court is affirmed. The decision of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.
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In a letter signed on April 14, 2009, addressed to the Clerk of the Appellate Courts, respondent William R. Chambers of Scottsdale, Arizona, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2008 Kan. Ct. R. Annot. 343).
At the time the respondent surrendered his license, a panel hearing was pending on a complaint in accordance with Supreme Court Rule 211 (2008 Kan. Ct. R. Annot. 313). The complaint concerned allegations of misconduct that Mr. Chambers violated Rules 8.4(c), (d) and (g) of the Kansas Rules of Professional Conduct. See 2008 Kan. Ct. R. Annot. 586.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that William R. Chambers be disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of William R. Chambers from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
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In a letter dated April 28, 2009, to the Clerk of the Appellate Courts, respondent Derek J. Shafer of Topeka, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2008 Kan. Ct. R. Annot. 343).
At the time the respondent surrendered his license, a panel hearing was pending on a complaint in accordance with Supreme Court Rule 211 (2008 Kan. Ct. R. Annot. 313). The complaint concerns allegations of misconduct that respondent violated Kansas Rules of Professional Conduct 1.3. (2008 Kan. Ct. R. Annot. 415), 1.4 (2008 Kan. Ct. R. Annot. 432), 1.15 (2008 Kan. Ct. R. Annot. 493), 8.1(b) (2008 Kan. Ct. R. Annot. 579), and 8.4(b) (2008 Kan. Ct. R. Annot. 586).
Additionally, at the time of the submission of respondent’s letter surrendering his law license, two other complaints were pending that alleged he engaged in similar misconduct.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Derek J. Shafer be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Derek J. Shafer from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
Dated this 6th day of May, 2009.
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The opinion of the court was delivered by
Johnson, J.:
Earl Brinklow seeks our review of the Court of Appeals’ decision affirming his convictions and sentences on six counts of aggravated indecent liberties with a child. Brinklow contends that the trial court erred in denying his motion to sequester witnesses; that the prosecutor’s misconduct denied him a fair trial; that the evidence was insufficient to support the convictions; that cumulative error denied him a fair trial; and that the district court violated his constitutional rights by considering his prior criminal history in determining his sentence. Finding that Brinklow was denied a fair trial, we reverse and remand for a new trial.
FACTUAL OVERVIEW
On April 16, 2001, Brinklow was living with his wife and her 11-year-old daughter, A.C., when he allegedly entered A.C.’s bedroom and touched her genitals while she pretended to be asleep. A.C. remembered the date by relating it to a school field trip to a base ball game 2 days later. A.C. said that thereafter, Brinklow repeated the offense once or twice a week.
On May 27, 2001, A.C. told her mother that Brinklow had been touching her, prompting a confrontation between mother and Brinklow, which led to the police coming to the Brinklow house. When asked by an officer if Brinklow had sexually abused her, A.C. looked at her mother before answering “yes.” However, A.C. was unable to continue the interview that night because she was crying and upset. Brinklow told the officer that he had not abused A.C.; that A.C. did not like him; and that mother had accused others of sexually abusing A.C. The following day, A.C. recanted her accusation, telling the officer that she had bed because she wanted Brinklow out of the house.
Brinklow and his wife separated after the incident. A.C. did not speak of the alleged sexual abuse until January 2005, when she attempted to commit suicide and was eventually placed in a psychiatric facility. There, she told staff that she had attempted suicide because she had been sexually abused by Brinklow. A.C. explained that her mother had instructed her to recant the initial allegation to avoid embarrassment. Later, her mother acknowledged that she had encouraged A.C. to recant the original accusation.
Brinklow was charged with six counts of aggravated indecent liberties with a child for the touching incidents alleged to have occurred between April 16, 2001, and May 24, 2001. After a jury convicted Brinklow on all counts, the sentencing court granted him a downward durational departure sentence. Brinklow appealed his convictions, and the State cross-appealed the durational departure sentence. The majority of the Court of Appeals panel affirmed both the convictions and the departure sentence. State v. Brinklow, No. 96,231, unpublished opinion filed April 4, 2008, rev. granted September 24, 2008. A dissenting judge would have found that Brink-low was denied a fair trial. This court granted Brinklow’s petition for review.
DENIAL OF MOTION TO SEQUESTER WITNESSES
Prior to the commencement of trial testimony, Brinklow moved to sequester the witnesses. The trial court noted that there was authority to sequester witnesses at a preliminaiy hearing but opined that in the absence of an agreement from the State, the district court did not have authority to order witness sequestration at trial. Accordingly, when the prosecutor objected, the trial court summarily denied the sequestration motion.
A trial court has discretion to order the sequestration of witnesses. See State v. Heath, 264 Kan. 557, 588-90, 957 P.2d 449 (1998). Therefore, as the Court of Appeals noted, the trial court was clearly mistaken about its authority to grant the motion to sequester witnesses. Brinklow, slip op. at 6.
Ordinarily, this court reviews a trial court’s sequestration decision for an abuse of discretion, and absent evidence that the defendant was prejudiced by a witness’ presence, the decision will not be reversed on appeal. State v. Dunn, 243 Kan. 414, 428, 758 P.2d 718 (1988). However, we have clarified that the highly deferential abuse of discretion standard is affected by the district court’s failure to properly consider or apply the correct legal standard. See State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). Likewise, the district court’s failure to exercise its discretionary authority can be grounds for reversal. See State v. Anderson, 40 Kan. App. 2d 403, Syl. ¶ 5, 192 P.3d 673 (2008) (trial court’s deference to jailer’s decision as to whether the defendant should remain shackled while in court was a failure to exercise court’s own discretion and was therefore an abuse of that discretion).
Notwithstanding the trial court’s application of an erroneous legal standard and the corresponding failure to exercise its discretion, the Court of Appeals found that reversal was not required because Brinklow had not shown that he was prejudiced by tire error. Specifically, the opinion declared that “Brinklow fails to cite any testimony demonstrating that witnesses tailored their testimony based on the testimony of others, the problem that sequestration is aimed to prevent.” Brinklow, slip op. at 6. A review of the mother’s trial testimony reveals that she tailored her testimony to that of the victim, A.C.
The mother was present during A.C.’s testimony in which A.C. described the particulars of the alleged criminal acts. In the direct examination of the mother, the prosecutor did not ask the mother to relate what A.C. had told her about the alleged abusive touching. Rather, the prosecutor asked, “Did she tell you, or describe for you the same thing she testified to earlier today?” The response was simply, “Yes.” The mother did not merely tailor her testimony to match that of A.C.; the mother adopted A.C.’s testimony by reference. The prosecutor’s question was tantamount to asking the mother if her testimony would be the same as A.C.’s testimony. One would be hard-pressed to conceive of a more direct example of one witness tailoring his or her testimony to that of another witness.
Moreover, at a pretrial motion conference, Brinklow’s attorney advised the district court that part of the defense strategy was to establish that the mother had a great deal of influence over A.C. Obviously, the defense had to establish that the mother and A.C. were acting together in making a false accusation. That task was hampered by both witnesses being in the courtroom together, so that the mother could simply adopt her daughter’s testimony.
In addition, Brinklow complains that he was prejudiced by the trial presence of Betty Jo Mitchell. She testified to being present in the Brinklow home on May 27, 2001, when A.C. related the accusations to the police officer. However, the police officer did not place Mitchell at the residence during the interview. Brinklow argues that he was prevented from challenging Mitchell’s presence at the residence by testing her knowledge of what transpired that night because Mitchell was able to learn what happened by observing the testimony of both A.C. and the mother. The Court of Appeals did not specifically address this complaint. Given our ruling on the mother’s testimony, we need not analyze the prejudicial effect on Mitchell’s testimony.
In conclusion, the district court erred in ruling that it did not have authority to sequester witnesses and consequently erred in fading to exercise its discretion to determine whether witnesses should have been sequestered in this case. The record reveals that the State elicited testimony from the mother which was directly tailored to the testimony of the victim. We cannot declare that the defendant did not suffer any prejudice from the trial court’s error. See State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004) (prejudice shown when the error could have affected the result of die trial).
PROSECUTORIAL MISCONDUCT
Brinklow asserts a number of instances of prosecutorial misconduct, both in the questioning of witnesses and in addressing the juiy. “When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of the alleged errors is analyzed in the context of the trial record as a whole.” State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008).
“We employ a two-step analysis in considering claims, of prosecutorial misconduct: First, the court must determine whether the prosecutor’s statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence; second, it must determine whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. [Citation omitted.]” State v. Scott, 286 Kan. 54, 77, 183 P.3d 801 (2008).
The second step, or plain error analysis, focuses on whether the misconduct is so prejudicial that it denies the defendant a fair trial and requires a harmlessness inquiry. 286 Kan. at 77-78. It requires consideration of 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. 286 Kan. at 78. None of these factors is individually controlling. Further, the third factor can never override the first two factors, until both harmlessness tests of K.S.A. 60-261 (prosecutor’s statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967) (error had little, if any, likelihood of changing the outcome of trial), have been met. “ ‘If this can be said, then certainly it will also be true “that the misconduct would likely have little weight in the minds of jurors.” ’ ” 286 Kan. at 79 (quoting State v. Tosh, 278 Kan. 83, 97-98, 91 P.3d 1204 [2004]).
Questioning of Witnesses
Brinklow argues that the prosecutor improperly questioned three witnesses: the State’s psychologist, the victim, and the defendant.
State’s Psychologist
Brinklow complains of the following exchange between the prosecutor and a psychologist who had examined A.C.:
“[Prosecutor:] You determined that [A.C.] exhibited symptoms of post-traumatic stress disorder, correct?
“[Psychologist:] Yes.
“[Prosecutor:] In your work with [A.C.], did you determine what had caused those symptoms? What had caused her post-traumatic stress disorder?
“[Psychologist:] Yes. [A.C’s] traumatic event was her sexual abuse that she reported.”
Brinklow contends that the prosecutor’s question elicited a comment on A.C.’s credibility and, thus, invaded the province of the jury. See State v. Crum, 286 Kan. 145, 151, 184 P.3d 222 (2008) (compelling a witness to comment on the credibility of another witness is improper; weighing the credibility of witnesses is the province of the juiy). We agree that the psychologist’s answer may well have crossed the line between opining on whether sexual abuse occurred and opining on who committed the abuse. See, e.g., State v. Lash, 237 Kan. 384, 385, 699 P.2d 49 (1985) (affirming district court’s ruling that psychologist could give opinion about whether victim had been sexually molested, but not about whether defendant committed the molestation). However, Brinklow did not object to the answer at trial. See K.S.A. 60-404 (requiring contemporaneous objection to preserve appellate issue on admissibility of evidence).
The narrow issue before us is whether the question propounded by the prosecutor was so improper as to constitute plain error, i.e., whether the question could have been answered without invading the province of the jury. The inquiry was whether the psychologist had determined through her work with A.C. what had caused the diagnosed posttraumatic stress disorder. The witness could have responded that she had determined that the causative trauma was sexual abuse, without referring to the specific instance of abuse reported by A.C. Accordingly, we find no misconduct in the prosecutor’s question.
Cross-examination of Defendant
Brinklow complains of the following exchange during his cross-examination by the State:
“[Mr. Lonker:] Okay. And your position is, as I understand it, that [A.C.] made up this story to get at you to get you out of the house?
“[Brinldow:] Exactíy, yes.
“[Mr. Lonker:] And as I understand you further that despite the suicide attempt in that, that [A.C.] made this up?
“[Brinklow:] That’s correct.
“[Mr. Lonker:] And is it your position that the suicide attempt was staged?
“[Brinldow:] Ahh, I don’t know what the doctors saw. I don’t know what exacdy [A.C.] did, so I really can’t say if it was staged or not.”
Brinldow relies on State v. Elnicki, 279 Kan. 47, 53-54, 105 P.3d 1222 (2005), where this court held that a “trial court has no discretion on whether to allow a witness to express an opinion on the credibility of another witness; such evidence must be disallowed as a matter of law.” Contrary to Brinldow’s assertion, Elnicki is not directly on point; that case involved the admission of defendant’s videotaped interview which depicted the investigating officer repeatedly calling the defendant a liar. The trial court’s denial of the defendant’s request to redact the offending portions of the tape was reversed.
Nevertheless, “[qjuestions which compel a defendant or witness to comment on the credibility of another witness are improper.” State v. Manning, 270 Kan. 674, 698, 19 P.3d 84 (2001). Taken out of context, the prosecutor’s inquiry as to whether the victim staged her suicide attempt would appear to elicit an opinion on the victim’s credibility.
However, in this case, the defendant’s opinion of the victim’s credibility had already been presented to the jury through Brink-low’s own testimony. His principal theory of defense was that A.C. and her mother had fabricated fire abuse allegations to get him out of the house. The challenged cross-examination question was merely designed to clarify the parameters of Brinklow’s defense theory, i.e., whether the defendant was asserting that the collusion between mother and daughter extended to the subsequent suicide attempt. In that 'Context, the question did not rise to the level of prosecutorial misconduct.
The Victim
Brinklow complains that the prosecutor improperly bolstered the victim’s credibility. First, by engaging in the following exchange:
“[Mr. Lonker:] Now, you’re obviously testifying here today. You’ve raised your hand and been administered the oath. What, to you, does raising your right hand as you’ve done mean?
“[A.C.:] That I’m only going to tell what really happened and nothing else.
“[Mr. Lonker:] Do you know what a lie is?
“[A.C.:] Yes.
“[Mr. Lonker:] Do you know what the truth is?
“[A.C.:] Yes.
“[Mr. Lonker:] And you know — do you know the difference between the truth and a lie?
“[A.C.:] Yes.
“[Mr. Lonker:] Do you agree and swear you will tell only the truth today?
“[A.C.:] Yes.”
Subsequently, the prosecutor inquired as follows:
“[Mr. Lonker:] And despite what’s been asked of you, the testimony you’ve given today, it’s still the truth, the whole truth, and nothing but the truth?
“[A.C.:] Yes.”
The Court of Appeals majority agreed with the State’s characterization of the questioning as merely establishing A.C.’s competency to testify, even though such an inquiry was probably unnecessary for a 15-year-old witness. Brinklow, slip op. at 10. Moreover, the opinion noted that the questions were repeated by defense counsel during A.C.’s cross-examination.
Brinklow points us to no authority for his argument that, if it is improper for a witness to comment on another witness’ credibility, it must be similarly improper for the witness to comment on her own credibility. That conclusion is belied in part by the fact that A.C. had already sworn an oath in front of the jurors to tell the truth. Perhaps one could argue that the subsequent questioning about telling the truth was cumulative, but it did not rise to the level of prosecutorial misconduct.
Addressing the Jury
Brinklow alleges one instance of prosecutorial misconduct during opening statements and three instances of improper comments during closing arguments.
Opening Statement
Brinklow contends that the State improperly vouched for A.C.’s credibility during its opening statement when the prosecutor stated:
“But what brought us here today was in January of 2005 [A.C.] tried to kill herself. She took a whole bottle of Tylenol and she cut her wrists and her arms. And when she got to the hospital and they said, “Why did you do that?’ She said, ‘Because of what Earl Brinklow did to me.’ And she described it again, exactly how it happened and exactly like I’m telling you.”
Apparently, Brinklow reads the phrase, “exactly how it happened,” to be the prosecutor’s argument that the events occurred exactly as the victim described them. In context, however, the statement conveys that the victim described the events in detail to the staff at the psychiatric facility, which description the prosecutor was relating to the jury in the opening statement. To the extent the jury could have ascribed an improper purpose to the comments, they fall far short of being reversibly gross and flagrant.
Misrepresenting the Burden of Proof in Closing Argument
In closing argument, the prosecutor repeatedly utilized the phrase, “sometimes you just know.” For example, the prosecutor said:
“I was trying my first jury case and I was all alone, because the partner that I was working with had to do a trial himself and so he tried to come up and check on me and I was sitting over lunch scribbling out the closing argument and he said, ‘Are you ready?’ And I said, “Well, I’m trying to be.’ And I kept scribbling. He said, ‘Brent, closing arguments come from here.’ And what I want you people to know that as 12 of you sit there sometimes you just know. Sometimes you just know.”
Subsequently, in wrapping up, the prosecutor argued:
“But I submit to you that as you evaluate the testimony of [A.C.] it fits with the totality of what you heard in this case. It fits and sometimes, ladies and gentlemen, you do just know and we ask you to find a guilty verdict against the defendant.”
Brinklow argues that the prosecutor s repeated use of the phrase, “sometimes you just know,” urged the jury to decide the case based upon what must have happened, rather than on what the evidence proved. He contends that by using the phrase the State intentionally diluted its burden of proving the crime beyond a reasonable doubt.
Brinklow relies on State v. Mitchell, 269 Kan. 349, 360-61, 7 P.3d 1135 (2000), where the prosecutor argued in closing that “ ‘the State’s burden of proof in this type of criminal case and in any criminal case is a common sense burden.’ ” This court found that remark was a misstatement of the law and misleading to the jury because it “led the jury to believe that it could convict Mitchell by using a burden of proof less than ‘reasonable doubt.’ ” 269 Kan. at 361.
The State counters by pointing to State v. Wilson, 281 Kan. 277, 286, 130 P.3d 48 (2006), where the prosecutor stated in closing argument:
“ ‘I want you to look at the evidence, remember all the testimony that you heard, and go back to that definition of reasonable doubt that, unfortunately, no one can say in precise words what it is.
“ ‘You just have to intuitively know when you see it.’ ”
This court rejected the defendant’s argument that the prosecutor committed misconduct by equating reasonable doubt with intuition. We interpreted that remark as suggesting that, “although reasonable doubt does not have a precise definition, jurors will instinctively know it when they see it.” 281 Kan. at 286. The Court of Appeals found the statements in this case to be more akin to the permissible remarks in Wilson. We disagree.
In Wilson, the prosecutor was clearly referring to the definition of reasonable doubt, i.e., a juror has to intuit when the level of evidence has eliminated that juror’s reasonable doubt as to the defendant’s guilt. Here, the prosecutor was suggesting that some times a juror will just know that the defendant is guilty, i.e., a gut-level intuition that the defendant committed the alleged acts is sufficient to convict.
Recently, in State v. Sappington, 285 Kan. 176, 169 P.3d 1107 (2007), the prosecutor characterized the test as being whether it was reasonable given the evidence that the defendant did the criminal act. We found that statement to be more egregious than the statement in Wilson and opined that the statement hád diluted the State’s burden of proof. 285 Kan. at 185-86.
If a jury cannot convict because common sense tells it the defendant is guilty and cannot convict because it is simply reasonable to believe the defendant did it, then it is likewise improper to convict because the jury just knows that the defendant did it. Such a suggestion is contrary to the concept of proof beyond a reasonable doubt and approaches, if not reaches, the level of gross and flagrant argument. Further, the prosecutor’s repeated use of the phrase, “sometimes you just know,” indicates an intentional theme which would not rule out the ill-will factor. Moreover, given the absence of forensic evidence and the victim’s initial recantation of the allegations, one cannot unequivocally declare the evidence overwhelming and unaffected by the impropriety in the closing argument.
Improper Vouching for Witnesses
Brinldow contends that the prosecutor improperly vouched for the State’s witnesses in closing argument. With respect to the psychologist, the prosecutor said:
“Well, she wasn’t diagnosing or even saying who committed the sexual abuse. She was just diagnosing this child and what was wrong with her. That’s all she was doing and I think that her testimony was rehable. It was credible and as I’ll show you more — ”
Given State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000), and its progeny, scant doubt should remain among prosecutors in this State that it is wholly improper to tell the jury that the prosecutor thinks a witness is rehable and credible. Here, the trial court recognized the impropriety and interrupted counsel to point out that he could not tell the jury that he found the psychologist’s testimony to be reliable, albeit the court did not admonish the jury. Cf. State v. Gleason, 277 Kan. 624, 642, 88 P.3d 218 (2004) (reversal not required “where the trial court sustains an objection and admonishes the jury to disregard the objectionable testimony, . . . unless the remarks are so prejudicial as to be incurable”).
While finding the prosecutors remarks to be improper, the Court of Appeals majority opined that it was neither gross nor flagrant, that it was not the product of ill will, and that it was, therefore, not plain error requiring reversal. Brinldow, slip op. at 20-21. We agree that, standing alone, the improper argument would not mandate reversal. However, it is a factor to be considered in assessing the cumulative effect of trial errors, especially in the absence of a specific admonition to the jury.
In addition, Brinldow complains about the following comments on A.C.’s testimony:
“What [A.C.] said yesterday is what you have to consider . . . She said that after she’d been sworn to tell the truth she has told consistent stories.”
We will not belabor the analysis of that comment. The statement merely relates what the victim said, and it resides well within the boundaries of fair comment on the evidence.
Appeal to the Jury’s Emotions
Brinldow points to several comments made by the prosecutor in closing argument that he believes were designed to appeal to the jury’s emotions and thus bring about a decision that was not based upon the evidence. See State v. Duke, 256 Kan. 703, 719-20, 887 P.2d 110 (1994) (prosecutor should not use statements intended to inflame the passions or prejudices of the jury). The Court of Appeals found that all of the statements, except one, was within the wide latitude given to the State to comment on the evidence. Brinklow, slip op. at 19. We agree.
The statement that gave the Court of Appeals pause was as follows:
“This family, there may have been a little more conflict and we’re not denying there was conflict. We’re not denying there was yelling. We’re not denying any of that. What we’re denying is that any of that entitles anybody to take the child hood of [A.C.] and that’s what happened. It’s — that’s what happens when these crimes are committed.” Slip op. at 17.
Previously, this court has held that the admission of irrelevant evidence regarding the effect of a crime on the victim or the victim’s family is error. See State v. Donesay, 265 Kan. 60, 88, 959 P.2d 862 (1998); see also State v. Henry, 273 Kan. 608, 641, 44 P.3d 466 (2002) (holding the reference to mother’s grief was designed to inflame the passions of the jury, denying a fair trial). Likewise, arguing for a conviction to give the victim justice is prosecutorial misconduct. See State v. Nguyen, 285 Kan. 418, 425, 172 P.3d 1165 (2007) (citing State v. McCorkendale, 267 Kan. 263, 285-86, 979 P.2d 1239 [1999]).
However, the Court of Appeals noted that the comment was isolated and fleeting. It opined that Brinldow had failed to establish the second prong of the prosecutorial misconduct test. Again, we concur when viewing the error on a stand-alone basis.
SUFFICIENCY OF THE EVIDENCE
Brinldow argues that his due process right to a fair trial was violated because it was impossible for him to have been convicted “as charged.” He relies on precedent from other jurisdictions to argue that the State was bound to prove the dates set forth in the bill of particulars, as such dates became material elements of the charged offense. See State v. Stewart, 353 N.C. 516, 517, 546 S.E.2d 568 (2001) (granting defendant’s motion to dismiss where there was a “dramatic variance between the thirty-one day time period of the offense alleged in the indictment and the evidence introduced by the State at trial, which encompassed a two and one-half year period” that prevented defendant from adequately presenting his defense).
To the extent that BrinHow’s complaint is a challenge to the sufficiency of the evidence, our review standard is well settled. See State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 (2008). However, that review does not include an independent weighing of the evidence or an assessment of witness credibility. See State v. Murray, 285 Kan. 503, 537, 174 P.3d 407 (2008).
Notwithstanding our review standard, Brinklow argues that the weight of the evidence showed that he was never home alone with A.C. between April 18, 2001, and May 24, 2001 — the time period set forth in the bill of particulars. He argues that the uncontroverted facts proved that either A.C.’s mother or a babysitter was at the home on the nights in question.
The State concedes that it was bound by its allegations in the bill of particulars, but argues that it met its burden to show that the acts took place on the alleged dates through A.C.’s testimony. Specifically, A.C. testified that the incidents took place approximately twice a week from the time of the field trip to the baseball game until May 27. We agree that such evidence was sufficient to sustain the temporal requirements of the conviction. See State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997) (prosecutrix’ uncorroborated testimony sufficient if not so incredible and improbable as to defy belief).
As the Court of Appeals aptly explained, the evidence upon which Brinklow relies does not conclusively establish that he could never have been home alone with A.C. during the alleged time frame. Moreover, even conclusive proof of the presence in the residence of A.C.’s mother or babysitter would not render impossible the alleged acts of inappropriate touching in A.C.’s bedroom. Granted, such proof might call into question A.C.’s testimony that the incidents occurred when she and Brinklow were home alone. However, that is a matter for the jury to weigh in assessing credibility. It does not render the conviction invalid.
Brinklow asserts that “our courts have recognized situations where the story told by the alleged victim is so contradictory, so fraught with inconsistencies, or so unbelievable, that it would be an injustice to allow a conviction to stand on such a tale.” He cites to State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945 (1983), which is perhaps the only case of its kind in this state where the Supreme Court directly weighed the evidence and assessed the credibility of the prosecutrix to reverse a conviction for rape. The case before us does not call for such aberrant review. Any inconsistencies in the evidence did not render A.C.’s testimony of the occurrence dates to be so incredible or improbable as to defy belief. The evidence was sufficient to support the conviction.
CUMULATIVE ERROR
Brinklow asserts that the cumulative effect of the trial errors denied him a fair trial. The Court of Appeals majority, while acknowledging trial errors, opined that they were not so prejudicial as to warrant a new trial. Slip op. at 21. The dissent disagreed. Slip op. at D-3 (Pierron, J., dissenting).
“ ‘Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant.’ ” Nguyen, 285 Kan. at 437 (quoting State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 [2006]).
This trial began with an erroneous ruling on a witness sequestration motion and concluded with a number of improprieties in the prosecutor’s closing argument. Whether reversal is required by any one of the trial errors may be open to debate. However, the cumulative effect of the errors prejudiced Brinklow’s ability to obtain a fair trial. Given that the evidence against the defendant was not overwhelming, we must reverse the conviction and remand for a new trial.
CRIMINAL HISTORY
Brinklow argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated because evidence of his prior convictions used to determine his criminal history score was not proved beyond a reasonable doubt in violation of the holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Although we are reversing for a new trial, we will clarify our position on this issue.
This court has concluded that Apprendi does not apply to the use of prior convictions to calculate a defendant’s criminal history score under the Kansas Sentencing Guidelines Act. State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Further, we have analyzed post-Apprendi decisions and declined the invitation to overturn Ivory. See State v. Gonzalez, 282 Kan. 73, 118, 145 P.3d 18 (2006), and State v. Manbeck, 277 Kan. 224, 229, 83 P.3d 190 (2004). Brinklow does not persuade us to revisit those decisions.
Reversed and remanded for a new trial.
McFarland, C.J., not participating.
Marquardt, J., assigned.
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The opinion of the court was delivered by
Davis, J.:
The small claims court granted judgment against a used-car dealer for the cost of replacing a defective air conditioner in a vehicle purchased by a consumer. The used-car dealer appealed the monetary award; the district court affirmed but denied the plaintiffs’ request for attorney fees. Both parties appealed. The Court of Appeals reversed the district court, concluding that the implied warranty of merchantability “warrants the operation of major components that are necessary for the vehicle to operate” and that the air conditioner is not a major component of the used vehicle. See Hodges v. Johnson, 39 Kan. App. 2d 220, 225, 178 P.3d 59 (2008). We reverse the Court of Appeals, affirm the district court’s decision affirming the small claims court, reverse the district court’s decision regarding attorney fees, and remand the case to the district court for an assessment of those fees.
Facts
Jim Johnson owns a car dealership in Saline County that sells high-end, used vehicles. In January 2005, Johnson sold Dr. Merle Hodges and Melissa Hodges a 1995 Mercedes S320 with 135,945 miles for $17,020 (the sales price of $15,900 plus tax). Johnson had been driving the Mercedes as his personal vehicle for roughly 2 years before the sale. Johnson testified before the district court in this case that he told the Hodgeses when they purchased the Mercedes that it was a nice car in good condition. Dr. Hodges testified that Johnson said the car “was just pretty much a perfect car” and that Johnson “loved driving it.”
At the time the Hodgeses bought the Mercedes from Johnson, there was no discussion about the operation of the air conditioning, heating, or other components of the vehicle. Both Dr. Hodges and Johnson testified that they had no reason to believe that the air conditioner did not work when the Mercedes was sold to the Hodgeses.
In February 2005, about a month after he had bought the car from Johnson, Dr. Hodges noticed that the vent in the Mercedes did not circulate cool air and that the car emitted a strange smell. In March of the same year, the Hodgeses noticed that the Mercedes’ air conditioning did not work and contacted the Hodgeses’ mechanic, Virgil Anderson. Anderson added Freon to the air conditioner. About a month later, the air conditioner again was not working; Anderson added more Freon. The Hodgeses contacted Johnson to notify him of the air conditioning problem, and Johnson told them that some older vehicles may need a yearly boost of Freon to work properly.
In May 2005, the air conditioner faded a third time. After checking the air conditioning system for leaks, Anderson informed the Hodgeses that the Mercedes’ evaporator, condenser, and compressor needed to be replaced. Anderson explained that these repairs would cost approximately $3,000 to $4,000.
At some time around May 2005, a mechanic who worked for Anderson told the Hodgeses that Johnson had requested that the mechanic put a product called Super Seal into the Mercedes’ air conditioner in May 2003 (when he was using the car as his personal vehicle). The mechanic explained that the use of Super Seal complicated the current repair of the air conditioner and that the mechanic personally would not recommend Super Seal or apply it unless requested.
Johnson testified that he did not recall any problems with the Mercedes’ air conditioner after the mechanics added Super Seal in May 2003, though he could not recall whether additional Freon was added during that time. Johnson further testified that the air conditioning problem in 2003 only involved the car’s evaporator.
Amderson identified the condenser as the main problem with the Mercedes’ air conditioner in 2005. Anderson testified during the pendency of this case that he could not determine whether the problem with the Mercedes’ air conditioner existed at the time that the Hodgeses bought the car from Johnson or occurred at some time later.
The Hodgeses asked Johnson to pay to repair the air conditioning unit in the Mercedes. Johnson refused.
Shortly thereafter, the Hodgeses filed an action in small claims court against Johnson, alleging he caused them damages of $3,474 — Anderson’s estimate of the repair costs. The small claims court found in favor of the Hodgeses and awarded them $3,474 damages, plus $56 in costs and interest.
Johnson appealed to the district court. After holding a de novo hearing, the district court also found in favor of the Hodgeses, noting that “while [Johnson] may not have known of the failure of the air conditioning unit[,] . . . there is an implied warranty of merchantability,” and Johnson “is responsible to the plaintiffs to provide a car that is merchantable.” The court therefore entered a judgment in favor of the Hodgeses for $3,474, together with costs of $56 plus interest. The court found that attorney fees were not warranted because Johnson’s actions did not rise “to a level of misrepresentation.”
The Hodgeses appealed the denial of attorney fees to the Court of Appeals. Johnson filed a cross-appeal, arguing that the implied warranty of merchantability does not extend to air conditioning units on used vehicles. The Court of Appeals reversed in a divided opinion and held as a matter of law that the implied warranty of merchantability on a used vehicle extends only to “the operation of major components that are necessary for the vehicle to operate, such as the engine and transmission.” Hodges, 39 Kan. App. 2d at 225. The court further held that “it is the responsibility of the buyer to ensure that the components incidental to operation are in working condition.” 39 Kan. App. 2d at 225. Because it found that a car’s air conditioning unit is not a major component of its operation, the court held as a matter of law that the implied warranty of merchantability did not hold Johnson accountable for the failure of the air conditioner in this case. 39 Kan. App. 2d at 225.
Because the majority held that the implied warranty of merchantability did not apply to the Mercedes’ air conditioning system as a matter of law, the majority declined to reach Johnson’s other arguments that the Hodgeses bought the car at a significant discount and that the Hodgeses had failed to prove the exact amount of damages. 39 Kan. App. 2d at 225-26. Although the majority found that the district court had applied the wrong standard for determining whether attorney fees should apply, the majority concluded that the Hodgeses were not “successful parties” within the meaning of K.S.A. 61-2709(a); thus, attorney fees were not warranted. 39 Kan. App. 2d at 226-27.
Judge Leben dissented, stating that the majority applied the wrong standard for evaluating whether the implied warranty of merchantability applied in this case. According to Judge Leben, the question in this case was not whether the implied warranty of merchantability applied — a question of law — but whether the specific air conditioner in this Mercedes was covered by that warranty — a question of fact. Hodges, 39 Kan. App. 2d at 228 (Leben, J., dissenting). Judge Leben stated that because this case involved a question of fact, it should be reviewed for substantial competent evidence. Judge Leben further found that substantial evidence existed to support the district court’s decision in this case. 39 Kan. App. 2d at 230-31 (Leben, J. dissenting).
This court granted the Hodgeses’ petition for review.
Implied Warranty of Merchantability
Kansas’ implied warranty of merchantability is contained in K.S.A. 84-2-314, which states that “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” K.S.A. 84-2-314(1). The statute further states that in order for goods to be “merchantable,” they must be “at least such as . . . are fit for the ordinary purposes for which such goods are used.” K.S.A. 84-2-314(2)(c).
The implied warranty in K.S.A. 84-2-314 “set[s] minimum standards of merchantability.” International Petroleum Services, Inc. v.S & N Well Service, Inc., 230 Kan. 452, 454, 639 P.2d29 (1982). Although “more may be required by the parties’ agreement, course of dealing, or usage of trade,” the minimum standards contained in K.S.A. 84-2-314 “assure a buyer that if the goods received do not conform at least to normal commercial expectations, the buyer will have a cause of action by which he or she can secure compensation for losses suffered.” 230 Kan. at 454. This court has explained that the warranty seeks to strike a balance between “two extremes”:
“Even though the seller may be careful .not to make a single assertion of fact or promise about the goods, the ordinary buyer in a normal commercial transaction has a right to expect that the goods which are purchased will not turn out to be completely worthless. The purchaser cannot be expected to purchase goods offered by a merchant for sale and use and then find the goods are suitable only for the junk pile. On the other hand, a buyer who has purchased goods without obtaining an express warranty as to their quality and condition cannot reasonably expect that those goods will be the finest of all possible goods of that land. ... If an item is used or is secondhand, surely less can be expected in the way of quality than if the item is purchased new. [Citations omitted.]” 230 Kan. at 454.
A buyer seeking “[t]o establish a breach of the implied warranty of merchantability under 84-2-314(2)(c) . . . must prove first, the ordinary purpose of the type of goods involved, and second, the particular goods sold were not fit for that purpose.” Black v. Don Schmid Motor, Inc., 232 Kan. 458, 467, 657 P.2d 517 (1983). In Kansas, this requirement has been interpreted to mean that “the buyer must show the goods were defective and the defect existed at the time of the sale. [Citations omitted.]” 232 Kan. at 467; see also Dieker v. Case Corp., 276 Kan. 141, 162, 73 P.3d 133 (2003) (“To demonstrate a breach of the implied warranty of merchantability, plaintiff must show that the goods were defective, that the defect was present when the goods left the manufacturer’s control, and that the defect caused the injury sustained by plaintiff.”).
The extent of a merchant’s obligation to a buyer “depends on the circumstances of the transaction.” International Petroleum Services, 230 Kan. at 457. This flexibility is essential because
“any number of things can foul the operation of complex machinery, and in the case of used goods, not all of these problems amount to a breach of the warranty of merchantability.- The buyer’s knowledge that the goods are used, the extent of their prior use, and whether the goods are significantly discounted may help determine .what standards of quality should apply to the transaction.” 230 Kan. at 457.
In sales of used automobiles, this principle has been more specifically interpreted to mean that a “late model, low mileage car, sold at a premium price, is expected to be in far better condition and to last longer than an old, high mileage, ‘rough’ car that is sold for little above its scrap value.” Dale v. King Lincoln-Mercury, Inc., 234 Kan. 840, 844, 676 P.2d 744 (1984).
Relevant Case Law
The Kansas Supreme Court has considered the application of the implied warranty of merchantability to the sale of used automobiles on two separate occasions. In Black, the plaintiffs had purchased a 1-year-old Peugeot with slightly under 23,000 miles on it from the defendant. Shortly after the purchase, the plaintiff noticed that the Peugeot was leaking transmission fluid, that the accelerator would stick when the car was driven over 40 miles per hour, that the radio malfunctioned, and that the air conditioner leaked cold water when the car turned comers. The plaintiff made numerous attempts to have the seller fix the problem over the first 5 months that the plaintiff owned the vehicle, but the transmission problem worsened significantly during that time. The plaintiff eventually stopped driving the Peugeot after the clutch on the air conditioner fell out of the car onto the highway when the plaintiff was driving to work one morning.
The plaintiff sued to revoke his acceptance of the Peugeot from the defendant seller, arguing breach of express warranty and implied warranty of merchantability. A jury returned a verdict in favor of the plaintiff for the purchase price plus consequential damages.
On appeal, the defendant claimed that the plaintiff failed to present sufficient evidence to establish a breach of the implied warranty of merchantability. The Black court affirmed the district court’s award, noting that a claim for breach of implied warranty may be proved by circumstantial evidence. 232 Kan. at 467. The court found that the jury “could have inferred from the evidence presented the plaintiff s reasonable expectations as to the use of the Peugeot” and “could also have found that the defect existed when the car left [the defendant’s] control.” 232 Kan. at 467.
About a year after the court decided Black, it had the opportunity to again consider a case involving the implied warranty in a used-car sale in Dale. The plaintiff in that case purchased a 3-year-old Buick LeSabre Custom with about 33,000 miles from the defendant car dealer. The defendant had described the car to the plaintiff as “a ‘cream puff,’ meaning that it was excellent and in tip top condition.” 234 Kan. at 840. Less than a month after the plaintiff purchased the vehicle, the transmission failed. The defendant paid for a new transmission under the dealership’s express warranty. About a month later, the engine failed. Because the time period for the express warranty had expired, the defendant refused to cover the cost of replacing the engine block. The plaintiff sued for breach of implied warranty of merchantability.
The Dale court affirmed the judgment for the plaintiff, stating:
“A ‘cream puff,’ a relatively low mileage General Motors full-size automobile, represented by the dealer as being in excellent condition when sold, certainly can be expected to contain a motor and transmission which will give the new purchaser more than a few days’ service. Such a vehicle, with defective major components, is patently unmerchantable. The fact that the seller in this case was unaware of the true condition of the car is immaterial, for the act imposes no requirement of intent or prior knowledge on the part of a supplier. [Citation omitted.]” 234 Kan. at 843.
Analysis
The comments to K.S.A. 84-2-314 make clear that this implied warranty of merchantability applies by operation of law to “all sales by merchants” and “arises from the fact of the sale.” K.S.A. 84-2-314, Kansas Comment 1. Applying this standard to the facts before us, it is clear that the transaction in this case — the sale of the Mer cedes by Johnson to the Hodgeses — fits within the implied warranty. There is no dispute that Johnson is a merchant dealing in the sale of used vehicles or that the Mercedes is a “good” within the meaning of the statute. Thus, when Johnson sold the Mercedes to the Hodgeses, he implicidy warranted that the Mercedes would be “merchantable.” See K.S.A. 84-2-314(1).
While a court’s initial determination as to whether the implied warranty of merchantability applies to a particular transaction (based on the court’s determination as to whether the case involves a sale of goods by a merchant) is a question of law, the subsequent determination as to whether that implied warranty has been breached is a question of fact. Compare International Petroleum Services, 230 Kan. at 453-56 (legal discussion as to whether the implied warranty of merchantability applies) with 230 Kan. at 457-60 (factual discussion as to whether tire warranty was breached in that case). An appellate court generally reviews a district court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
In evaluating the evidence to support the district court’s factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008). A court ordinarily presumes that the district court found all facts necessary to support its judgment. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). A claim for breach of implied warranty may be proved by circumstantial evidence. Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123, 126, 499 P.2d 539 (1972).
The Court of Appeals majority recognized that the sale of the Mercedes triggered the implied warranty but concluded as a matter of law under K.S.A. 84-2-314(2) that the vehicle’s air conditioner was not covered by the warranty because the air conditioner did not affect the vehicle’s merchantability. Hodges, 39 Kan. App. 2d at 225. To reach this conclusion, the majority employed a three-part syllogism: First, for goods to be merchantable under the statute, they must be “fit for the ordinary purposes for which such goods are used.” K.S.A. 84-2-314(2)(c). Second, the majority concluded that the primary purpose for which used vehicles are used is transportation; thus only the major components of a vehicle that bear upon its ability to effectively transport people from one location to another affect the vehicle’s merchantability. Finally, the majority interpreted our past cases involving the warranty of merchantability in the sale of used vehicles to suggest that the warranty may not apply “unless a major component or several components are defective, causing the vehicle to become virtually inoperable.” 39 Kan. App. 2d at 225.
Applying this syllogism, the Court of Appeals majority determined that the air conditioner was not a major component of the Mercedes and thus did not impair the primary purpose for which used cars vehicles are employed:
“An air conditioner is not a major component of a car that is 10 years old with over 135,000 miles on it, and does not fall within the implied warranty of merchantability. We find no implied warranty of merchantability, considering the age of the car, the high mileage, and the fact that the Hodges provided no proof that the air conditioner did not work when they purchased the vehicle.” Hodges, 39 Kan. App. 2d at 225.
This conclusion is not supported by the case law. Although it may be that the implied warranty of merchantability does not extend to some components of a used vehicle in a particular transaction, this is a case-by-case determination in most cases — not a question of law. The Court of Appeals correctly acknowledged that the transaction involved in this case was subject to the statutory provisions of K.S.A. 84-2-314. But the Court of Appeals erred when it attempted to determine the extent of Johnson’s obligation to the Hodgeses as a matter of law.
The Court of Appeals majority’s approach is similarly unsupported by the statutes. K.S.A. 84-2-314(2)(c) defines merchantable goods as goods that are “fit for the ordinary purposes for which such goods are used.” (Emphasis added.) The Court of Appeals interpreted this provision to mean that a used vehicle must be fit for the primary purpose of transportation. This interpretation is inconsistent with the plain language of K.S.A. 84-2-314(2)(c), which clearly contemplates goods that may be put to more than one use. Although there can be little doubt that the primary purpose of a vehicle is transportation, the Court of Appeals’ opinion ignores the reality that a buyer may purchase a particular vehicle for a number of other purposes — among which may be safety, fuel economy, utility, or comfort in traveling to and from various destinations. See Dale, 234 Kan. at 843-44.
Contrary to the Court of Appeals’ conclusion, the extent of a merchant’s obligation under the implied warranty of merchantability depends on the circumstances of a transaction. International Petroleum Services, 230 Kan. at 457; Hodges, 39 Kan. App. 2d at 228-29 (Leben, J., dissenting). International Petroleum Services noted that not all problems that arise in “the operation of complex machinery” result in “a breach of the warranty of merchantability.” 230 Kan. at 457. The determination as to whether the implied warranty has been breached turns on a number of factors, including “[t]he buyer’s knowledge that the goods are used, the extent of their prior use, and whether the goods are significantly discounted.” 230 Kan. at 457.
The broad range of used goods that may be covered by the implied warranty of merchantability underscores the wisdom of this court’s previous recognition that a “late model, low mileage car, sold at a premium price, is expected to be in far better condition and to last longer than an old, high mileage, ‘rough’ car that is sold for little above its scrap value.” Dale, 234 Kan. at 844. In this case, we have a 1995 Mercedes S320 with 135,945 miles selling for $17,020 in 2005. Johnson related to the buyer that it was a nice car in good condition; Dr. Hodges testified that he was told the car “was pretty much a perfect car.” In short, this vehicle falls somewhere between the extremes of a “late model, low mileage car, sold at a premium price” and “an old, high mileage, ‘rough’ car . . . sold for little above its scrap value.” 234 Kan. at 844.
The implied warranty of merchantability applies to the transaction in this case as a matter of law under K.S.A. 84-2-314. The question remaining to be resolved is not the existence of this war ranty, but rather the extent of the sellers obligation under the warranty. Because this case does not involve either extreme on the spectrum of used vehicles, the resolution of this question is not a question of law, but rather a factual determination. The attempt by the Court of Appeals to convert this question into a legal determination amounts to error, and its decision in this regard must be reversed.
After hearing the evidence in this case, the district court determined that the Hodgeses were entitled to judgment against Johnson for the sum of $3,474, together with costs of $56 and interest, and thus affirmed the award of the smáll claims court. The question we confront in our review of the district court’s decision is whether its factual finding that Johnson breached the implied warranty of merchantability is supported by substantial competent evidence. See International Petroleum Services, 230 Kan. at 457-60; Owen Lumber Co., 283 Kan. at 915-16.
To demonstrate a breach of the implied warranty of merchantability, a plaintiff must show that the purchased goods were defective, that the defect was present when the goods left the seller’s control, and that the defect caused the injury sustained by the plaintiff. Dieker, 276 Kan. at 162. The circumstantial evidence in this case is sufficient to establish that the defect in the air conditioner existed at the time of sale. In 2003,2 years before the Hodgeses purchased the vehicle, the Mercedes’ air conditioner failed while Johnson was using it as his personal vehicle. Johnson insisted that his mechanic, against the mechanic’s advice, use a product called Super Seal to fix the problem. The Hodgeses discovered that the air conditioner was again defective as soon as the weather became warm enough to require climate control. The use of the Super Seal, the strong odor emanating from the vehicle’s ventilation system immediately after the sale, and the complete breakdown of the air conditioner when the buyer first attempted to use it all tend to establish that it was defective at the time of sale. While Johnson may not have known that the Mercedes’ air conditioner was defective when he sold the vehicle to the Hodgeses, there is no requirement that a buyer establish that the seller knew of a defective component at the time of sale to trigger the implied warranty. See Black, 234 Kan. at 843.
With regard to damages, there is no question that the complete failure of the air conditioner s operation led to the buyer replacing it. As this court has concluded:
“The general measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. K.S.A. 84-2-714(2). As concerns used or secondhand goods it is generally understood that the measure of damages is the cost of repair when repair is possible.” International Petroleum Services, 230 Kan. at 460.
The district court heard evidence concerning the cost of the necessary repairs to the Mercedes’ air conditioner. While there was testimony that employing used parts rather than new parts would reduce the cost of repairs and that the estimate quoted was too high, the court based its decision of monetary damages on the evidence of record. We will not substitute our judgment for that of the district court when the district court’s decision is supported by substantial competent evidence. In re Estate of Hjersted, 285 Kan. at 571.
We find that there is substantial competent evidence to support the district court’s conclusion that the implied warranty of merchantability in this transaction was not limited to only the Mercedes’ major components affecting transportation, but rather extended at a minimum to the vehicle’s air conditioning unit. We also find that there was substantial competent evidence to demonstrate that the air conditioning unit was defective at the time of sale and that the required repairs would cost $3,474. Accordingly, we reverse the Court of Appeals’ reversal of the district court’s judgment in favor of the Hodgeses and affirm the district court’s decision.
Attorney Fees
In light of our conclusion that the district court’s decision that the air conditioning unit was covered by the implied warranty of merchantability, we must address the Hodgeses’ claim that the dis trict court improperly denied their request for attorney fees under K.S.A. 61-2709(a).
The district court found that although the Hodgeses were entitled to the cost of repairing the Mercedes’ air conditioner based on the implied warranty of merchantability, attorney fees were not warranted because Johnson’s actions relating to the air conditioner did not rise “to a level of misrepresentation.” The Court of Appeals majority found that the district court had applied the wrong legal standard for attorney fees in small claims cases, as K.S.A. 61-2709(a) requires that the court award an appellee reasonable attorney fees if the appellee is successful on appeal. But because it concluded that the air conditioner was not covered by the implied warranty, the Court of Appeals held that the Hodgeses were not “successful parties” within the meaning of K.S.A. 61-2709(a); thus, attorney fees were not warranted. Hodges, 39 Kan. App. 2d at 226-27.
Discussion
In Kansas, courts are not permitted to award attorney fees without specific statutory authorization. Hawkinson v. Bennett, 265 Kan. 564, 574-75, 962 P.2d 445 (1998). K.S.A. 61-2709, which governs appeals from actions brought in small claims court, states that “[i]f the appellee is successful on an appeal pursuant to this subsection, the court shall award to the appellee . . . reasonable attorney fees incurred by the appellee on appeal.” (Emphasis added.) K.S.A. 61-2709(a).
Because the award of attorney fees under K.S.A. 61-2709 depends entirely on the court’s interpretation of this statute, this court’s review of a district court’s decision to grant or deny attorney fees is unlimited. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008) (interpretation of a statute is a question of law over which appellate courts exercise unlimited review).
This court considered the scope of the attorney-fees provision in K.S.A. 61-2709(a) in Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983). Szboszlay noted that under the statute, “the trial court is required to award the successful appellee reasonable at tomey fees incurred in the appeal.” 233 Kan. at 482. In defining the phrase “successful party,” the Szoboszlay court adopted the Court of Appeals’ analysis in Schuh v. Educational Reading Services of Kansas, 6 Kan. App. 2d 100, 101, 626 P.2d 1219 (1981):
“ ‘The term “successful party” has been held to be synonymous with “prevailing party.” [Citation omitted.] The term “prevailing party” is defined in Black’s Law Dictionary 1069 (5th ed. 1979) as:
“ ‘ “The party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered. (Citation omitted.) The party ultimately prevailing when the matter is finally set at rest.”
“ “With respect to the specific question of attorney fees, it has been stated a prevailing party is the person who has an affirmative judgment rendered in his favor at die conclusion of the entire case.’ [Citations omitted.]” Szoboszlay, 233 Kan. at 482.
The attorney fees provision in K.S.A. 61-2709(a) is mandatory. If an appellee prevails on appeal, then the court “shall” impose reasonable attorney fees. Szoboszlay, 233 Kan. at 482. We have determined that the district court correctly entered judgment in favor of the Hodgeses for the cost of repairing the air conditioning unit in the Mercedes when Johnson appealed the small claims award. Thus, under the plain language of K.S.A. 61-2709(a), the Hodgeses are the successful appellees and are entitled to “reasonable attorney fees incurred ... on appeal.” K.S.A. 61-2709(a). We therefore reverse the district court’s denial of the Hodgeses’ request for attorney fees and remand the case to the district court for an assessment of an appropriate award of attorney fees under K.S.A. 61-2709(a).
Equal Protection
Johnson claims that the attorney-fees provision contained in K.S.A. 61-2709(a) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution since it only allows for attorney fees when an appellee is successful on appeal from a small claims action. Johnson asserts that because the statute treats appellants and appellees differently, it is unconstitutional.
The Equal Protection Clause of the United States Constitution is found in the Fourteenth Amendment, which provides:
“All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1.
This principle of equal protection is also embodied in the Kansas Constitution Bill of Rights, § 1: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” See Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 251, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997).
The constitutional guarantee of equal protection is implicated when a statute treats arguably indistinguishable classes of people differently. Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 (1993).
When a court finds that a classification system treats similarly situated persons differently and so implicates equal protection, it must determine which level of scrutiny should be employed to evaluate the constitutionality of that classification:
“(1) the rational basis test to determine whether a statutory classification bears some reasonable relationship to a valid legislative purpose; (2) the heightened scrutiny test to determine whether a statutory classification substantially furthers a legitimate legislative purpose; [or] (3) the strict scrutiny test to determine whether a statutory classification is necessary to serve some compelling State interest.” In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 878, 112 P.3d 138 (2005) (citing Bair v. Peck, 248 Kan. 824, 830-31, 811 P.2d 1176 [1991]).
This court explained in Peden that “[t]he rational basis standard (sometimes referred to as the reasonable basis test) applies to laws which result in some economic inequality.” 261 Kan. at 252. The rational basis standard is a “very lenient standard.” See 261 Kan. at 252, 258. A classification system violates this test only if it “rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective.” Leiker v. Gafford, 245 Kan. 325, 363-64, 778 P.2d 823 (1989). Nevertheless, a classification “ ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ [Citation omitted.]” Thompson v. KFB Ins. Co., 252 Kan. 1010, 1018, 850 P.2d 773 (1993).
When a plaintiff attacks a statute as facially unconstitutional under the Equal Protection Clause, the plaintiff must demonstrate that “no set of circumstances exist” that survive constitutional muster. Injured Workers of Kansas v. Franklin, 262 Kan. 840, 850-51, 942 P.2d 591 (1997). For this reason, it is not enough to “[s]imply point[] out that [a statute] might not be rationally related to the state objectives sought under one set of facts.” 262 Kan. at 850-51. Instead, “a plaintiff asserting the unconstitutionality of a statute under the rational basis standard ‘ha[s] the burden “to negative every conceivable basis which might support [the classification].” ’ [Citations omitted.]” Peden, 261 Kan. at 253.
Johnson’s argument that K.S.A. 61-2709(a) violates the Equal Protection Clause relies primarily on the United States Supreme Court’s decision in Gulf, Colorado & Santa Fé R'y. v. Ellis, 165 U.S. 150, 41 L. Ed. 666, 17 S. Ct. 255 (1897), which held that a Texas statute violated equal protection because it allowed plaintiffs in cases against railroads to recover reasonable attorney fees but did not allow the railroads to collect such fees. The Hodgeses argue that this case does not indicate that the attorney-fees provision in K.S.A. 61-2709(a) is unconstitutional because the Texas statute in Ellis singled out a particular class of people as not receiving attorney fees — railroads—whereas K.S.A. 61-2709(a) only distinguishes between appellees and appellants.
Although appellants and appellees are arguably indistinguishable in that both party classifications are faced with the costs of a pending appeal, we conclude that the distinction for attorney fees drawn by K.S.A. 61-2709(a) has a rational basis and thus does not violate the Equal Protection Clause.
The Small Claims Procedure Act, K.S.A. 61-2701 et seq., was designed to “provide a forum for the speedy trial of small claims.” K.S.A. 61-2712. In order for a claim to be brought in small claims court, the value of the damages sought may not exceed $4,000. K.S.A. 61-2703(a). In general, the parties in small claims actions are not represented by attorneys. K.S.A. 2007 Supp. 61-2707(a). When a party is unsuccessful before a small claims court and appeals to the district court pursuant to K.S.A. 61-2709(a), the case is tried de novo and — as this case demonstrates — may become unwieldy. As a result, it is practically a foregone conclusion that attorneys will be involved and that the original checks that keep expenses low and allow for expedited resolutions of small claims will no longer apply. These reasons provide a rational basis for the legislature’s decision to restrict attorney fee awards to appellees in such cases, because the appellants have made the conscious decision in light of the costs that might accrue to nevertheless pursue an appeal.
The attorney-fees provision in K.S.A. 61-2709(a) does not violate the state or federal guarantees of equal protection.
Attorney Fees for the Present Appeal
The Hodgeses have also moved this court pursuant to Supreme Court Rules 5.01 (2008 Kan. Ct. R. Annot. 33) and 7.07 (2008 Kan. Ct. R. Annot. 60) for attorney fees incurred during the pendency of the appeal before this court. In an affidavit accompanying their motion for appellate attorney fees, counsel for the Hodgeses indicates that the total cost for bringing this matter before the Kansas Supreme Court was $4,106.50, which includes $3,780 in attorney services and $326.50 in other expenses (including copying charges, postage, and travel to Topeka). Although Johnson filed a response to the attorney-fees motion, his response objected to the grant of attorney fees in general because he did not believe the Hodgeses would be successful on appeal — not on counsel’s accounting of attorney fees and other expenses.
This court has authority to award attorney fees for services on appeal in cases where the district court had authority to award attorney fees. Supreme Court Rule 7.07(b) (2008 Kan. Ct. R. An-not. 60). Because the district court was required under K.S.A. 61-2709(a) to award the Hodgeses reasonable attorney fees as the successful appellees from a small claims award, we have discretion to award attorney fees on appeal.
We have considered the Hodgeses’ motion with attachments and conclude that the attorney fees and costs requested are reasonable. We therefore grant the Hodgeses’ request for reasonable attorney fees incurred during the pendency of their case before this court and award the Hodgeses $3,780 in attorney fees and $326.50 in other expenses. Since the district court erroneously denied the Hodgeses’ request for reasonable attorney fees and we have determined that reasonable fees should be awarded under K.S.A. 61-2709(a), we remand the cause to the district court for an assessment of an appropriate award of attorney fees incurred during the litigation of the cause before that court.
The Court of Appeals’ decision reversing the district court is reversed. The district court’s decision affirming the judgment in favor of the Hodgeses in the amount of $3,474, together with $56 in costs plus interest, is affirmed. The Hodgeses’ motion for attorney fees incurred during the pendency of the case before this court is granted; we therefore award the Hodgeses $3,780 in attorney fees and $326.50 in other expenses. The district court’s denial of the Hodgeses’ request for attorney fees is reversed, and the case is remanded with directions for the district court to award the Hodgeses reasonable attorney fees incurred during litigation before that court.
Nuss, J., not participating.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Davis, J.:
William Bradley King was convicted of rape and aggravated criminal sodomy. During the trial, the prosecutor asked King about his continued silence after receiving Miranda warnings. King did not object to these questions and attempts to raise the alleged violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), on appeal based upon a claim of prosecutorial misconduct. The Court of Appeals held that in the absence of a contemporaneous objection under K.S.A. 60-404, King’s Doyle claim was not preserved for review. State v. King, No. 95,088, unpublished opinion filed July 13, 2007. We granted King’s petition for review on this issue and on a question involving the requirements for ordering restitution pursuant to K.S.A. 21-4603d(b)(1).
In granting King’s review on the Doyle issue, we requested and the parties filed supplemental briefing on the following two questions:
“(1) Whether the contemporaneous objection rule, which has been applied to bar consideration of alleged violations of the rule of Doyle v. Ohio, 426 U.S. 610 (1976), can be avoided when the alleged violation is subject to characterization as prosecutorial misconduct.
“(2) Whether prosecutorial misconduct analysis should distinguish between behavior involving admission or exclusion of evidence (e.g., questioning of witnesses on topics covered by a previously granted motion in limine or on a defendant’s invocation of his [or] her right to silence or right to counsel) and behavior involving a prosecutor’s direct communication with members of the jury (e.gvoir dire, opening statement, closing argument).” State v. King, Order of the Kansas Supreme Court (No. 95,088, issued November 14, 2007).
These questions were prompted by this court’s previous recognition of a “potential conflict” between our prosecutorial misconduct analysis and K.S.A. 60-404 in the context of potential Doyle violations. See State v. Hernandez, 284 Kan. 74, 79, 159 P.3d 950 (2007). Today, we clarify that a contemporaneous objection under K.S.A. 60-404 must be lodged by a defendant at trial in order to preserve a Doyle issue for appellate review when the alleged error arises during a prosecutor’s questioning of a witness.
Facts
On May 3, 2003, L.E. and her aunt drove from Pittsburg, Kansas, to Joplin, Missouri, because L.E. had just broken up with her boyfriend. In Joplin, the two women spent time drinking at a bar until around 1 a.m. the following day; they then went to a local juice bar. There, L.E. met King, who agreed to drive her back to Pittsburg.
L.E. testified that on the way to Pittsburg, King stopped his truck on a deserted country road near Lamar, Missouri. L.E. explained that King removed L.E.’s clothing and engaged in sexual intercourse with her, although she repeatedly “[told] him no.” L.E. stated that she did not physically resist King because she “was scared” because she “didn’t know where to go” and “didn’t know where [she] was.” L.E. also testified that when they were finished having intercourse, King grabbed her by the hair and forced her to perform oral sex on him. L.E. testified to three incidents of attempted or completed intercourse and two incidents of forced oral sex.
According to L.E.’s testimony, after these incidents took place, King told her to put her clothes back on so he could take her home. She stated that King acted regretful and “kept apologizing for raping” her. L.E. also stated that King “told [her] that he had been in prison before and that he was not going back for nothing not even this.”
After the truck crossed the state line into Kansas, L.E. testified that King “stopped and . . . said he was going to finish what he started.” L.E.’s testimony at this point described a more violent repetition of the earlier sexual assaults in Missouri. According to L.E., King bit her Kps and neck and pulled her hair while they had intercourse; he then forced her to perform oral sex on him outside the truck while he continued to hold her hair.
L.E. explained that King got in the truck and drove away when L.E. drew the attention of another vehicle on the road, and L.E. watched as King drove back toward Missouri. She then went to a nearby home, knocked on the door, and informed the residents that she had been raped. Roughly 4 hours passed between the time that King and L.E. left Joplin and the time that the resident of the house called 911 to report the incident.
L.E. was examined by a sexual assault nurse in Pittsburg; this examination showed bruises, reddened areas, or scratches on L.E.’s shoulder, arm, abdomen, thigh, and feet. The nurse noted that L.E. had a “copious amount of hair falling out” and that she had a bald spot.
Steven Weston, chief deputy of the Barton County, Missouri, sheriff s department, was dispatched to Pittsburg on the morning of May 4, 2003, because “there had been an offense ... or attempt ... in Missouri, and then also again in Kansas.” Deputy Weston testified at trial that although he interviewed L.E., he “limited [his] questions just to what had occurred on the Missouri side of the border.”
Deputy Weston took custody of L.E.’s clothing, which was tested at a crime lab in Joplin. The rape kit associated with L.E.’s case was tested in Missouri and Louisiana. The final results of these tests were obtained in May 2004. An analysis of the vaginal swab indicated DNA from both King and L.E.’s former boyfriend.
Deputy Weston then located King at his place of work. King indicated that he had been with L.E. on the night in question and agreed to come to the sheriffs department later to discuss the incident. Later that day, King voluntarily appeared at the Barton County sheriff s department, signed a waiver of his Miranda rights, and provided Deputy Weston with a handwritten statement. The deputy testified at trial that, in general, King’s version of the events matched L.E.’s version “almost word for word with the exception of he left out any mention of any kind of sexual contact.” The deputy noted that other than this exception, King provided “pretty much the same story” as L.E. King’s written statement was admitted into evidence but was not made part of the record on appeal.
In his trial testimony, King stated that he offered L.E. a ride home from Joplin. Once in his truck they returned to the home of his parents — a farm near Lamar, Missouri, where King also lived— to obtain gas money. He testified that he and L.E. had consensual sexual intercourse in his vehicle a short distance from his parents’ house.
King explained that after he retrieved the money from the house near Lamar, he continued driving toward Pittsburg. King stated that he told L.E. while they were driving that he did not have a girlfriend but would “get together and have sex” two or three times per week with the mother of his son. King testified that L.E. changed at this point, stating “[i]t was like Jekyll and Hyde. She [L.E.] said I used her for sex” and told King to pull the truck over so “she could get some air.” According to King, this occurred just inside the Kansas state line.
King testified that L.E. remained “just kind of like Jekyll and Hyde,” so he said “forget this and . . . left her there.” King explained that he went to Pittsburg to put gasoline in his truck and then returned because he “kind of felt bad and . . . was going to pick her up.” He did not find L.E., but he “knew she had her cell phone ... so [he] just went home.”
The jury convicted King of rape and aggravated criminal sodomy. The court sentenced him to 221 months’ imprisonment for the rape conviction and 109 months’ imprisonment for the sodomy conviction and ordered that the two sentences run concurrently. The court also ordered King to pay restitution in the amount of $317 to L.E. and $1,210.07 to the Crime Victims Compensation Board.
King appealed, claiming reversible error in (1) the admission of prior crimes evidence without a limiting instruction; (2) prosecutorial misconduct; (3) cumulative error; (4) ordering him to pay restitution without making findings on the record regarding his ability to pay these amounts; (5) ordering him to reimburse the Board of Indigents’ Defense Services (BIDS) for attorney fees without making findings on the record regarding his ability to pay; and (6) using his prior criminal convictions to enhance his criminal history score without submitting these to a jury. The Court of Appeals affirmed the defendant’s convictions and sentence and remanded the case to the district court for a determination as to King’s ability to pay BIDS fees in fight of this court’s decision in State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006). King petitioned this court for review of all issues save the BIDS claim.
We granted review on the questions of prosecutorial misconduct and restitution and ordered supplemental briefing on the question of whether Doyle issues raised in the context of prosecutorial misconduct require a contemporaneous objection to be preserved for review. Additional facts necessary for resolution of these issues are set forth in this opinion.
(1) May a violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), be raised on appeal through A CLAIM OF PROSECUTORIAL MISCONDUCT ABSENT A CONTEMPORANEOUS OBJECTION REQUIRED BY K.S.A. 60-404?
In Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the United States Supreme Court held that a prosecutor’s use of a defendant’s postarrest silence to impeach that defendant’s credibility violates the Fifth and Fourteenth Amendments to the United States Constitution. Shortly thereafter, this court adopted the Doyle rationale as the law of this state in State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976). King argues that the prosecutor violated his rights under these opinions by asking a series of impermissible questions during cross-examination of the defendant at trial. We agree with the Court of Appeals and hold that because King failed to object to the prosecutor s questions at trial, the contemporaneous-objection rule of K.S.A. 60-404 forecloses our consideration of this issue for the first time on appeal.
Contrary to his written statement admitted into evidence, King testified at trial that he and L.E. did have sex during their encounter but insisted that the sex was consensual. King explained at trial that he “lied about” not having sex with L.E. in his earlier handwritten statement because he had been to prison before and did not want the police to harass him or to charge him for something he did not do. The prosecutor questioned King on cross-examination about his decision not to include the fact that he and L.E. had consensual sex in his original handwritten statement, when the following exchange took place:
“Q. [PROSECUTOR] . . . [b]ut you never told the officers in a handwritten statement that you had consensual sex with [L.E.]?
“A. [KING] No, ma’am.
“Q. To this day you still have never given a handwritten statement that says you had consensual sex with [L.E.]?
“A. Nobody asked me to again.
“Q. Did you ever contact the police to give a handwritten statement ever about consensual sex?
“A. No. You’re not supposed to if you have an attorney is what I’m told.
“Q. Wouldn’t you want them to investigate further?
“A. That’s why you tell your lawyer.
“Q. But you had no problems talking to the police when you were first accused of it; right?”
The defendant did not object to any of these questions at trial. Ordinarily, this lack of objection would bar appellate review of the prosecutor s questions. See State v. Sanchez, 282 Kan. 307, Syl. ¶ 1, 144 P.3d 718 (2006). On appeal, however, King claims that the prosecutor s questions during this exchange were impermissible comments on his postarrest silence in violation of Doyle and rose to the level of reversible prosecutorial misconduct. We have recently indicated that a defendant is not required to preserve claims of prosecutorial misconduct at trial by way of a contemporaneous objection — regardless of whether the alleged misconduct results from a prosecutor’s questions of a witness or a prosecutor’s comments during closing argument. See State v. Manning, 270 Kan. 674, 697, 19 P.3d 84 (2001). In light of the facts of this case, which involve a prosecutor’s questions and a defendant’s answers to those questions at trial but no allegedly improper comments by that prosecutor during final argument, we now reexamine our decision in Manning.
The Court of Appeals found that King’s failure to object to the prosecutor’s questions at trial precluded the court from considering the issue on appeal. The Court of Appeals acknowledged the “ potential conflict’ ” between the requirement that a defendant object to an alleged violation under Doyle to preserve that issue for appeal and claims of prosecutorial misconduct, for which no objection is necessary to preserve review. Slip op. at 15-16 (quoting State v. Hernandez, 284 Kan. 74, 159 P.3d 950 [2007]). The court concluded, however, that because the essence of King’s claim involved the admission of evidence of his postarrest silence, the specific objection rule in K.S.A. 60-404 controlled. The Court of Appeals explained that “the gravamen of King’s complaint is that a Doyle violation occurred during questioning of King that caused the erroneous admission of evidence.” Slip op. at 18. Because King “[did] not complain of any Doyle-related prosecutorial misconduct as a result of the State’s closing argument,” the Court of Appeals held that the Doyle issue was not preserved for appeal. Slip op. at 18.
Our past decisions have recognized this conflict between the statutorily mandated contemporaneous-objection rule and the appellate standard for reviewing claims of prosecutorial misconduct. See State v. Drayton, 285 Kan. 689, 704-05, 175 P.3d 861 (2008); Hernandez, 284 Kan. at 79. We have declined to address that conflict until now, however, where the issue is squarely presented and the parties have been given the opportunity to fully brief and address the issue in oral argument. See Drayton, 285 Kan. at 705.
Discussion
The contemporaneous-objection rule is codified in K.S.A. 60-404 and provides that a timely and specific objection to evidence at trial is required to preserve issues arising from that admission on appeal:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
This court considered the legislature’s purpose for enacting the contemporaneous-objection rule in Baker v. State, 204 Kan. 607, 611, 464 P.2d 212 (1970), where we explained that the objection requirement is a “salutary procedural tool” that gives the district court “the opportunity to conduct the trial without using . . . tainted evidence, and thus avoid possible reversal and a new trial.” Baker also noted that the contemporaneous-objection requirement is “practically one of necessity if litigation is ever to be brought to an end.” 204 Kan. at 611.
Although our previous opinions have recognized a tension between K.S.A. 60-404 and our prosecutorial misconduct analysis in the context of Doyle questions, we have stressed the importance of the contemporaneous-objection requirement and the goals furthered thereby in a number of contexts. For example, in State v. Fewell, 286 Kan. 370, 389, 184 P.3d 903 (2008), this court recently found that the defendant’s allegations that the prosecutor committed reversible misconduct by commenting on the credibility of witnesses was truly an evidentiary question that was not preserved for appeal. Fewell explained:
“The purpose of the rule requiring a timely and specific objection is to give ‘ “the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial.” ’ State v. Moore, 218 Kan. 450, 455, 543 P.2d 923 (1975). Fewell’s claim of prosecutorial misconduct thwarts the purpose of the specific objection rule. This court has reiterated that ‘ “[t]he law of this state is realistic. Substance prevails over form.” ’ Murray v. Modoc State Bank, 181 Kan. 642, 647, 313 P.2d 304 (1957) (quoting Travis v. Bishoff, 143 Kan. 283, 285, 54 P.2d 955 [1936]). Fewell’s prosecutorial misconduct claim is truly an evidentiary issue that has not been preserved for appellate re: view.” 286 Kan. at 389.
Similarly, in State v. White, 284 Kan. 333, 344, 161 P.3d 208 (2007), the court held that the defendant’s claim of prosecutorial misconduct, which was based on allegations that the prosecutor impermissibly elicited a narrative response from a witness, “more accurately concerns the alleged erroneous admission of evidence rather than prosecutorial misconduct.” The court in White recognized that the defendant’s prosecutorial misconduct claim “is presumably framed in this fashion, however, because he failed to object at trial, a requirement for appellate review of evidentiary complaints but not prosecutorial misconduct.” 284 Kan. at 344.
Our case law has long held that because Doyle involves the improper admission of impeachment evidence, Doyle questions are likewise subject to the contemporaneous-objection rule of K.S.A. 60-404. Parties must therefore raise a timely and specific objection to alleged Doyle violations in order to preserve those issues for appellate review. See Sanchez, 282 Kan. 307, Syl. ¶ 1 (“An appellate court does not review an alleged violation under Doyle . . . when the defendant fails to raise a timely objection with the trial court.”); State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737, 79 P.3d 169 (2003) (“A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal.”); State v. Fisher, 222 Kan. 76, 84, 563 P.2d 1012 (1977) (“Because the appellant failed to make timely, specific objections to the testimony he now urges was erroneously admitted, the point is not properly before this court on appeal.”).
Fisher involved an appeal from the defendant’s conviction of indecent liberties with a child and aggravated sodomy. Among the issues raised on appeal, Fisher argued that his constitutional rights had been violated when the prosecutor elicited testimony from a police detective and during Fisher’s cross-examination regarding his postarrest silence. This court noted that this testimony would normally raise a question under Doyle and Mims. But because Fisher failed to object to the testimony at trial, the court held that the issue was not preserved for appeal. The Fisher court explained:
“Failure to comply with the contemporaneous objection rule or some other state procedural requirement may bar a challenge, even upon federal constitutional grounds, to a conviction in a state court. Henry v. Mississippi, 379 U.S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564 [1965]. In State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255, we held that the accused had failed to preserve his claim of due process deprivation where no objection to the offending testimony was interposed at trial. Likewise, in State v. Shepherd, 213 Kan. 498, 516 P.2d 945, we said that tire alleged error of eliciting testimony of the accused’s post-arrest silence was not properly before this court where no objection was interposed at trial.” Fisher, 222 Kan. at 83-84.
This court applied Fisher in Haddock and concluded the contemporaneous-objection rule precluded appellate review of the two alleged Doyle violations for lack of objection. See Haddock, 257 Kan. at 974. Haddock alleged that the prosecutor twice made comments that the defendant, who was charged with tire murder of his wife, had never expressed any fear for his children’s safety, which would have been the natural response had he been innocent. The court found Haddock “failed to preserve this issue for appeal because no objection was made to the statements on that ground during trial.” 257 Kan. at 974 (citing Fisher, 222 Kan. at 83-84).
Our current case law does not, however, require a contemporaneous objection to preserve issues of prosecutorial misconduct for appellate review. See State v. Swinney, 280 Kan. 768, 779-80, 127 P.3d 261 (2006). The decision to review allegations of prosecutorial misconduct regardless of whether a specific objection has been raised is a fairly recent development in our case law. As recent as 1998, this court explained that “Kansas does not follow the plain error’ rule; reversible error cannot be predicated upon prosecutorial misconduct during closing argument where no contemporaneous objection has been lodged.” State v. Heath, 264 Kan. 557, Syl. ¶ 14, 957 P.2d 449 (1998).
In State v. Sperry, 267 Kan. 287, 308-09, 978 P.2d 933 (1999), this court broke with its previous case law and adopted the “plain error” rule for cases of prosecutorial misconduct where “the prosecutor’s misconduct is so prejudicial or constitutes a constitutional violation which, if not corrected, will result in injustice or a miscarriage of justice.” This newly adopted rule was explained more fully in State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999), which was decided the same day as Sperry:
“Recently, this court set forth the standards to be followed on appeal in determining whether improper remarks made by a prosecutor during closing argument provide a basis for reversal. [Citations omitted.] In those cases, we stated that Kansas does not ordinarily apply the plain error rule and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. If the prosecutor’s statements, however, rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. [Citation omitted.] Where the appellate court, in examining a claimed error of prosecutorial misconduct, determines that the misconduct may rise to the level of violating a defendant’s right to a fair trial, the claimed error will be considered. Thus, the plain error rule is recognized where the prosecutor’s misconduct is so prejudicial or constitutes a constitutional violation that if not corrected will result in injustice or a miscarriage of justice. [Citation omitted.]” (Emphasis added.) McCorkendale, 267 Kan. at 278.
The McCorkendale court further explained:
“In cases where the issue of prosecutorial misconduct is preserved by objection at trial, and in cases where not so preserved but where the claimed error has been determined to implicate a defendant’s right to a fair trial and, thus, rises to the level of a denial of the defendant’s Fourteenth Amendment right to due process, the appellate standard of review is the same. [Citation omitted.]” 267 Kan. at 278.
Notably, McCorkendale limited its application of the plain-error rule to cases involving allegations of prosecutorial misconduct during closing argument. See 267 Kan. at 278. In State v. Miller, 268 Kan. 517, 997 P.2d 90 (2000), this court again distinguished between claims of prosecutorial misconduct pertaining to the State’s questioning of witnesses and claims involving closing argument. The court dismissed the claims regarding the questioning because “the evidence admitted without objection falls under our contemporaneous objection rule.” 268 Kan. at 524. The Miller court found that the claims as to the closing argument were without merit because the “improper arguments were not so gross and flagrant as to have prejudiced the jury against the accused and denied him a fair trial.” 268 Kan. at 524; see also State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001) (denying review of an alleged Doyle violation that occurred during the prosecutor’s direct examination of a witness because no objection was raised to the testimony, but finding prosecutor’s comments on this testimony during closing argument constituted prosecutorial misconduct).
Nevertheless, in Manning, which was decided about a year after Miller, this court held that the same plain-error rule applied when considering closing arguments “also applies when a prosecutor is cross-examining a defendant who has chosen to take the stand.” 270 Kan. at 697. Applying this standard, the Manning court considered the defendant’s claim that the prosecutor’s questions of the defendant rose to the- level of prosecutorial misconduct even though the defendant did not object to those questions at trial. The court ultimately concluded that although the prosecutor’s questions were “wholly improper, . . . the improper questions did not prejudice the jury against the accused and deny him a fair trial.” 270 Kan. at 702. The question in this case relating exclusively to the prosecutor’s questioning of the defendant requires us to examine the prudence of these statements in Manning.
We acknowledge that questions asked by a prosecutor during trial may not constitute evidence but rather may take the form of information the prosecutor wishes to convey to the jury. Thus, such questions arguably should not be subject to the contemporaneous objection rule in K.S.A. 60-404. Yet separating questions and answers in the context of an alleged Doyle violation has proved to be vexing. We have repeatedly acknowledged the potential conflict between the contemporaneous-objection requirement in the evidentiary context and our prosecutorial misconduct analysis. See Drayton, 285 Kan. at 704-05; Hernandez, 284 Kan. at 79. This conflict appears to have been perpetuated by two factors: (1) the difficulty in distinguishing evidentiary issues from prosecutorial misconduct; and (2) courts’ general willingness to analyze Doyle claims under whichever posture — evidentiary or prosecutorial misconduct — they are presented on appeal. We address each of these considerations in turn.
Evidentiary Questions Versus Prosecutorial Misconduct
The contemporaneous-objection requirement of K.S.A. 60-404 specifically applies to the admission or exclusion of evidence. Miller, 268 Kan. at 519-20. While a prosecutor’s questions at trial may not be evidence, such questions call for an answer, and both the question and answer given become part of the evidentiary or pros ecutorial misconduct claim. All of this occurs in the questioning of a witness upon direct or cross-examination — traditionally viewed as evidentiary matters that a district court judge may admit or exclude. The conclusion of the Court of Appeals that “the gravamen of King’s complaint is that a Doyle violation occurred during questioning of King that caused the erroneous admission of evidence” is a particularly apt description of what occurred in this case. State v. King, No. 95,088, unpublished opinion filed July 13, 2007, slip op. at 18.
When an alleged Doyle violation occurs at trial during a prosecutor’s questioning of a witness and that witness’ responses, the line between evidence and argument becomes blurred. Moreover, a prosecutor is permitted to ask leading questions during cross-examination. See Fisher, 222 Kan. at 81 (quoting Note, The Supreme Court 1970 Term, 85 Harv. L. Rev. 1, 195 [1971]). In these situations, it is the prosecutor’s question that contains the information that the prosecutor wishes to convey to the jury, while the witness either affirms or denies the veracity of the question’s content. See 81 Am. Jur. 2d, Witnesses § 716; see also State v. Ward, 10 Utah 2d 34, 37, 347 P.2d 865 (1959) (explaining that a leading question “in effect puts words in the witness’s mouth so the testimony is really that of the questioner and not the witness”).
Yet despite the apparent blurring of evidence and argument in some contexts, the United States Supreme Court has indicated that questions under Doyle are foreclosed from appellate review when a defendant fails to object to the offending question or testimony at trial. See Greer v. Miller, 483 U.S. 756, 765 n.5, 97 L. Ed. 2d 618, 107 S. Ct. 3102 (1987) (stating that particular comments by the prosecutor that allegedly violated Doyle were not before the Court on appeal because “defense counsel did not object to that portion of the prosecutor’s argument on this ground”). Under this approach, a prosecutor’s questions during the examination of a witness — even when these questions lead to a potential Doyle violation — fall under the evidentiary umbrella. Such an approach is consistent with this state’s case law requiring a timely and specific objection in order to preserve evidentiary issues for appellate review. See, e.g., Sanchez, 282 Kan. at 311.
Upon closer examination, we believe that it is problematic to review on appeal all alleged Doyle violations by way of prosecutorial misconduct claims when the defendant has not raised a specific objection to the relevant questions and answers at trial, as is required by K.S.A. 60-404. The current practice of reviewing such claims on appeal without trial objections renders the contemporaneous-objection rule meaningless in at least one evidentiaiy context and poses a threat that all trial problems — although ignored by defense counsel — may nevertheless be raised under the broad allegations of prosecutorial misconduct. See Baker v. State, 204 Kan. 607, 611, 464 P.2d 212 (1970) (stating that the contemporaneous-objection requirement is “practically one of necessity if litigation is ever to be brought to an end”). In recognition of this problem, the United States Supreme Court has stressed in the federal system that “[rjeviewing courts are not to use the plain-error doctrine to consider trial court errors not meriting appellate review absent timely objection — a practice which [the Court has] criticized as ‘extravagant protection.’ [Citations omitted.]” United States v. Young, 470 U.S. 1, 15-16, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985).
K.S.A. 60-404 clearly states that a “verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed” on the basis of an evidentiaiy issue absent a timely and specific objection. As a court interpreting and applying statutes, we are bound to give effect to the legislature’s intent if that intent can be ascertained. See State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). While the legislature has created exceptions to the rule requiring objections to preserve an issue for appeal in some nonevidentiaiy contexts, the legislature did not establish such an exception to the mandate of K.S.A. 60-404. Compare K.S.A. 22-3414(3) (issues arising from juiy instructions may be reviewed for clear error when no objection was raised at trial) with K.S.A. 60-404 (evidentiaiy questions “shall not” be the basis for reversal absent a timely and specific objection). Rather, the legislature’s intent in enacting K.S.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiaiy question for review.
We stress today the importance of this legislative mandate. K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial. Although our past decisions may have relaxed the objection requirement in the evidentiary context, this practice not only has led to confusion as to the standards that should be applied on appeal, but also has de-emphasized the role of counsel at trial and has impaired the gate-keeping function of district courts in this state. See Baker, 204 Kan. at 611. More importantly, this practice of reviewing evidentiary questions when no objection has been lodged runs contrary to the legislature’s clearly stated intent in K.S.A. 60-404.
We disapprove of our previous decisions that have granted appellate review of a prosecutor’s questions and a witness’ answers to those questions during trial without objection by way of a prosecutorial misconduct claim. From today forward, in accordance with the plain language of K.S.A. 60-404, evidentiary claims — including questions posed by a prosecutor and responses to those questions during trial — must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.
This court will continue to review a prosecutor’s comments to a jury during voir dire, opening statement, or closing argument which are not evidence on the basis of prosecutorial misconduct even when no objection was lodged at the trial level, although the presence or absence of an objection may figure into our analysis of the alleged misconduct. See State v. Miller, 284 Kan. 682, 719-20, 163 P.3d 267 (2007).
Conclusion
The alleged Doyle violation in this case occurred during the prosecutor’s cross-examination of King — an exchange that falls squarely within the period when the prosecution and defense offer evidence at trial. See K.S.A. 22-3414 (order of trial). Contrary to King’s characterization of his claim on appeal, he has presented an evidentiary question that may only be reviewed upon compliance with the contemporaneous-objection rule. K.S.A. 60-404.
There was no objection to the prosecutor s allegedly improper questions at trial. We conclude that the Court of Appeals therefore correctly determined the issue was not preserved for appellate review.
Additional Claim of Prosecutorial Misconduct
In addition to his claim involving the propriety of tire prosecutor s questions under Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), King asserts that the prosecutor committed reversible misconduct during closing argument by implying that his trial testimony was untruthful. In his closing statement, defense counsel stated that there were “huge and glaring inconsistencies]” in L.E.’s description of the night’s events. The defense stated that “[L.E.]’s stoiy grows over time. It gets better over time. She is more taken advantage of over time.” Defense counsel later argued:
“I don’t like to think that anybody ever tells me something that’s not true, but it happens and people have motivations. . . . This is one of the biggest and most expensive cases of buyers remorse of all time, but who’s going to end up being remorseful if you believe [L.E.]? Brad King.”
In her rebuttal at the end of closing argument, the prosecutor made the following statements that King now claims constitute reversible misconduct:
“[Defense counsel] has stated that he believes the person who has the most incentive to be untruthful is [L.E.] and he’s talked about the state’s awesome power; and what we’re doing to the defendant. The defendant is responsible for his own acts. I’m responsible for prosecuting. Who has the motive to be untruthful? It’s not [L.E.]. Who has the criminal history? Convictions including falsehoods and dishonesty? It’s not [L.E.]. The victim [L.E.] is not on trial. The victim [L.E.] has been consistent in what she’s told you. The evidence [that] has been submitted to you is consistent with what she’s told you. The person who has the motive to be untruthful is not [L.E.].”
King did not object to these statements at trial. On appeal, he claims that the prosecutor’s comments during her rebuttal effectively called the defendant a liar — -“if not done in so many words”— in violation of Kansas law.
The Court of Appeals rejected King’s claim that the prosecutor’s comments constituted misconduct. The court distinguished this case from those that had found instances of prosecutorial misconduct in that “[t]he prosecutor here suggested King had a motive to be untruthful. She did not offer her own personal opinion or belief that he was untruthful.” Slip op. at 21. The court also noted that the issue regarding a motive to be untruthful was originally raised in defense counsel’s closing arguments, wherein he claimed that L.E. had a motive to fabricate the story; thus, the defense had opened the door to the argument. Slip op. at 21. Finally, the court found that King actually testified during his direct examination that he had “lied” to the police during his handwritten statement and that the jury was instructed to disregard statements by counsel that were not supported by evidence. Slip op. at 21-22.
Our standard of review of a prosecutor’s alleged misconduct during opening statement or closing argument involves a two-step analysis: (1) Did prosecutorial misconduct take place, and, if so, (2) does the prosecutorial misconduct rise to the level of plain error and thus require reversal? See State v. Swinney, 280 Kan. 768, 779-80, 127 P.3d 261 (2006).
Because “[i]t is the duty of the prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction,” prosecutors are given wide latitude in arguing the cases before them. State v. Ruff, 252 Kan. 625, 634, 847 P.2d 1258 (1993). “Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence.” State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000).
The “wide latitude” allowed prosecutors is not limitless, however. In particular, we have explained that while prosecutors may “draw reasonable inferences from the evidence” during closing argument, prosecutors “may not comment upon facts outside the evidence. [Citation omitted.]” State v. McCray, 267 Kan. 339, 351, 979 P.2d 134 (1999). When a prosecutor argues facts that are not in evidence, this court has consistently found that “the first prong of the prosecutorial misconduct test is met.” State v. Ly, 277 Kan. 386, Syl. ¶ 4, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004).
In Pabst, we concluded that the prosecutor committed misconduct by calling the defendant or defense counsel liars at least 11 times during the course of closing argument. 268 Kan. at 507. According to Pabst, by making the conclusory (and derogatory) statements, the prosecutor was arguing his own viewpoint regarding the credibility of the defendant and other witnesses. The court explained:
“Pabst’s credibility was crucial to the case. The prosecutor placed before the jury unsworn testimony which it should not have considered: his personal opinion on Pabst’s credibility and the credibility of the State’s evidence. Stating facts not in evidence is clearly improper. [Citation omitted.] Accusing Pabst of lying goes far beyond the traditional wide latitude afforded to prosecutors in closing argument. [Citation omitted.] Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the jury.” 268 Kan. at 507.
Since deciding Pabst, this court has clarified that while “[i]t is improper for a prosecutor to accuse a defendant of lying,” a prosecutor still has “freedom ... to craft an argument that includes reasonable inferences based on the evidence and that when a case turns on which of two conflicting stories is true, certain testimony is not believable.” State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003). In Davis, the defendant argued that the prosecutor committed reversible misconduct by making several statements that the alleged victim’s story should be believed in light of the evidence presented at trial. This court found that the prosecutor’s comments during closing argument were not error because the prosecutor “did not blatantly call Davis a liar” but instead “stated reasonable inferences based upon the evidence,” which involved two conflicting versions of the events. 275 Kan. at 122. The Davis court further emphasized that the “prosecutor’s comments . . . did not [constitute] vouching for [the victim’s] credibility.” 275 Kan. at 122-23. The court concluded that the prosecutor’s comments were “within the latitude afforded the prosecutor during closing argument.” 275 Kan. at 123.
Similarly, in State v. Jones, 273 Kan. 756, 783, 47 P.3d 783, cert. denied 537 U.S. 980 (2002), the court explained that “[e]xposing the bias or motive for testifying is a proper subject for cross-examination, [citation omitted] and, by extension, the prosecutor is free to argue this point to the jury.”
In this case, as in Davis, the prosecutor never explicitly called the defendant a liar or stated that the defendant had lied. Instead, tire prosecutor argued — as an apparent response to the arguments of defense counsel — that L.E. was not the person who had a “motive” to be untruthful. Although the natural implication of this statement is that King did have a motive to conceal the truth, this argument was fair and based on the evidence. The jury in this case was called on to consider two divergent accounts of the events that took place on the night in question: that of L.E. and that of King. It was not improper for the prosecutor to argue that L.E. did not have a motive to be untruthful — this statement does not constitute vouching for the witness’ credibility. This conclusion is strengthened by the fact that defense counsel also made comments during closing argument as to whether L.E. or King had a greater motivation to fabricate a story.
The prosecutor’s comments during closing argument regarding the witness’ motivations to be untruthful were not improper.
(2) IS A DISTRICT COURT REQUIRED TO MAKE FINDINGS ON THE RECORD REGARDING A DEFENDANT’S ABILITY TO PAY BEFORE ORDERING RESTITUTION UNDER K.S.A. 21-4603d(b)(l)?
We also granted review on the question of whether the district court erred when it ordered King to pay restitution in the amount of $317 to L.E. and $1,210.07 to the Crime Victims Compensation Board (CVCB) without first making findings on the record regarding his ability to pay. King did not raise this issue before the district court.
Issues not raised before the district court are deemed abandoned and cannot be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). We have recognized a limited exception to this rule where consideration of an issue is necessaiy to serve the ends of justice or to prevent the denial of fundamental rights. State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007).
King claims that the restitution issue “can be considered by this Court for the first time on appeal because institution of a restitution order without proper Due Process of Law affects [the defendant’s] fundamental rights.” King does not explain, however, how the district court’s lack of findings on the record regarding King’s ability to pay the restitution costs violated his right to due process. In any case, any claim that the defendant’s due process rights were violated in this case is without merit, as he was present and represented by counsel at the hearing where restitution was discussed and determined. See State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006) (“The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.”). Furthermore, the Court of Appeals correctly found that King’s argument regarding restitution is not a due process claim but rather is a question of statutory inteipretation. See King, slip op. at 23.
Despite the fact that King’s restitution argument was not properly preserved for appeal, we granted review of this issue to underscore the distinction between the requirements for restitution under K.S.A. 21-4603d(b)(1) and those for reimbursement of fees to the Board of Indigents’ Defense Services (BIDS) under K.S.A. 22-4513 in light of our recent decision in Robinson, 281 Kan. 538. We clarify that the district court was not required to make findings on the record regarding the defendant’s ability to pay restitution before it could impose an order of restitution in this case.
Standard of Review
In State v. Dexter, 276 Kan. 909, 912, 80 P.3d 1125 (2003), we explained that an appellate court’s review of a restitution plan under K.S.A. 21-4603d(b)(1) “can involve three standards of review.” Questions concerning the “amount of restitution and the manner in which it is made to the aggrieved party” are reviewed under an abuse of discretion standard. 276 Kan. at 912. A district court’s factual findings relating to the causal link between the crime committed and the victim’s loss will be affirmed if those findings are supported by substantial competent evidence. Finally, appellate courts have unlimited review over legal questions involving the interpretation of the underlying statutes. 276 Kan. at 913.
As the Court of Appeals found when it considered King’s restitution argument in this case, the defendant’s claim turns on the interpretation of K.S.A. 21-4603d(b)(1). See King, slip op. at 23. Thus, our review is unlimited.
Analysis
A district court’s ability to impose a restitution plan during sentencing is governed by K.S.A. 21-4603d(b)(1), which provides in relevant part:
“[T]he 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. ... If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor.”
We considered the question of whether a district court must take a defendant’s ability to pay restitution into consideration before issuing an order under K.S.A. 21-4603d(b)(1) in State v. Goeller, 276 Kan. 578, 77 P.3d 1272 (2003). In that case, the defendant pled guilty to felony possession of methamphetamine and marijuana and pled no contest to misdemeanor driving under the influence. In addition to imposing a prison sentence, the district court issued an order that the defendant pay $1,000 per month during the defendant’s 12-month postrelease supervision to the victim of the head-on crash that resulted from the defendant’s DUI. The defendant objected to the district court’s restitution plan as unworkable in light of the fact that he would be in prison before he was required to pay the restitution and would not be able to work during that time.
On appeal, this court affirmed the district court’s restitution order, explaining at length:
“Goeller renews his district court objection that the amount of $1,000 per month is unworkable. He seeks reversal and a remand with instructions that the district judge enter a new order that takes his inability to pay into account.
“The plain language of K.S.A. 2002 Supp. 21-4603d(b)(1) [which is identical to the language of the current statute] requires restitution ‘unless’ the court finds a plan of restitution unworkable. Moreover, ‘[i]f the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor.’
“The design of this provision makes clear that restitution is the rule and a finding that restitution is unworkable the exception. It also leads us to conclude that it is a defendant’s burden to come forward with evidence of his or her inability to pay.
“In this case, Goeller presented no evidence of his inability to pay, and his own and his counsel’s statements about his former and likely future employment are adequate to uphold the district judge’s choice of amount under our abuse of discretion standard of review.” (Emphasis added.) 276 Kan. at 583.
As Goeller indicated, the plain language of K.S.A. 21-4603d(b)(1)—which is identical to the language of K.S.A. 2002 Supp. 21-4603d(b)(1) (the statute discussed in Goeller)—tates that a district court “shall” order restitution “unless the court finds compelling circumstances which would render a plan of restitution unworkable.” See 276 Kan. at 580. Under the statute, “restitution is the rule and a finding that restitution is unworkable the exception.” 276 Kan. at 583. Furthermore, this language makes it clear that the burden is on the defendant to demonstrate that a particular restitution plan is unworkable.
In this case, King did not raise the argument of unworkability before the district court at all. Not only would this lack of objection fail to preserve the issue for appellate review in the normal case, but it also fails to meet his burden of proving unworkability. Thus, the district court did not abuse its discretion when it ordered the restitution in this case.
In his argument on appeal, King still does not articulate why the restitution plan imposed by the district court is unworkable. Instead, he argues that the district court was under an independent obligation to make findings on the record regarding the plan’s workability, and the failure to make such findings constituted an abuse of discretion. In support of this argument, King cites Robinson, where this court held that a district court must make findings on the record regarding a defendant’s ability to pay before ordering the defendant to reimburse fees incurred by BIDS.
Robinson involved the interpretation of K.S.A. 22-4513, which governs the assessment of BIDS fees against a defendant in a crim inal case. Subsection (b) of that statute states that “[i]n determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” K.S.A. 22-4513(b). Considering this provision, the Robinson court explained:
“The language is mandatory; the legislature stated unequivocally that this ‘shall’ occur, in the same way that it stated unequivocally that the BIDS fees ‘shall’ be taxed against the defendant. Compare K.S.A. 2005 Supp. 22-4513(a), (b). The language is in no way conditional. There is no indication that the defendant must first request that the sentencing court consider his or her financial circumstances or that the defendant must first object to the proposed BIDS fees to draw the sentencing court’s attention to those circumstances.” 281 Kan. at 543-44.
The court held, based on “the clear and unambiguous wording of the statute at issue,” that “the sentencing court, at the time of initial assessment, must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating on the record how those factors have been weighed in the court’s decision.” 281 Kan. at 544, 546.
King argues that the court’s rationale in Robinson should be applied to the restitution statute in this case and that the court should similarly require that the district court make findings on the record regarding a defendant’s ability to pay restitution before issuing an order under K.S.A. 21-4603d(b)(1). The problem with this argument, however, is that the court’s holding in Robinson was based on the plain language of the statute at issue in that case, K.S.A. 22-4513, which specifically requires a district court to take into consideration “the financial resources of the defendant and the nature of the burden that payment of such sum will impose” before assessing BIDS fees against him or her. K.S.A. 22-4513(b). The restitution statute at issue in this case, K.S.A. 21-4603d(b)(1), contains no such language. In fact, the plain language of K.S.A. 21-4603d(b)(1) states that a district court “shall” order restitution “unless the court finds compelling circumstances which would render a plan of restitution unworkable.”
King also argues that this court should follow the example of the Tenth Circuit in United States v. Kunzman, 54 F.3d 1522, 1532 (10th Cir. 1995), which interpreted a federal restitution statute, 18 U.S.C. § 3664(a), as requiring that there be sufficient information in the record to demonstrate a defendant’s ability to pay the restitution ordered. The federal statute cited is similar to K.S.A, 22-4513(b) in that it required a presentence investigation report to consider “information relating to the economic circumstances of each defendant.” 18 U.S.C. § 3664(a); see Kunzman, 54 F.3d at 1532. Again, the Kansas restitution statute contains no such requirement.
This court held in Goeller that the language and structure of K.S.A. 21-4603d(b)(1) “makes clear that restitution is the rule and a finding that restitution is unworkable the exception” and that “it is a defendant’s burden to come forward with evidence of his or her inability to pay.” 276 Kan. at 583. Because King presented no evidence regarding his ability to pay the restitution, he did not meet his burden in this case, and the district court did not err in ordering him to pay restitution to L.E. and to the CVCB.
The decision of the Court of Appeals affirming the defendant’s convictions and sentence is affirmed. In accordance with the Court of Appeals’ opinion, the case is remanded to the district court for a determination on the record regarding the defendant’s ability to pay BIDS fees in accordance with this court’s decision in Robinson.
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The opinion of the court was delivered by
Johnson, J.:
In 1991, David L. Woodward pled guilty to kidnapping, two counts of sexual exploitation of a child, rape, indecent liberties with a minor, and felony murder in connection with the killing of a 5-year-old child and the sexual molestation of an 8-year-old child. In his direct appeal, we affirmed his sentence. State v. Woodward, No. 68,957, unpublished opinion filed January 21, 1994. The summary denial of Woodward’s 1995 motion pursuant to K.S.A. 60-1507 was affirmed by the Court of Appeals and review was denied by this court. Woodward v. State, No. 77,762, unpublished opinion filed January 8, 1999, rev. denied 266 Kan. 1117 (1999). Woodward returns to the appellate courts once more, appealing the summary denial of his 2007 motion to vacate his guilty pleas and dismiss the indictment based on newly discovered evidence. We affirm.
We are favored with two briefs of appellant: one filed by Woodward’s counsel and one filed by Woodward. Counsel’s brief states as its first issue the general, overarching question of whether the district court erred in denying Woodward’s motion to vacate his guilty pleas and dismiss the indictment. As a purported second issue, counsel states that “[w]eight should be given to Defendant’s supplemental brief and argument therein.”
On the first issue, counsel devotes a portion of his argument to urging us to abandon the abuse of discretion standard of review on plea withdrawals in favor of a de novo review where the defendant alleges that the State’s breach of a plea agreement denied him or her due process. On the merits, counsel argues that the prosecutor did not make a good-faith presentation of the plea agreement’s sentence recommendation, thereby influencing the sentencing judge to refuse the recommendation and deprive Woodward of the benefit of his bargain. On the second issue, counsel’s one-sentence argument asks that the issues raised in Woodward’s supplemental brief “be granted review and given their due weight and consideration.”
Likewise, Woodward’s pro se brief raises the issue of the “prosecutor’s reneging of plea agreement.” Additionally, Woodward asserts that the prosecutor violated K.S.A. 22-2910 and that this issue is based upon newly discovered evidence because he just learned of that statute’s existence. We will attempt to simplify the analysis of the appellant’s complaints.
BREACH OF PLEA AGREEMENT
As part of the plea agreement, the State agreed to recommend that the district court impose a consecutive sentence of 10 years to life on all of the counts other than felony murder, i.e., a controlling sentence of life, plus 10 years to life. The sentencing court ultimately imposed a “controlling sentence of life, plus an additional 30 years to life.” Woodward attributes the court’s rejection of the recommended sentence to the manner in which the prosecutor presented the bargained plea agreement recommendation at the sentencing hearing.
Standard of Review
Procedurally, Woodward’s allegation that the State breached the plea agreement was presented in a motion to withdraw his plea. To correct manifest injustice after sentence has been imposed, a court may set aside the judgment of conviction and permit the defendant to withdraw his or her plea. K.S.A. 22-3210(d). We have repeatedly said that the denial of a post-sentencing motion to withdraw a plea lies within the trial court’s discretion and an appellate court should not disturb that ruling absent an abuse of discretion. See, e.g., State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007). The appellant carries the burden of establishing an abuse of discretion. State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006).
However, we have stated:
“Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.” Shopteese, 283 Kan. at 340.
Here, the underlying complaint is that the State breached the plea agreement, which presents a question of law, subject to unlimited review. See State v. Marshall, 21 Kan. App. 2d 332, 336, 899 P.2d 1068, rev. denied 258 Kan. 861 (1995) (noting the standard of review for evaluating an alleged breach of plea agreement is de novo). Thus, our review of whether the State breached the plea agreement is unlimited, but the question of whether the district court should have permitted a plea withdrawal for the breach, if one occurred, is reviewed for an abuse of discretion.
Analysis
An expectation inherent in all plea agreements is that each party will honor the terms of the agreement. State v. Boley, 279 Kan. 989, 992, 113 P.3d 248 (2005). Our case law regarding plea agreement breaches is rooted in Santobello v. New York, 404 U.S. 257, 262, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). In Santobello, the United States Supreme Court held that a plea agreement is a promise that must be fulfilled by both parties. 404 U.S. at 262. If the State fails to uphold its end of the bargain, then the court must decide whether justice requires that the- promise be fulfilled or whether the defendant should have the chance to withdraw the plea. 404 U.S. at 262.
The State can breach a plea agreement by effectively arguing against the negotiated sentencing recommendation. See United States v. Grandinetti, 564 F.2d 723, 725 (5th Cir. 1977) (prosecutor told judge he had “serious problems” with agreed recommendation to run sentences concurrently). However, if the State actually makes the sentence recommendation that it promised, the prosecutor’s further comments in support of the recommended sentence do not breach the plea agreement so long as the comments do not effectively undermine the recommendation. See State v. Crawford, 246 Kan, 231, 237, 787 P.2d 1180 (1990); see also United States v. Benchimol, 471 U.S. 453, 455-56, 85 L. Ed. 2d 462, 105 S. Ct. 2103 (1985) (prosecutor not required to be enthusiastic about the plea agreement terms or to give reasons for the recommendation).
Woodward concedes that the prosecutor asked the sentencing court to follow the plea agreement. The transcript reflects that the prosecutor outlined the specific recommended sentence for each of the five counts, other than felony murder, and asked that they “run concurrent with each other.” The prosecutor then requested the mandated life sentence on the felony-murder charge and asked the court to “run that consecutive to the controlling 10 to life on the other counts.” In concluding her remarks, the prosecutor reiterated: “I would ask the Court to impose the sentence that the parties have agreed to,” which was the controlling sentence of life plus 10 years to life.
Woodward complains that the prosecutor “constructively reneged on the plea” by coupling her requests for the recommended sentence with “arguments as to why such a sentence should not be given.” He contends that the prosecutor s “arguments could only serve to anger the judge, prejudice the sentence recommendation, and inflame the passions and sentiments against the defendant, inevitably resulting in a much harsher and more punitive sentence.” Considering the context of the entire sentencing hearing, we disagree with Woodward’s characterization of the prosecutor’s remarks.
The hearing commenced with the defense counsel speaking on behalf of her client. Counsel pointed out that Woodward had been a law enforcement officer for approximately 20 of his 48 years of life; that he had “led an exemplary life until around the time of [the child’s] death”; that he had been married for approximately 20 years and had two children; that he had the support of his family; and that the evaluation from Lamed State Hospital diagnosing Woodward as a pedophile was flawed. Counsel indicated that the victims’ families had been consulted about the sentence recommendation and had agreed to it. Although defense counsel asked the court to follow the plea agreement, she also asked that the court make provisions for her client to “get the treatment that is so deeply needed.”
Defense counsel’s remarks were followed by those of Woodward’s wife, who said:
“I just more or less want to reiterate what she [defense counsel] said. I have been married to David for 22 years. He’s a good man. He’s been a good father. . . . He did not murder [the child]. It was an accident. He can’t erase the seriousness of what he’s done and eveiything; but he needs help, not to be punished and put away for the rest of his life. He needs help. And I was assured he would get help; and he does have the full support of his whole family, his sons, and myself.”
After Woodward declined the opportunity to address the court directly, the court asked the State for its recommendation. The prosecutor commenced by clarifying that the sentencing recommendation was that of the district attorney s office, not that of the victims. The prosecutor then reminded the judge, who had also presided at trial, of the heinous nature of the offenses and the losses suffered by the victims’ families. She referenced the diagnosis of pedophilia and opined that “the help that can be best afforded to Mr. Woodward is to make him not dangerous to the community and not dangerous to himself by incarcerating him.” The prosecutor pointed to facts that called into question the defense statements that Woodward was a “good father.” She described circumstances that refuted the assertion that the killing was accidental, such as Woodward’s failing to call for emergency help, throwing the child’s body in a ditch, and hiding the homicide for 5 years. She argued that Woodward’s having been a law enforcement officer actually made the circumstances more egregious because of the trust that position should engender.
In essence, the prosecutor’s arguments appear to have been directly tailored to address the defense’s attempt to cast Woodward in a favorable light. The plea-bargained recommended sentence was not the minimum which the court could impose. If the sentencing court had found the defense’s proffered mitigation to be compelling, it was not precluded from doing something less than recommended, such as running all of the convictions concurrently. See State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990) (plea bargain terms not binding on trial court). In that context, the State was free to argue why the recommended sentence was also the most appropriate sentence to impose under the circumstances. The plea agreement did not require the prosecutor to ignore the defense’s attempts to minimize Woodward’s culpability.
Accordingly, we find that the prosecutor made an unequivocal recommendation that the sentencing court impose a sentence of fife plus 10 years to fife, as provided in the plea agreement. Nothing the prosecutor said at the sentencing hearing was intended to undermine the State’s recommendation or to suggest that the sentencing court impose a harsher sentence. The State did not breach the plea agreement, so there was no manifest injustice to correct. Accordingly, we need not consider whether the district court’s denial of the plea withdrawal motion was an abuse of discretion. The district court did not err in summarily denying Woodward’s motion to withdraw his plea.
K.S.A. 22-2910
In his pro se brief, Woodward attempts to fashion an argument, challenging the prosecutor’s use of the incriminating statements Woodward made to a detective. Woodward claims the statements were elicited by the detective’s proposal of “a diversion of psychiatric care (mental health placement) in lieu of prosecution and prison if [Woodward] would provide information without an attorney.”
Apparently, at some point relatively recently, Woodward discovered K.S.A. 22-2910, which in 1991 read:
“No defendant shall be required to enter any plea to a criminal charge as a condition for diversion. No statements made by the defendant or counsel in any diversion conference or in any other discussion of a proposed diversion agreement shall be admissible as evidence in criminal proceedings on crimes charged or facts alleged in the complaint.”
Woodward argues that it was manifest injustice for the State, in violation of K.S.A. 22-2910, to use information he “provided under the promise of a proposed diversion” to bring charges against him and to provide the factual basis for his subsequent guilty pleas. He further argues that he was “greatly prejudiced through the misconduct of both the police, by their obtaining incriminating information through a promise of a proposed diversion, and by the prosecutor through her use of this information to both charge and convict [him] of alleged criminal activity.” Because of this manifest injustice, Woodward asserts that the district court erroneously denied his motion to withdraw his guilty pleas and that his indictment should be dismissed. However, he appears to clarify that he is not raising an issue as to whether his confession was coerced.
While perhaps creative for a nonlawyer, Woodward’s arguments fail for a multitude of reasons. First, Woodward should have raised the issue in either his direct appeal or his 60-1507 motion. See State v. Flores, 283 Kan. 380, 384, 153 P.3d 506 (2007) (stating that where a defendant’s claim has not been raised at trial or on direct appeal, such a default prevents the defendant from raising the claim in a second appeal or a collateral proceeding). His assertion that his recent discovery of a statutory provision constitutes “newly discovered evidence” is unavailing. The maxim that ignorance of the law is no excuse is well established, longstanding, and widely known. See In re K.M.H., 285 Kan. 53, 75, 169 P.3d 1025 (2007); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982); State v. Anderson, 40 Kan. App. 2d 69, 71, 188 P.3d 38 (2008) (“The legislature and the public are well aware of this rule; Kansas law has applied it since 1882, at least.”).
Moreover, Woodward must contend with the waivers which accompanied his guilty pleas. “[W]hen an accused enters a voluntary plea of guilty, he is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto.” Jones v. State, 207 Kan. 622, 625, 485 P.2d 1349 (1971); see Trotter v. State, 218 Kan. 266, 270, 543 P.2d 1023 (1975); State v. Melton, 207 Kan. 700, 713, 486 P.2d 1361 (1971) (holding that a party is considered to have waived procedural irregularities upon entering a voluntary guilty plea “even though the defects may reach constitutional dimensions”).
Finally, a review of the statutory scheme for diversions reveals that Woodward’s reliance on K.S.A. 22-2910 is misplaced. A diversion agreement may be proposed only “[a]fter a complaint has been filed charging a defendant with commission of a crime ... if it appears to the district attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community.” K.S.A. 22-2907(1). Woodward’s claim that the prosecutor used his statements to bring charges against him runs counter to the requirement that the complaint must have been filed before the diversion is proposed. Moreover, the detective had no authority to propose a diversion, either before or after the filing of the complaint; that authority rests solely with the prosecutor. Most importantly, however, diversion agreements are expressly prohibited for defendants charged with a class A or B felony. K.S.A. 22-2908(2)(b) (Ensley 1988). Woodward was charged with both. See K.S.A. 1991 Supp. 21-3401 (felonymurder is a class A felony); K.S.A. 21-3420 (Ensley 1988) (kidnapping is a class B felony).
We find no merit in Woodward’s arguments that the use of his confession to commence criminal proceedings against him and to provide the factual basis for his guilty pleas violated the provisions of K.S.A. 22-2910. He has failed to establish manifest injustice, and the district court’s denials of his motion to withdraw his plea and his motion to dismiss the indictment were not erroneous.
Affirmed.
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The opinion of the court was delivered by
Nuss, J.:
This court affirmed Ray Garcia’s conviction for felony murder with rape or attempted rape as the underlying felony, but reversed his separate rape conviction and remanded with directions to vacate his rape sentence. State v. Garcia, 285 Kan. 1, 169 P.3d 1069 (2007). Garcia essentially argues that on remand the district court inappropriately determined that the felony murder was “sexually motivated,” which required his registration as a sexual offender pursuant to K.S.A. 22-4901 et seq. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.
Garcia makes three specific arguments in his appellate brief:
1. The district court had no jurisdiction on remand to reopen sentencing on Garcia’s felony-murder conviction, i.e., to make a “sexually motivated” finding which required his registration under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.
2. The district court failed to find beyond a reasonable doubt that Garcia’s crime was sexually motivated.
3. The district court violated Garcia’s Sixth and Fourteenth Amendment rights when it increased his punishment by requiring him to register as a sex offender without proof to a jury beyond a reasonable doubt.
Because we hold that the district court’s action on remand was to clarify, not change, its holding at the original sentencing hearing, we reject Garcia’s arguments. Accordingly, we affirm the district court.
The basic facts are set forth in Garcia, 285 Kan. 1. In November 1995, Wichita police found P.E., a 73-year-old woman, dead in her apartment. The coroner concluded that her genital injuries resulted from an assault that occurred hours before her death. He could not, however, state the specific cause of death or the mechanism of death: suffocation or heart attack from the stress of a physical assault. .
P.E.’s death eventually became a “cold case.” Additional leads were later developed which led to charges being filed against Garcia in January 2004, more than 8 years after the crimes were committed. The jury found him guilty of both rape and felony first-degree murder, with rape or attempted rape as the underlying felony.
Garcia’s sentencing occurred on January 20, 2005. The court imposed consecutive sentences: life in prison for the felony murder, which the court found was the primary offense, and 408 months’ imprisonment for the rape. The following colloquy occurred at the end of the hearing:
“[Court]: . . . Mr. Garcia, you are a convicted felon, as such you-are prohibited from carrying or possessing a firearm, pursuant to K.S.A. 21-4204, which makes that a separate felony offense. I will also direct that you submit specimens of your blood and saliva to the KBI [Kansas Bureau of Investigation], pursuant to K.S.A. 21-2511. You are not — I’ll also inform you that you do have a duty to register as provided by the Habitual Sex Offender Registration Act. Is there anything further, [prosecutor]?
“[Prosecutor]: No, I don’t believe so, Your Honor. ■
“[Defense counsel]: None by the defense, Your Honor.
“[Court]: Thank you.” (Emphasis added.)
The proceedings then ended.
The journal entry of judgment was filed that same day. Its Section III, captioned “Current Conviction Information,” states that first-degree murder is the “most serious offense of conviction.” That section further provides that the offense is contained in K.S.A. 21-3401(b); that the severity level for first-degree murder is “off grid”; that Garcia’s sentence for this offense is “Life 15”; and that he is subject to “life parole.” Finally, under the printed question “Was the crime sexually motivated?”, the journal entry states: “Yes.”
The next page of the journal entry of judgment provides that the high figure in the presumptive sentencing range for the rape conviction was 408 months and that the sentence actually imposed on the rape conviction was 408 months. Section VI, captioned “Recap of Sentence,” provided “life imprisonment (Life 15) plus 408 months.”
The last page of the journal entry provides in Section VI, captioned “Additional Comments,” that among other things “[t]he court has certified the defendant as a sex offender and has informed the offender of the duty to register as provided by the sex offender registration act.”
On October 26, 2007, this court issued its opinion in Garcia. We held that Garcia’s prosecution for rape violated the Ex Post Facto Clause of the United States Constitution and consequently reversed that conviction. However, we held that sufficient evidence supported his conviction for felony murder, even though it was based upon either rape or attempted rape as the underlying felony. We concluded: “The felony-murder conviction is affirmed, the rape conviction is reversed, and we remand to the district court with directions to vacate the rape sentence.” Garcia, 285 Kan. at 23.
After issuance of the mandate, the remand hearing was held on January 18, 2008. According to the transcript, early in the hearing the prosecutor expressed her opinion interpreting Garcia as simply remanding
“with directions to vacate the rape sentence, which is all, I think, you need to do. And then I can put that in the journal entry. And everything else that happened at the prior sentencing would stand. I ask the court at this time to make that finding and order.”
The transcript reveals that the court then did simply vacate the rape sentence and left untouched the sentence on the felony-mur der conviction. The judge stated, “[T]he only count that matters here today is the rape charge, which has been vacated. There is no reason for any resentencing on the Count One, the homicide. ... I am going to therefore vacate the sentence that I previously issued on Count Two [the rape].” (Emphasis added.)
From the transcript it appears that the prosecutor then requested a reaffirmation of the court’s purported January 2005 finding that the felony murder was sexually motivated, which would mandate Garcia’s registration as a sex offender under K.S.A. 22-4901 et seq.
“[Court]: I have ordered him, to, I believe, I had made a finding [of a sexually-motivated offense] before, because I ordered him to register as provided by the habitual sex offender registration act.
“[Prosecutor]: That’s correct. You’ve done that on both cases. But I just wanted it to be clear, now that the rape sentence has been vacated —
“[Court]: Right.
“[Prosecutor]: —■ that that still is an appropriate finding.”
Garcia essentially argues that the judge nevertheless proceeded to make a finding — for the first time — that the felony murder was sexually motivated. The judge first observed that the Supreme Court had rejected Garcia’s claim of insufficient evidence to support the felony-murder conviction based upon attempted rape. However, the judge then stated:
“Certainly, that [the rejection] would extend to making a finding at this time by me ... that there are factual circumstances sufficient for me to make a finding that ‘the crime’ was sexually motivated.” (Emphasis added.)
Garcia argues that on remand the court was limited to simply vacating the rape conviction and had no jurisdiction to make this purportedly additional finding. He cites State v. Dumars, 37 Kan. App. 2d 600, 603, 154 P.3d 1120 (2007), where the Court of Appeals held:
“When an appellate court has remanded a case for further proceedings consistent with its mandate, a district court is obligated to effectuate the mandate and may consider only those matters essential to the implementation of the ruling of the appellate court.”
Garcia further argues that the district court’s finding of sexual motivation from the original sentencing — as evidenced by the court’s reference there to the registration requirement — referred exclusively to the rape, which conviction has been reversed and its accompanying sentence vacated. As a result, he contends, there currently is no valid finding of sexual motivation and his registration requirement no longer exists.
The State generally responds that on remand there was no additional factual finding of sexual motivation for the felony-murder conviction. Rather, the court was simply explaining why the reversal of the rape conviction and vacation of the accompanying sentence had no effect upon its previous sexual motivation finding. The State argues that even if an inappropriate new finding had been made, it was of no consequence, again because the finding had already been made at the original sentencing, as confirmed and clarified by the journal entiy.
The State also argues that Garcia’s direct appeal was the proper time for him to have asserted his other claims, e.g., the district court’s purported failure to find beyond a reasonable doubt that Garcia’s felony murder was sexually motivated. Accordingly, he is now too late. As the State summarizes, “A defendant may not employ an appeal from a remand to raise new issues before this court he could have asserted at the time the direct appeal was originally pending.”
We agree with the State that the district court’s finding that the felony murder was sexually motivated was made at the original sentencing on January 20, 2005. Accordingly, we need not analyze the other arguments in detail.
We begin our analysis with an acknowledgment that the actual sentencing occurs when the court pronounces the sentence from the bench. State v. Howard, 287 Kan. 686, 692, 198 P.3d 146 (2008) (citing State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 [1980]). We also recognize that not all of the court’s statements at the January 2005 sentencing are clear. There was no express finding that either, or both, crimes of conviction — rape, and felony murder based upon rape or attempted rape — were sexually motivated. The court merely informed Garcia of his registration re quirement as a sex offender, which is a result of a conviction of a sexually violent crime. See K.S.A. 22-4902(b), (c)(1); K.S.A. 22-4904.
The court’s indistinctness, however, was clarified with its journal entry later that same day. While the oral pronouncement of sentence from the bench was not clear on which crimes were sexually motivated, the journal entry makes it expressly clear. In the section describing only the first-degree felony murder, in response to the question “Was the crime sexually motivated?”, the journal entry states: “Yes.” In other words, “ ‘the journal entry properly reflects the sentence imposed by the district court at the time of sentencing.’ ” Howard, 287 Kan. at 693 (quoting State v. Crawford, 253 Kan. 629, 649-50, 861 P.2d 791 [1993]).
We acknowledge that a journal entry is merely a record of the sentence imposed and the sentencing court has no jurisdiction to change the sentence after pronouncement. See Howard, 287 Kan. at 692. In our view, sentence clarification, and not modification, is what occurred. There simply is no indication that the court changed its mind between the sentence pronouncement and the journal entry.
This situation contains some parallels to our case law involving sentences orally pronounced from the bench that are later clarified, not modified, by another oral sentencing pronouncement, and then correctly journalized. In State v. Crawford, we held that the trial judge did not change his mind, vacate the sentence, and try to change the length. 253 Kan. at 649. Rather, “the judge consistently intended to sentence Crawford to 60 years to life. In articulating the terms, however, he either miscalculated or misspoke. However, upon inquiry by the State, he clarified that the four 15-years-to-life sentences were to run consecutively to each other.” 253 Kan. at 649. Similarly, in State v. Howard, we held that the trial judge either miscalculated or misspoke, but essentially stated that he never intended to impose a sentence like the defendant alleged: life, plus 15 years to life. We held: “In sum, the trial judge in the instant case merely clarified, and did not change his mind about, the sentences pronounced from the bench.” Howard, 287 Kan. at 695.
Contrast State v. Royse, 252 Kan. 394, 845 P.2d 44 (1993), in which the trial court imposed maximum sentences of 15 years to life on two counts of second-degree murder but failed to state whether the sentences were to run concurrently or consecutively; upon realizing its negligence, the court ordered the sentences to run consecutively. The Supreme Court held for the defendant, ruling, among other things, that the sentencing was complete when orally pronounced during the first court proceeding and could not be increased. Royse also noted K.S.A. 21-4608(a), providing that whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently. See State v. Zirkle, 15 Kan. App. 2d 674, 814 P.2d 452 (1991) (after sentencing defendant to term of 1 to 5 years’ imprisonment, court inquired as to jail time defendant had already served; upon learning he had already served 6 months, court vacated sentence and ordered it increased to 2 to 5 years; Court of Appeals held trial court changed its mind and sentence could not be increased).
Moreover, we observe that the court, the prosecutor, and defense counsel all signed the January 20, 2005, journal entry which declared the felony murder was sexually motivated. Indeed, no defense objection whatsoever appears in the record on this issue until after this matter was remanded 3 years later. Accordingly, we agree with the State that any objection by Garcia to any alleged district court shortcomings during its Januaiy 2005 sentencing or in its resultant journal entry should have been made well before the present appeal, i.e., in the original direct appeal. See State v. Johnson, 269 Kan. 594, 601, 7 P.3d 294 (2000). None was made there.
Affirmed.
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The opinion of the court was delivered by
Beier, J.:
This is a contract case involving an insurers duty to defend on an errors and omissions policy.
Plaintiffs Richard Miller, Ed Zeller, and Jeremy Kohn are licensed life, accident, and health insurance agents who referred several of their clients to John F. Usher and Associated Financial Solutions, Inc. (Associated), a company offering debt adjustment services. Usher, the owner of Associated, absconded with the clients’ funds while he was under investigation by the Kansas Attorney General’s office. Miller, Zeller, and Kohn made claims under their professional errors and omissions insurance policies with defendants Westport Insurance Corporation (Westport) and Employers Reinsurance Corporation (Employers). Coverage was denied. The agents settled with their clients and again sought coverage. Again, they were unsuccessful; and they then filed this action. The district court granted the insurers’ motion for summary judgment, and a panel of our Court of Appeals affirmed in Miller v. Westport Ins. Corp., No. 95,768, unpublished opinion filed February 16, 2007. We granted the agents’ petition for review.
We address the one question dispositive of this appeal: Did the lower courts err in concluding that insurers Westport and Employers had no duty to defend agents Miller, Zeller, and Kohn?
Factual and Procedural Background
Miller has his own business, T & M Financial, Inc. (T & M), and Zeller and Kohn work with T & M as independent contractors. All three men are agents who sell insurance for Woodmen Accident and Life Insurance Company. Woodmen requires its agents to investigate clients’ needs and financial ability, and it prohibits its agents from selling insurance that a client does not need or cannot afford.
In the course of their business, the agents referred certain clients to Associated, a nonprofit debt-adjustment organization, to enable the clients to pay insurance premiums and fund their purchase of other insurance products. The agents chose Associated because it was the only company that guaranteed its services would not have a negative impact on clients’ credit ratings. The agents did not receive compensation for these referrals. They continued to refer clients to Associated for approximately 1 year before the agents’ clients complained that their debts were not being discharged and that they could not get in touch with Associated.
Although the agents had “checked into the background” of Associated, they did not discover that it was not authorized under Kansas law to perform debt adjustment. In fact, Associated was under investigation by the Kansas Attorney General, and ultimately Usher entered into a consent judgment with the State under which he and Associated stipulated to multiple violations of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq.; the Kansas Credit Services Organization Act, K.S.A. 50-1101 (Furse 1994) et seq.; and the Credit Repair Organizations Act, 15 U.S.C. § 1679 (2000) et seq. Usher also agreed to permanently cease improper activities. Unfortunately, none of this was enough to prevent Usher from absconding with approximately $55,000 belonging to the clients of Miller, Zeller, and Kohn.
The Attorney General also investigated T & M and Miller, Zeller, and Kohn. The agents denied any wrongdoing and refused to enter into a consent judgment, but they did execute an “Assurance of Voluntary Compliance” that agreed to reimburse their clients for monies paid to Associated.
Each of the agents was at all pertinent times covered by a professional errors and omissions policy with defendants Westport and Employers. The agents duly notified the insurers of their claim for coverage under the policy. The agents’ claim included losses sustained by the 12 clients who had been referred to Associated.
The defendants denied coverage, asserting that the agents’ claim did not arise out of services rendered as licensed insurance agents. The agents requested, twice, that the defendants reconsider .the denial of coverage. Defendants again responded in the negative, this time also citing several policy exclusions. The agents responded, and the defendants again denied coverage.
Although the agents denied wrongdoing, faced with the cost of defending up to a dozen lawsuits, they settled their clients’ claims for approximately $55,000. Apparently only two of their clients filed a lawsuit before the settlement was effected.
The agents then brought this action in the district court. Their petition alleged that “defendants’ unjustifiable denial of coverage to Plaintiffs constitute^] a breach of contract,” and that, “due to defendants’ breach, the [agents] incurred losses in the form of claims paid in the amount of $55,335.02, and incurred legal fees for the defense of such covered claims in the amount of $16,080.00.”
The errors and omissions insurance policy on which agents relied provided coverage for loss “caused by any ‘wrongful acts’ committed by the ‘insured agent,’ arising out of the conduct of the business of the ‘insured agent’ in rendering services for others as a licensed life, accident and health insurance agent.” It also provided that Westport and Employers would “have the right and duty to investigate, defend, conduct settlement negotiations and enter into settlements for any ‘claim’ or ‘suit’ for which coverage is provided by the terms of this policy” and would pay “all expenses incurred in the defense of any ‘claim’ or ‘suit’ against the insured alleging any covered ‘wrongful act,’ and seeking ‘loss’ on account thereof, even if the ‘claim’ or ‘suit’ is groundless, false, [or] fraudulent.” The policy defines “wrongful act” or “wrongful acts” to mean “any negligent act, error, [or] omission . . . committed or alleged to have been committed by the insured agent.”
The policy exclusions in Section VII state that it does not apply to:
“B. [A]ny intentional, dishonest, fraudulent, criminal or malicious act, or assault or battery committed by or contributed to by any insured; [or]
“T. [A]ny ‘claim’ arising out of or in connection with a fraudulent or nonexistent entity.”
A “Key Point Summary” prepared by a plan administrator for the professional liability program indicated that financial planning activities would be covered under the policy.
After discovery, the parties filed cross-motions for summary judgment. After setting out the standard governing such motions, the district court stated: “[W]hile both sides extensively debate whether the referrals occurred ‘out of the conduct’ [of the agents’ business], neither side fully addresses whether the agents committed a ‘wrongful act.’ ” The district judge reasoned that a “wrongful act” was defined under the policy as a negligent act; and, because there was no evidence that the agents could have foreseen Usher’s theft of their clients’ money, the agents were not negligent and thus did not engage in wrongful conduct. In addition, the district judge ruled, even if the agents did owe a duty to their clients, the clients’ losses did not arise out of the agents’ referrals to Associated. Rather, the proximate cause of the losses was Usher’s theft of funds, which was not a natural and probable consequence of the agents’ referral of clients to a company without the correct legal status. The judge granted the defendants’ motion for summary judgment and suggested that the agents’ only recourse would be to “chase the thief.”
In its decision, the Court of Appeals panel came to the same conclusion as the district judge. It held that the agents’ referrals to Associated were not negligent; thus no coverage was triggered. Miller, slip op. át 6-9. The panel also addressed the agents’ argument that the question of proximate cause should have gone to a jury, concluding that the agents’ conduct could not, as a matter of law, be the proximate cause of their clients’ losses because the theft by Usher was not foreseeable. Slip op. at 10-12. The panel then addressed the agents’ argument that the policy covered allegations of negligent acts as well as the acts themselves. Although the panel agreed, it held that the agents failed to establish there had been any such allegations. Slip op. at 12-14. Rather, the Attorney General had alleged only violations of the Kansas Consumer Protection Act, the Kansas Credit Services Organization Act, and the federal Credit Repair Organizations Act; and the record on appeal did not contain the two clients’ petition.
Standard of Review
Our standard of review of a district court’s grant or denial of a motion for summary judgment is well established:
‘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.]” Farha v. City of Wichita, 284 Kan. 507, 511, 161 P.3d 717 (2007).
Moreover, the interpretation and legal effect of written instruments are matters of law over which an appellate court exercises unlimited review. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). The insurance policy at issue is a written instrument subject to our interpretation de novo.
Analysis
As set forth above, the policy at issue states that the defendants have a duty “to investigate, defend, conduct settlement negotiations and enter into settlements for any ‘claim’ or ‘suit’ for which coverage is provided by the terms of the policy.” It also states that Westport and Employers agree to pay “all expenses incurred in the defense of any ‘claim’ or ‘suit’ against the insured alleging any covered ‘wrongful act,’ and seeking ‘loss’ on account thereof, even if the ‘claim’ or ‘suit’ is groundless, false, [or] fraudulent.” Such language in liability insurance policies makes it “fair to describe [them] as ‘litigation insurance,’ a kind of coverage that protects insureds against the financial costs associated with being sued.” Jerry & Richmond, Understanding Insurance Law, § 111 [a] at 826 (4th ed. 2007) (citing Allstate Ins. Co. v. Campbell, 334 Md. 381, 392, 639 A.2d 652 [1994] [quoting Brohawn v. Transamerica Ins. Co., 276 Md. 396, 410-11, 347 A.2d 842 (1975)]; Auto Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131, 818 N.Y.S.2d 176, 850 N.E.2d 1152 [2006]).
“As between the duty to pay proceeds and the duty to defend, it is often said that the more expansive, broader duty is the duty to defend. The source of this observation is in the fact that an insurer is contractually obligated to defend even meritless suits that fall within the coverage. Presumably, the plaintiff s claims in meritless suits will be defeated, and the insurer will therefore not incur any obligation to provide indemnification. But before the merits are decided, the insurer must provide and pay for the insured’s defense. In effect, the insured receives ‘coverage’ for the defense itself, even though no duty to indemnify will ever exist in that situation. In other words, the duty to defend is broader in the sense that it is triggered in more situations than the duty to indemnify.
“. . . [T]he insurer must defend only actions against insureds that allege claims within the coverage. There is no duty to defend claims outside the coverage, although . . . there are circumstances where insurers end up defending non-covered claims, notwithstanding the absence of a contractual obligation that they do so.
“The foregoing is elucidated if one reflects upon the conditions that apply to the insurer’s duties to defend and to indemnify. The duty to indemnify exists as soon as the contract is formed, but the duty is a conditional one: the insurer’s duty to pay proceeds is not due and owing until the insured’s liability, which basically depends on how the law applies to the facts, is established. The duty to defend is not similarly conditioned: the duty to defend exists as soon as the claim within coverage is made, regardless of whether the law of negligence would impose liability in the circumstances. Because the duty to indemnify is conditioned and the duty to defend is not subject to the same or a similar condition, the duty to defend is triggered in more instances, ‘but this does not alter die essential underlying relationship between the insurer’s defense obligation and the existence of coverage.’ ” Jerry & Richmond, § lll[a] at 826-27 (citing, inter alia, Jerry, The Insurer’s Right to Reimbursement of Defense Costs, 42 Ariz. L. Rev. 13, 17-19 [2000]).
This is not a negligence action; it is not an action to establish the existence or absence of the agents’ liability to their clients. This is a straightforward contract dispute, brought by the agents against their insurers. The agents argue they have a colorable claim under their errors and omissions policy and that the insurers breached their contract by failing to investigate or defend on the agents’ behalf. When their clients’ money was stolen, the agents did everything they were required to do to invoke coverage under their policy for their potential liability. They notified the administrator of their insurers and then made a formal claim for coverage, including the losses sustained by all 12 clients. Because the agents ultimately settled with those clients, liability will never be determined. That question was not at issue in this case, and it and the concepts of foreseeability and proximate cause were inappropriate bases for its disposition. The district court and the Court of Appeals panel erred in ruling on the possibility of negligence when faced with dueling summary judgment motions; their actual charge was to determine whether, on the facts established by the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, there was a possibility of coverage under the language of the policy.
Under Kansas law, lawsuit pleadings are merely a starting point for the duty to defend analysis. They are “not dispositive. An insurer must additionally consider actual facts of which it is or should be aware when evaluating its duty to defend.” Jerry & Richmond, § 111[c][2] at 833. The insurer
“ ‘must look beyond the effect of the pleadings and must consider any facts brought to its attention or any facts which it could reasonably discover in determining whether it has a duty to defend.’ If these known or reasonably discoverable extrinsic facts give rise to potential liability on the insured’s part, the insured has a duty to defend. . . . This approach has become known as the ‘extrinsic evidence’ approach or rule. Under [this] approach, the insurer’s duty to defend still hinges on the potential for coverage, but the universe of information from which that potential must be ascertained is much greater [than the universe used in an approach limited to the ‘eight comers’ of a pleading and the applicable insurance policy].” Jerry & Richmond, § 111[c][2] at 833-34 (quoting Spivey v. Safeco Ins. Co., 254 Kan. 237, 245-46, 865 P.2d 182 [1993]; citing Steinle v. Knowles, 265 Kan. 545, 554, 961 P.2d 1228 [1998]).
See LDF Food Group, Inc. v. Liberty Mut. Fire Ins. Co., 36 Kan. App. 2d 853, 859, 146 P.3d 1088 (2006), rev. denied 283 Kan. 931 (2007).
In South Central Kansas Health Ins. Group v. Harden & Co. Ins. Services, Inc., 278 Kan. 347, 351-52, 97 P.3d 1031 (2004), this court carefully reviewed its precedent — including Steinle and Spruill Motors Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 684-88, 512 P.2d 403 (1973)—and stated that the cases “stand for the proposition that insurers have a duty to defend if there is a potential for liability.” This initial use of the word “liability” rather than “coverage” has the potential to confuse, but the opinion continues immediately: “They do not stand for the proposition that the duty exists after a finding that there is no coverage under the insurance policy. [Citations omitted.]” Harden, 278 Kan. at 352. The remainder of the Harden opinion also makes clear that the essential inquiry when determining the existence of a contractual duty to defend involves potential for coverage, not liability. See 278 Kan. at 352-53.
This is consistent with our prior pronouncements. See, e.g., Spruill, 212 Kan. at 686 (“duty to defend rests primarily on the possibility that coverage exists”; insurer has duty to defend if, based on pleadings and any reasonably discoverable facts, there is a possibility of coverage, even if remote); see also Aselco, Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 848, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001) (the duty to defend rests primarily on the possibility that coverage exists); cf. Spivey, 254 Kan. 237, Syl. ¶¶ 4, 5 (no duty to defend where policy specifically excluded coverage).
The coverage language of the policy before us was extremely broad. Its definition of wrongful acts included not only any proved negligent act, error, or omission but any merely alleged. There is no question that the agents’ clients suffered a loss. Counsel for the agents supplied the defendant insurers with the Assurance of Voluntary Compliance entered into by the agents and the Kansas Attorney General’s office, which recited allegations that T & M owed a fiduciary duty to its clients, that T & M held itself out as having specialized knowledge and skill in financial planning, that it implied it had performed due diligence regarding the viability and legal compliance of Associated, and that it had not, in fact, performed that due diligence. These allegations — breach of a fiduciary duty of care — were part and parcel of the agents’ 12 clients’ claims. They sounded in negligence, as well as raising the potential for liability under several statutory schemes. There is no dispute that the allegations in the petition of the two clients who filed a lawsuit also included negligence claims. Thus its absence from the record on appeal is of no moment.
Defendant insurers argue that the clients’ allegations against the agents did not arise, as required by the coverage language of the policy, out of the “conduct of the business of the ‘insured agent[s]’ in rendering services for others as a licensed life, accident and health insurance agent.” This may be artful, but it is still a dodge. The Assurance of Voluntary Compliance states that the clients’ reimbursement was being made to “resolve a disputed legal liability arising out of [the agents’] rending services for others as a licensed Life, Accident, and Health Insurance Agent, general agent, or broker.” Moreover, the policy’s Key Point Summary, evidently never disavowed by the defendants, made explicit reference to coverage of the agents’ financial planning activities. At a minimum, under our extrinsic evidence approach, this raises an ambiguity to be resolved in favor of the insured agents on the coverage/duty to defend issues. See Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 858, 137 P.3d 486 (2006); Jerry & Richmond, § 111[c][3] at 835-36.
We also reject defendants’ argument that the facts as known or as reasonably should have been known to them excused their duty to defend the agents because of one or more policy exclusions set forth in Sections VII(E) and VII(T), quoted above. See Steinle, 265 Kan. 545 (title insurance loan policy covered insured only in insured’s capacity as lender, not in capacity as vendor; insurer had no duty to defend insured in purchaser’s suit alleging defect in title conveyed by insured as vendor); Spivey, 254 Kan. 237 (policies’ intentional act exclusions not ambiguous, specifically excluded coverage for employee’s intentional tort claims).
With respect to insurance policies, defendants concede that the insurer bears the burden to prove that a loss or claim is excluded under the policy. See Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 29-30, 804 P.2d 1374 (1991); see also Marquis v. State Farm Fire & Cos. Co., 265 Kan. 317, 327, 961 P.2d 1213 (1998) (‘"Generally, exceptions, limitations, and exclusions to insurance policies require narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes the duty to define any limitations on that coverage in clear and explicit terms.”); 2 Holmes’ Appleman on Insurance, § 6.1 at 173 (2d ed. 1996) (“Most American courts apply a rule of construction that coverage terms are construed broadly and exclusions and limitations of coverage are construed narrowly.”).
Section VII(B) of the policy excludes coverage only if the agents committed or contributed to the commission of any “intentional, dishonest, fraudulent, criminal or malicious act.” There is no question that Usher committed the dishonest and fraudulent acts. The Assurance of Voluntary Compliance alleged certain deceptive acts by T & M, but these acts were never proved or admitted. Further, given the district court’s and the Court of Appeals’ rulings that Usher’s dishonest and fraudulent conduct was not foreseeable, rulings that defendants do not contest, the record on appeal cannot support a conclusion as a matter of law that the agents’ referrals to Associated constituted commission or contribution to commission of Usher’s dishonesty or fraud. Defendants’ mere suggestion that the agents provided illegal rebates to their clients also does not mean that the exclusion in Section VII(B) is met. Thus that section did not reheve defendants of their duty to defend the agents.
Section VII(T) of the policy excludes coverage for “any "claim’ arising out of or in connection with a fraudulent or nonexistent entity.” Defendants argue that Associated qualifies. We disagree. Usher committed dishonest and fraudulent acts and otherwise failed to comply in certain respects with Kansas law, but, on this record, it appears the Associated entity nevertheless existed. It was incorporated for ostensibly lawful purposes. Section VII(T) of the policy also did not relieve defendants of their duty to defend the agents.
Having determined that a duty to defend arose and was not undercut by the policy exclusions advanced on appeal by defendants, it is apparent that the summary judgment in favor of those defendants must be reversed and entered instead for the plaintiff agents. There was no compliance with the contractual duty to defend, and, as a direct result, the plaintiff agents incurred defense and settlement costs. See Jerry & Richmond, § lll[h] at 851-53 (compensatory, consequential damages recoverable on breach of duty to defend). The amounts are not contested.
This case is therefore reversed and remanded to the district court to vacate its previous order of summary judgment, to enter summary judgment in favor of plaintiffs in the amounts prayed for in their petition, and for such other orders as the district court deems necessary and consistent with the foregoing opinion.
Reversed and remanded with directions to the district court.
Rosen, J., not participating.
Leben, J., assigned.
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Per Curiam:
This is an original proceeding in disciphne filed by the office of the Disciplinary Administrator against Troy H. Ellis, of Tulsa, Oklahoma, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against the respondent alleged a violation of Kansas Rule of Professional Conduct (KRPC) 8.4(b) (2008 Kan. Ct. R. Annot. 586) (commission of a criminal act) and KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). A hearing was held before a panel of the Kansas Board for Disciphne of Attorneys, where the respondent was both personally present and represented by counsel. Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Troy H. Ellis (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 16979. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Tulsa, Oklahoma . . . . The Respondent was admitted to the practice of law in the State of Kansas on August 25, 1995.
“2. In 2001, the Respondent began working for Koch Industries, Inc. (hereinafter ‘Koch’) as in-house counsel. Then, in June, 2005, he was transferred to Invista, a subsidiary of Koch.
“3. Eurest Café is a food vendor for Koch and Invista. Eurest Café is not owned or operated by Koch or Invista.
“4. In August, 2007, Michelle Harjo and Patty Swartz, Eurest cashiers, and Dawn Knueppel, Eurest Catering Manager, observed the Respondent in the Eu- rest Café place food from the café on his tray, and leave the café without paying for the food.
“5. From September 3, 2007, through September 7, 2007, the cashiers observed the Respondent take food several times without paying for it.
“6. As a result of the Respondent’s conduct, on September 10, 2007, security employees installed a video camera in the café.
“7. On September 21, 2007, Ms. Harjo observed the Respondent enter the café, place food on his tray, and leave without paying for the food. The Respondent’s conduct was not captured by the video camera.
“8. On September 25, 2007, and September 27, 2007, the Respondent entered the café, placed food on his tray, and left without paying for the food. The Respondent’s conduct was captured by the video camera.
“9. On September 28, 2007, Mark Holden, General Counsel for Koch, and Gina Morris, Vice President for Compliance and Ethics for Invista, confronted the Respondent regarding his activities in the café. The Respondent denied stealing food from the café. Later that day and after viewing a video recording of his activities, the Respondent admitted the misconduct.
“10. Also on September 28, 2007, the Respondent sent an electronic mail message to Mr. Holden. In the message, the Respondent stated:
1 am embarrassed and disgusted for myself and apologize to you and the Koch companies. I Med. I stole. I violated the Code of Conduct.
1 can’t find any reason for my actions other than I wasn’t thinking. I could write paragraphs on what was going through my mind and various excuses for what occurred. But the simple fact is — none of that matters and there is no excuse. I have had to tell my parents, who are here, my wife and my children what I did. I received no sympathy and the same question — why? I have no good answer, but have searched within myself for any other type of behavior that remotely connects to this blatant error in judgment. I can come up with none.
T understand that I have placed you in a bad position and only you will be able to determine whether you can trust me again. This is an isolated incident and out of character. I encourage you to take a look at my past actions in making your determination.
T take full responsibility and accountability for this action. I understand that as a legal leader, I am responsible for leading the way towards [sic] integrity and compliance. I failed in this instance. I put this to you in writing because I know and believe that I conduct my actions with honesty, respect and integrity. I will have to prove that again.
1 apologize. With great humility and a heavy heart, I ask you please to consider my apology in determining your course of action.’
“11. Mr. Holden and Ms. Morris directed the Respondent to self-report his conduct to the Disciplinary Administrator’s office. On October 11, 2007, the Respondent sent a letter to the Disciplinary Administrator. The letter provided:
1 believe it is important that attorneys conduct themselves both in providing services to clients and in their personal affairs in accordance with the requirements of the law. I believe that I should self-report a potential conduct issue under the Kansas Rules of Professional Conduct (‘Rules’).
T have been employed as in-house counsel by Koch Industries, Inc. and IN-VISTA located in Wichita, Kansas over the last 6 years. Prior to joining these companies in-house, I practiced in the private law firm arena for 7 years. During the week of September 24, 2007,1 was accused by my company of taking lunches from the cafeteria without paying. I initially denied this accusation, but after the company presented me with certain evidence, I admitted that same day (in person and in writing) that due to oversight and time pressure I did not immediately pay for those lunches, but intended to in the future. I have offered to reimburse the cafeteria and my company on several occasions, the first being on September 28, 2007. No other evidence of misconduct was presented to me by my company and I have since been forced to resign my employment.
1 self-report this potential misconduct to you as I feel it is my obligation to do so under the Rules. I welcome the opportunity to meet with appropriate authorities of the Bar Association to answer any further questions you may have regarding this matter.
‘If I can provide you with any additional information regarding the nature or circumstances of this self-reporting, I stand willing to cooperate.’
“12. While the Respondent’s letter indicates that he later offered to pay for the lunches, the Respondent has never made that offer to Eurest Café. As of the date of the hearing, the Respondent had not paid for the food he stole.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b) and KRPC 8.4(c), as detailed below.
“2. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent committed a crime, specifically, the crime of theft. See K.S.A. 21-3701. Theft is a crime that reflects directly on the Respondent’s honesty and trustworthiness. Accordingly, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s honesty and trustworthiness, in violation of KRPC 8.4(b).
“3. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he took food from Eurest Café without paying for it. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. Committing the crime of theft involves dishonest conduct. Engaging in dishonest conduct is an aggravating factor.
“A Pattern of Misconduct. The Respondent took food from the café without paying for it on multiple occasions during the months of August and September, 2007. As such, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“Substantial Experience, in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1995. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 12 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct when he stole food from Eurest Café.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent was an active and productive member of the bar in Wichita, Kansas. He.enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by a number of letters and testimony received by the Hearing Panel.
“Imposition of Other Penalties or Sanctions. As a result of the misconduct, the Respondent was forced to resign his position with Invista.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.’ Standard 5.13.
“RECOMMENDATION
“The Deputy Disciplinary Administrator and counsel for the Respondent recommended that the Respondent be censured by the Kansas Supreme Court. The Deputy Disciplinary Administrator and counsel for the Respondent also recommended that the censure be published in the Kansas Reports.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports. Finally, the Hearing Panel recommends that the Respondent be ordered to make restitution to Eurest Café.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
The respondent elected not to file any exceptions to the final hearing report of the panel. Thus, the respondent admits the allegations of the complaint. Supreme Court Rule 212(d) (2008 Kan. Ct. R. Annot. 327). This court also finds that the allegations in the disciplinary complaint against the respondent have been established by clear and convincing evidence, and the court adopts the findings of the hearing panel.
The Disciplinary Administrator recommended to the panel that the respondent be censured by the Kansas Supreme Court and that the court publish the censure in the Kansas Reports. The respondent concurred in this recommendation when he appeared before the hearing panel. During his hearing before this court, however, the respondent agreed that he should be censured but asked that the censure not be published. The respondent recounted the punishment he had sustained as a result of his violations including the loss of his job, the impact upon his family, and the embarrassment in front of friends and family, together with his inability to find employment. We are not impervious to the difficulties experienced by the respondent because of his conduct. Yet we cannot ignore the fact that the respondent engaged in the criminal act of theft and upon discovery lied about his activities. Under these circumstances we conclude that the panel’s unanimous recommendation of published censure and restitution to Eurest Café is the appropriate discipline.
It Is Therefore Ordered that the respondent, Troy H. Ellis, be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2008 Kan. Ct. R. Annot. 266) for violations of KRPC 8.4(b) and (c).
It Is Further Ordered that the respondent make restitution to the Eurest Café for meals taken and report to the Disciplinary Administrator when restitution has been accomplished.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed against the respondent.
|
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On October 17, 2008, this court suspended the respondent, Michael L. Jones, from the practice of law in Kansas for a period of 6 months. See In re Jones, 287 Kan. 112, 193 P.3d 893 (2008). Before reinstatement, the respondent was required to pay the costs of the disciplinary action and comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
The Disciplinary Administrator s Office has verified that the respondent has fully complied with the conditions imposed upon him. This court finds that the respondent, Michael L. Jones, should be reinstated to the practice of law in the state of Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas as of the date of this Order.
It Is Further Ordered that this Order Of Reinstatement shall be published in the official Kansas Reports.
|
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The opinion of the court was delivered by
Davis, J.:
Following a jury trial, Jason Overstreet was convicted of aggravated assault and attempted first-degree murder. Before the Court of Appeals, he claimed the following trial errors required reversal of his convictions: (1) instructional errors on aiding and abetting, (2) prosecutorial misconduct, (3) the granting of additional summation after jury deliberation had begun, (4) the giving of an additional instruction to resolve juiy indecision after deliberation had begun, (5) ineffective assistance of counsel, and (6) improper conviction of two charges that were charged in the alternative. The Court of Appeals affirmed in an unpublished opinion. State v. Overstreet, No. 95,682, unpublished opinion filed February 8,2008. We granted Overstreet’s petition for review and now reverse and remand for a new trial.
Facts
Late in the evening on December 7, 2004, Damian McCall was in the drive-thru of a fast-food restaurant in Wichita when he noticed a green Chevy Tahoe pull up behind him. According to McCall, the driver of the Tahoe leaned out the window and looked at McCall’s customized Ford Expedition. McCall thought the driver looked like a rapper named Chingy and mentioned this fact to his friend with whom he was talking on his cell phone.
McCall picked up his food and started to drive home. The Tahoe pulled out immediately behind McCall without stopping to pick up any food at the drive-thru window. McCall eventually got on to the highway and drove several miles until he took the Pawnee exit. The Tahoe remained behind McCall during this entire drive.
Shortly thereafter, McCall approached his apartment complex and backed into a parking spot so he could watch the Tahoe. The Tahoe turned into the parking lot and drove past McCall’s Expedition; it then turned around and drove by McCall a second time. When the Tahoe reached the parking lot exit, it again turned around, blocking a truck that was nearby.
After turning around this second time, the Tahoe drove back toward McCall’s vehicle and stopped. McCall saw a man jump out of the passenger side and run toward his Expedition. When he observed the man “reach and pull something” from his person, McCall lay flat in his vehicle in case it was a gun. The man fired several shots into the front of the Expedition. McCall was not hurt.
Once the shooting ceased, McCall sat up and saw the man running away. McCall put his Expedition in drive and rammed the Tahoe. McCall’s vehicle flipped as a result of the collision, and the occupants of the Tahoe fled on foot.
When the police arrived at the scene, they found eight cartridge casings and two bullet fragments in the apartment complex parking lot. McCall’s expedition had been struck by bullets six times: five bullets hit the front of the SUV on the driver’s side, and one bullet struck the windshield on the passenger’s side.
The police also found three cell phones inside the Tahoe and one on the grass outside the driver’s door. One of the cell phones found inside the Tahoe on the front passenger-side floorboard belonged to Tracy Lafferty. Lafferty had loaned the cell phone to Jason Overstreet (the defendant in this case) the previous month, and it had never been returned.
Shortly after the incident, three men were apprehended at the nearby Wal-Mart: Kendrick Shears, James Walker, and Ishmel Agnew. Joshua Bauder and Tyler Mott — who had both been in the truck near the parking lot exit and had witnessed the shooting— identified Shears as the shooter and Walker as the driver of the Tahoe.
Police obtained fingerprints from three areas on the Tahoe. One print was found on the exterior of the driver s door, and two prints were found outside the passenger door. Tests matched the passenger-side prints to Shears, but none of the prints matched Agnew or Walker.
Further investigation ensued. During Detective Randall Reynold’s interview of Ishmel Agnew, Agnew mentioned the name “Jason” in connection with his description of the events but did not provide a last name. Reynolds also interviewed Linda Dubois, who owned the Tahoe. Dubois informed Reynolds that she loaned the Tahoe to a man named “Jason” at her friend Jeff s house.
Reynolds later spoke with Jeffrey Fay, Dubois’ friend, who indicated that the “Jason” discussed was Jason Overstreet. Fay testified at trial that he remembered Dubois lending Overstreet the Tahoe. According to Fay, Overstreet left in the Tahoe and returned with three or four black men, then left a second time.
Reynolds subsequently showed McCall a photo array that included Overstreet’s picture and pictures of five other similar individuals, asking McCall whether any of these men were the driver of the Tahoe that had followed him home from the restaurant. McCall circled Overstreet’s picture and wrote that Overstreet “resemble[d] the driver” but that McCall was “not one hundred percent sure.”
Fingerprint analysis also matched Overstreet’s prints with the fingerprint found on the Tahoe’s driver’s side door.
The State charged Overstreet with attempted first-degree (premeditated) murder or — in the alternative — aggravated assault, both based on an aiding and abetting theory.
At trial, McCall again identified Overstreet as the driver of the Tahoe, testifying that although he could not be 100 percent certain because it was dark on the night of the incident, he was “about 85, 90 percent sure.” McCall based his identification of Overstreet on the fact that he had seen the driver lean out of the window in the drive-thru and on his observation of the Tahoe as it followed him in the parking lot of his apartment complex, which had some lighting outside the apartment building.
Because Overstreet was not found on the night of the shooting, no witnesses were able to identify him at the crime scene except the victim, based on observations earlier in the evening.
The State did not call Bauder or Mott as witnesses. Overstreet’s defense counsel attempted to introduce Bauder’s and Mott’s identifications of Walker — not Overstreet — as the Tahoe’s driver during the cross-examination of Detective Reynolds, but these identifications were excluded on the basis of hearsay. Overstreet’s counsel subsequently moved the district court for a continuance, indicating that he intended to call Bauder and Mott as witnesses for the defense but had thus far been unable to locate them. The district court granted a continuance of the trial until the next morning to give defense counsel an opportunity to find the men.
Bauder testified for the defense the following morning. He explained that he “believe[d]” he identified Overstreet at the scene, but he was uncertain of that identification because he was focused primarily on the shooter, not the driver. After Bauder testified, defense counsel recalled Detective Reynolds, who testified that Bauder identified Walker — not Overstreet — as the driver on the night of the incident and that Overstreet had not been present at the time.
During deliberations, the jury submitted several questions for clarification to the district court and also requested the readback of trial testimony. On the morning of the second day of deliberations, the court asked the jury if it would benefit from additional summation from counsel. The jury requested summation on two points: (1) the intent of the shooter and (2) whether Overstreet had to be driving the Tahoe in order to be found guilty of the charges on an aiding and abetting theory. While defense counsel objected to the ground rules for the additional summation, there was no objection by either party to the additional summation, and both counsel agreed to provide additional argument on the requested topics.
Later on their second day of deliberation, the jury notified the court that it had reached a unanimous decision on the aggravated assault charge but was split on the attempted murder charge. With the consent of the parties, the court instructed the jury to continue with deliberations in an effort to reach a verdict. Shortly thereafter, the jury returned guilty verdicts on each of the alternative charges.
Before sentencing, Overstreet filed a pro se motion for a new trial that included several claims of ineffective assistance of counsel, among them an allegation that his defense counsel did not adequately prepare for trial since he did not locate Mott and did not adequately prepare Bauder as a witness, given Bauder s confusion as to his identification of the defendant at the crime scene.
Defense counsel also filed a motion for judgment of acquittal or for a new trial based, among other reasons, on the court’s allowance of additional summation and the jury instruction provided on aiding and abetting.
The court denied both motions. The defendant was sentenced to 195 months in prison for the attempted first-degree murder conviction; the court did not impose a sentence on his aggravated assault conviction since the crimes were charged in the alternative, although this conviction was noted on the journal entry.
Overstreet’s appeal was stayed, and the Court of Appeals remanded his case to the district court for a hearing on his ineffective assistance of counsel claims. After an evidentiary hearing, the district court concluded that he was adequately represented at trial. His convictions and sentence were affirmed, and we granted the defendant’s petition for review.
(1) Aiding and Abetting Instruction
Overstreet argues that the district court’s aiding and abetting instructions misstated the law in that the jury was advised it need not find beyond a reasonable doubt that Overstreet had premeditated the attempted murder. Overstreet also argues that the prosecutor committed reversible misconduct in his discussion of the aiding and abetting instruction during closing argument by claiming that the State need only prove that he was guilty of aggravated assault to show that he was also guilty of premeditated murder. The State claims — and the Court of Appeals agreed — that both the instructions given and the prosecutor’s discussion of those instructions were proper.
Discussion
The State charged Overstreet with aggravated assault and attempted first-degree murder, both based on an aiding and abetting theory. At the close of evidence, the district court provided the following instruction to the jury on aiding and abetting:
“A person who, either before or during its commission, intentionally aids, abets or procures another to commit a crime with the intent to promote or assist in its commission, is criminally responsible for the crime committed regardless of the extent of the person’s participation, if any, in the actual commission of the crime.
“A person who intentionally aids another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.”
As the prosecutor was discussing the jury instructions during his closing argument, he provided the following explanation of the aiding and abetting instruction:
“Now, Instruction Number 7, we told you — I told you that this is an aiding and abetting case, and Instruction Number 7 is the instruction that deals with aiding and abetting. I won’t go over the whole thing, but I do [want to] emphasize a couple points.
“First, we have to show that Mr. Overstreet intentionally aided the shooter. We have to show that he actually did assist the shooter and that it was with the intent to promote or to assist a crime. So, you know, he can’t be doing this accidentally or unintentionally. And, if those three things are present, then the law says, Instruction Number 7 says that he’s responsible for the crime, just like if he did it. It says he’s responsible regardless of the extent of his participation.
“And he’s also responsible, not only for the crime that was intended to be committed but also for any other crime that’s reasonably foreseeable. You’ve all heard the saying, In for a penny, in for a pound, and that’s basically the concept here. You’re in a little bit, you’re in the whole way.”
The prosecutor later explained his “in for a penny, in for a pound” comparison in more detail, stating:
“Now, one choice you have is aggravated assault. And the defendant is guilty of aggravated assault. A deadly weapon was used. Mr. McCall feared getting shot, obviously, common sense. He ducked down.
“He’s also — the defendant is also guilty of aiding and abetting first-degree murder. He’s guilty, even if this defendant only wanted to aid an aggravated assault. If someone in the jury room says, Well, yeah, he was the driver and he probably wanted to do an aggravated assault, doesn’t matter, he’s still guilty of attempted first-degree murder. And that’s a very important point.
“Because attempted murder, I’d submit to you, is reasonably foreseeable when you go to commit an aggravated assault. And this goes back to our concept in for a penny, in for a pound.”
At the end of the prosecutor s first portion of closing argument (before defense counsel gave his argument), the prosecutor concluded:
“[I]f he was the driver of this car, he is an aider and abettor, not only to aggravated assault but also to attempted first-degree murder. He hooked himself to the Kendrick Shears train, and he’s gotta go where that train leads. That train committed attempted first-degree murder. I ask that you find the defendant guilty of that offense.”
Overstreet claims that the combination of the language of the aiding and abetting instruction and the prosecutor’s arguments regarding that instruction relieved the State of its burden of proving premeditation — an essential element of attempted premeditated murder — beyond a reasonable doubt. Overstreet bases his argument on this court’s decision in State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005), where we held that the giving of both PIK Crim. 3d 54.05 and PIK Crim. 3d 54.06 (the two instructions given here) in the context of a premeditated first-degree murder case was error. The Court of Appeals in this case held that Engelhardt did not control and found no error with either the instructions given or the prosecutor’s comments. See Overstreet, slip op. at 7-8, 15-16.
Instructional Error
We first address Overstreet’s claim that the aiding and abetting instruction itself is reversible error because it relieved the State of its burden of proving an essential element of the crime charged. Overstreet did not object to the aiding and abetting instruction provided by the district court. Under K.S.A. 22-3414(3), no party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects, distinctly stating the matter objected to and the grounds for the objection before the jury retires, unless the instruction is clearly erroneous. Instructions are clearly erroneous “only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citation omitted.]” State v. Bell, 280 Kan. 358, 365, 121 P.3d 972 (2005). Reviewing courts must consider the jury instructions as a whole and not isolate any one instruction in reaching a conclusion about the instruction’s propriety. See State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004).
Initially, we note that the two paragraphs of the aiding and abetting instruction provided by the district court track the language in PIK Crim. 3d 54.05 (Responsibility for Crimes of Another) (first paragraph) and PIK Crim. 3d 54.06 (Responsibility for Crimes of Another — Crimes Not Intended) (second paragraph). The language in the instruction given is also almost identical to the statutory description for aiding and abetting contained in K.S.A. 21-3205:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.”
This court has approved each of these instructions individually as correct statements of K.S.A. 21-3205. See State v. Gleason, 277 Kan. 624, 636-38, 88 P.3d 218 (2004) (approving PIK Crim. 3d 54.06); State v. Manard, 267 Kan. 20, 34, 978 P.2d 253 (1999) (approving PIK Crim. 3d 54.05). In Engelhardt, however, we held that it was error to provide both of these instructions when the underlying crime required a specific showing of intent. See 280 Kan. at 131-34.
The defendant in Engelhardt was convicted of aiding and abetting premeditated first-degree murder. Just as in this case, the district court provided both instructions on aiding and abetting: PIK Crim. 3d 54.05 and PIK Crim. 3d 54.06. The defendant argued that by providing PIK Crim. 3d 54.06 (the foreseeability instruction), the district court impermissibly lowered the State’s burden of proof on the element of intent since the instruction stated that the prosecution only had to show that the murder was a foreseeable consequence of another criminal act — not that it was premeditated. 280 Kan. at 132-33. We agreed that the instruction negated the intent element of premeditated murder:
“The specific intent required to be proved for conviction on a premeditated first-degree murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation to murder the victim.” 280 Kan. at 132.
Nevertheless, this court ultimately held in Engelhardt that although it was error for the district court to give the foreseeability instruction contained in PIK Crim. 3d 54.06, the error was harmless in light of the overwhelming evidence against the defendant. See 280 Kan. at 133-34.
Our decision in Engelhardt controls our resolution in this case. As in Engelhardt, Overstreet was charged in this case with a specific-intent crime under an aiding and abetting theory. Therefore, the State was required to prove beyond a reasonable doubt that he “intend[ed] to promote or assist” in the commission of an attempted first-degree premeditated murder. Engelhardt, 280 Kan. at 131; see K.S.A. 21-3205(1). Engelhardt makes it clear that to be successful on this theory, the State was required to prove that the defendant shared in the specific intent of premeditation and thus promoted or assisted in the commission of the specific crime of premeditated first-degree murder.
Despite this premeditation requirement, the district court instructed the jury in this case that “[a] person who intentionally aids another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.” This foreseeability instruction indicated that the jury need not find that Overstreet possessed the specific intent of premeditation if it found that premeditated murder was a reasonably foreseeable consequence of aggravated assault. In other words, giving the aiding and abetting foreseeability instruction negated the State’s burden to prove an essential element of the crime charged: premeditation. This diminished burden is precisely the type of error disapproved in Engelhardt. See 280 Kan. at 132. The district court erred when it provided the foreseeability instruction in this case.
In addition, the foreseeability instruction is inappropriate in a premeditated murder case on the basis of logic. Premeditation does not require that a murder (or attempted murder) be reasonably foreseeable; the only relevant question is whether the defendant thought about the murder before engaging in the intentional homicidal act. See State v. Hoge, 276 Kan. 801, 814-15, 80 P.3d 52 (2003). Conversely, the mere fact that an act is foreseeable does not mean that the defendant has premeditated his or her actions. See Engelhardt, 280 Kan. at 133. In short, the fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.
The Court of Appeals erroneously concluded that the State did not need to prove beyond a reasonable doubt that Overstreet premeditated McCall’s attempted murder, but needed only show that he attempted to assist the shooter in the original assault. Overstreet, slip op. at 7-9.
In reaching its conclusion, the Court of Appeals relied on a portion of this court’s opinion in State v. DePriest, 258 Kan. 596, 907 P.2d 868 (1995), where we explained that “to find the defendant guilty of aiding and abetting first-degree murder, the jury was required to find that a first-degree murder had been committed and that the defendant aided and abetted that murder with the intent to assist in its completion.” 258 Kan. at 603; see Overstreet, slip op. at 8. Contrary to the Court of Appeals’ application, DePriest does not stand for the proposition that “the requisite intent for aiding and abetting liability in a first-degree murder case is the intent to aid and abet the murder with the ‘intent to assist its completion,’ ” rather than premeditation. Overstreet, slip op. at 8 (quoting DePriest, 258 Kan. at 603). DePriest explained that in order to convict a defendant of premeditated murder on an aiding and abetting theory, the jury is required to find (1) “that a first-degree murder had been committed” and (2) “that the defendant aided and abetted that murder.” (Emphasis added.) 258 Kan. at 603. In other words, the jury must find that the defendant intentionally aided and abetted a premeditated first-degree murder. This showing necessarily requires a finding of premeditation on the part of the aider/abettor. See Engelhardt, 280 Kan. at 132-33.
DePriest and Engelhardt are consistent with the numerous other cases decided by this court holding that for a defendant to be convicted of a specific-intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal. See State v. Schriner, 215 Kan. 86, 92, 523 P.2d 703 (1974) (quoting State v. Edwards, 209 Kan. 681, 498 P.2d 48 [1972]) (stating that K.S.A. 21-3205 “ 'makes no change in the of proof of intent necessary to establish criminal responsibility).
Overstreet failed to object to these instructions, and in accord with our standard of review, we must determine whether there is a real possibility that the jury would have rendered a different verdict if the foreseeability instruction had not been given. K.S.A. 22-3414(3); see Bell, 280 Kan. at 365 (citing State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 [2003]).
The Court of Appeals concluded that even if any error may have arisen from the aiding and abetting instructions, the error was harmless in light of the other instructions given — in particular, the instruction on attempted premeditated first-degree murder, which stated:
“The defendant, Jason Overstreet, is charged in count one with the crime of attempt to commit the crime of first degree murder. Mr. Overstreet pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That Mr. Overstreet aided or abetted someone who performed an act toward the commission of the crime of first degree murder;
2. That he did so with the intent to aid or abet someone to commit the crime of first degree murder;
3. That he failed to complete the commission of the crime of first degree murder; and
4. That this act occurred on or about the 7th day of December, 2004, in Sedgwick County, Kansas.
“The elements of first degree murder would be:
1. That someone intentionally killed a human being;
2. That such killing was done with premeditation; and
3. That this act occurred on or about the 7th day of December, 2004, in
Sedgwick County, Kansas.
“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional'act of taking another’s life.”
Standing alone, this instruction indicates that to render a verdict of guilty on the attempted premeditated first-degree murder charge, the jury was required to find that the defendant acted with premeditation. Yet this instruction does not overcome the confusion that was injected into this trial by the district court’s instruction on foreseeability and the prosecutor’s subsequent argument. The instructions as a whole indicate two conflicting legal theories: (1) The jury may convict Overstreet of the attempted premeditated murder if it concludes that he participated in the aggravated assault and that the crime of attempted murder was foreseeable; (2) the jury may convict Overstreet of attempted first-degree murder only if it were to conclude that the crime was premeditated.
Furthermore, the confusion between these conflicting instructions was exacerbated by the prosecutor’s comments during closing argument. The prosecutor argued that “the defendant is . . . guilty of aiding and abetting first-degree murder . . . even if this defendant only wanted to aid an aggravated assault.” (Emphasis added.) The prosecutor additionally stated that “attempted murder ... is reasonably foreseeable when you go to commit an aggravated assault.” Similarly, the prosecutor explained that because Overstreet “hooked himself to the Kendrick Shears [the shooter] train” by aiding or abetting the aggravated assault, “he’s gotta go where that train leads” — implying that it was only Shears’ premeditation that mattered. According to the prosecutor, the fact that the jury did not have to find that Overstreet himself had premeditated the crime was “a very important point.”
In light of our decision in Engelhardt, we conclude that giving the aiding and abetting instruction in this case — which included language from both K.S.A. 21-3205(1) and (2) — was clearly erroneous. There is a real possibility that the jury, following this instruction and the prosecutor’s subsequent comments during clos ing argument, convicted Overstreet of the attempted premeditated murder not because the defendant aided or abetted in the attempted premeditated murder but because the murder was a reasonably foreseeable consequence of the aggravated assault. We therefore reverse and remand for a new trial.
Prosecutorial Misconduct During Closing Argument
Overstreet argues that the prosecutor’s comments during closing argument amounted to prosecutorial misconduct. We note, however, that the comments of the prosecutor tracked the trial court’s instructions on aiding and abetting. While we have held that those instructions were erroneous, we do not fault the prosecution for following the trial court’s instructions. We also note that the argument in this case occurred approximately 1 month before we filed our decision in Engelhardt. See 280 Kan. at 131-34. We cannot say that the prosecutor engaged in prosecutorial misconduct in this case.
(2) The Court’s Conduct During Jury Deliberations
Overstreet claims that the district court erred by allowing additional summation to the juiy on the morning of the second day of deliberations. He also claims that a supplemental instruction provided to the jury midway through that second day had the improper effect of forcing the jury to reach a verdict on fhe attempted first-degree murder charge.
This case involved an inordinate amount of contact between the court and the jury after the case had been submitted for deliberation. The jury began deliberations at 10:35 a.m. on August 3. Between that time and the announcement of the jury’s verdict, the following events took place:
• On August 3 at 11:15 a.m., the jury requested a readback of McCall’s testimony identifying Overstreet as the driver of the Tahoe while McCall was waiting in fine at the drive-thru. The jury also requested McCall’s police statement and a photograph of James Walker. The court discussed these questions with the attorneys. Neither the police statement nor the photograph had been admitted into evidence, so the court in formed the jury they could not request those materials and had to make its decision based on the evidence admitted. The court then requested that the court reporter read back the requested portion of McCall’s testimony.
• On August 3 at 1:50 p.m., the juiy asked for a readback of Bauder’s testimony regarding whether he saw Overstreet at the scene of the crime. The jury also requested a readback of McCall’s testimony of “who he saw driving at the apartment complex (scene), if it was mentioned.” With the consent of both counsel, the court read back the requested portion of Bauder’s testimony and informed the jury that McCall had not testified that he had seen Overstreet at the apartment complex or scene of the shooting.
• On August 3 at 4:35 p.m., the jury asked for an additional reading of Bauder’s testimony regarding the identification of Overstreet “to clarify . . . whether or not Jason Overstreet was seen at the scene or [police] substation” the night of the crime. Both parties agreed to have the testimony read back a second time.
• On the morning of the second day of deliberations (August 4), the court suggested that an assistant should ask the jury if additional summation would be helpful to its deliberations. The court explained that “[c]ounsel were in agreement that they [the jurors ought to] be specific about what they wanted.” The jury requested additional summation on the “intent of the shooter” and “whether or not the defendant has to be driving to be found guilty of the charges.” Defense counsel objected to closing arguments on the second issue since those arguments had not been presented earlier. Defense counsel also objected to the court allowing the prosecutor to split his time. The court overruled both objections, and the parties argued both issues to the jury.
• On August 4 at 12:55 p.m., the jury sent a communication to the court indicating it had “reached a unanimous decision on count two [aggravated assault] and [were] split on count one [attempted premeditated first-degree murder].” With the consent of both counsel, the court provided the jury with a supplemental instruction encouraging further deliberation.
• On August 4 at 2:50 p.m., the jury returned a verdict of guilty on both charges.
Additional Summation
Overstreet first argues that the court engaged in impermissible ex parte communications with the jury when he had his assistant ask the jurors whether additional summation from counsel would help clarify some of their questions. No objection was lodged by the defendant to the grant by the trial court to each party of additional summation. Rather, the defendant assented to the court’s suggestion that additional argument be provided. Overstreet’s defense counsel did object to (1) the second point requested (whether the defendant had to be the driver) because it was not argued before and (2) splitting the State’s argument. The defendant does not renew these specific arguments on appeal, nor does he provide any reason why the grant of additional summation in this case prejudiced his fundamental rights. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). In the absence of an objection to the grant of additional summation, we find that this issue has not been preserved for review. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).
Supplemental Instruction
Shortly after noon on the second day of deliberations, tire jurors indicated to the court that they had reached a unanimous decision on the aggravated assault charge but were split on the attempted murder charge. With the consent of both parties, the court provided a supplemental instruction suggesting that the jury identify points of similarity and difference so that it might reach a conclusion if possible. About an hour after the court gave the supplemental instruction, the jury returned a verdict of guilty on both charges. Overstreet characterizes the supplemental instruction as an Allen-type instruction and claims that it had the impermissible effect of forcing the jury to reach a verdict. See Allen v. United States, 164 U.S. 492, 41 L. Ed 528, 17 S. Ct. 154 (1896).
Overstreet did not object to the supplemental instruction — either in timing or in substance. Thus, we review that instruction for clear error. K.S.A. 22-3414(3). An instruction is clearly erroneous — and thus a basis for reversal — “only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Struzik, 269 Kan. 95, Syl. ¶ 5, 5 P.3d 502 (2000).
Discussion
The district court provided the following supplemental instruction with the consent of counsel:
“This Instruction is offered to help you make a decision, not to force you to reach a verdict or to suggest what your verdict should be.
“It may be helpful for you to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to areas of disagreement.
“If you still have disagreement, I invite you to identify for me any issues or questions about the evidence, the final instructions of law, or the deliberation process with which you would like assistance from me or counsel. If you choose this option, please list, in writing, the issues where further assistance might help bring about a verdict.
“To repeat, I do not wish or intend to force a verdict. I am merely trying to answer your apparent need for help. If it might help you reach a verdict, it would be wise to give it a try.”
The language in this supplemental instruction is different from the language in PIK Crim. 3d 68.12, which is similar in scope. That instruction provides:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge(s) to a different jury at a later time. Another trial would be a burden on both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” PIK Crim. 3d 68.12.
Although this court has previously approved the use of PIK Crim. 3d 68.12, it has indicated that it is much better to give such an instruction before the case is submitted to the jury for deliberations. See State v. Whitaker, 255 Kan. 118, 126-28, 872 P.2d 278 (1994) (citing with approval PIK Crim. 3d 68.12); State v. Oswald, 197 Kan. 251, 261, 417 P.2d 261 (1966) (“The practice of lecturing a jury in a criminal case after it has reported a failure to agree is not to be commended and . . . might well be held coercive and erroneous as invading the province of the jury.”).
The timing of the supplemental instruction presents a serious problem. The jury had been deliberating for some time and announced that it had reached a verdict on the aggravated assault charge but was split on the attempted premeditated first-degree murder charge. At this point, the district court provided the supplemental instruction, advising the jury that it would be wise to try to reach a verdict. In response, the jury returned a verdict on both charges less than an hour later. Considering this chronology, we cannot confidently state that the instruction did not have the effect of forcing a verdict in this case.
It is true that there are some notable differences between this instruction and PIK Crim. 3d 68.12, namely: (1) that the supplemental instruction does not contain the language stating that if this jury does not resolve the case, another jury may be called on to do so, and an additional trial would be a burden to both sides; (2) that the supplemental instruction does not have any mention of the jurors potentially surrendering viewpoints, but instead focuses on resolving areas of disagreement; and (3) the supplemental instruction states that “it would be wise to give [the instruction s suggestions] a try” if those suggestions “might help you [the jury] reach a verdict,” whereas the PIK instruction states that “[i]f at all possible, [the jury] should resolve any differences and come to a common conclusion.” PIK Crim. 3d 68.12.
We conclude, however, that these modifications to the language of the PIK instruction do not mitigate the timing of the supplemental instruction. But for this instruction, there is a real possibility that the jury may have returned a different verdict on the attempted premeditated murder charge. Accordingly, we conclude that the instruction given was clearly erroneous and requires reversal.
(3) Ineffective Assistance of Counsel
Overstreet claims that his defense counsel provided constitutionally defective representation when counsel failed to locate one potentially exculpatory witness and failed to adequately prepare another potentially exculpatory witness for trial. Because one of Overstreet’s principal defenses was that he was not present at the time the shooting took place, Overstreet argues that the failure of his counsel to subpoena and prepare exonerating witnesses was so prejudicial as to deprive him of a fair trial.
The Sixth Amendment to the United States Constitution guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This court has explained that the right to counsel guaranteed by this provision is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).
To support a claim of ineffective assistance of counsel, a defendant must demonstrate (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004). Thus, the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations omitted.]” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
Bledsoe explained the two steps in the ineffective assistance of counsel analysis in detail, stating:
“The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to efiminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.]
“Once a defendant has established counsel’s deficient performance, the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]” 283 Kan. at 90-91.
Discussion
Overstreet originally raised his claim of ineffective assistance of counsel in a posttrial, pro se motion for a new trial. The defendant listed numerous bases in that motion for his claim that counsel was constitutionally defective, including (1) that counsel failed to subpoena Bauder and Mott — the two individuals who had witnessed the shooting from another truck in the apartment complex parking lot; (2) that counsel faded to prepare Bauder for trial when he was located, evidenced by Bauder’s confusion at trial as to whom he had identified as the driver on the night of the incident; (3) that the attorney did not show photographs of Walker, Agnew, and Shears — the other men allegedly involved — to the jury or to Bauder; and (4) that counsel did not object to McCall’s statement that the driver of the Tahoe looked like the rapper Chingy or offer a picture of the rapper into evidence for the jury’s comparison.
In his petition for review, Overstreet only renews his arguments regarding his counsel’s failure to locate Mott and failure to adequately prepare Bauder as a witness.
The district court initially denied Overstreet’s motion summarily at the sentencing hearing. The Court of Appeals subsequently remanded the case for a hearing on the defendant’s claims of ineffective assistance of counsel, finding the record inadequate to assess the court’s decision. On remand, the court held an evidentiary hearing at which defense counsel — Bradley Sylvester — testified. At the close of Sylvester s testimony, the district court found Over-street’s claims were without merit and again denied his motion.
During opening statements at trial, defense counsel indicated that Joshua Bauder indicated when questioned on the night of the shooting that James Walker was the shooter and that Tyler Mott had identified Kendrick Shears as the shooter and Walker as the driver.
Detective Reynolds later testified that three men were apprehended the night of the shooting: Shears, Walker, and Ishmel Agnew. The detective also testified that Bauder and Mott had witnessed the shooting from a nearby truck. When defense counsel asked whether Bauder or Mott had identified anyone as the perpetrators, the court sustained the State’s objection based on hearsay. Defense counsel later asked whether a live identification had been made on the night of the incident, and the court again sustained an objection on hearsay grounds.
After lunch on the first day of trial, defense counsel indicated to the court that he was “actually trying to find Joshua Bauder and Mr. Mott” but was having difficulty because “they’ve moved about.” The court granted a continuance until the next day to allow defense counsel time to find the witnesses.
On the following morning, Bauder testified that he saw the shooting while sitting with Mott in Bauder’s truck. Bauder explained that he viewed three people at the police station from about 20 feet away when identifying the shooter and the driver. He also testified that Mott gave an identification separate from Bauder.
When defense counsel asked Bauder if he recalled seeing Overstreet on the night of the shooting or in photographs, the following exchange took place:
“A. I saw him that night when they identified us at the cars.
“Q. You saw him that night when they identified — I’m sorry, say that again.
“A. When they — when the cops took us to identify them, I believe I saw him.
“Q. Okay. Is he the one you identified as something, or do you know?
“A. It’s been so long.”
Defense counsel immediately recalled Detective Reynolds as a witness, who testified that Overstreet was not present at Bauder’s lineup and that Bauder had identified Shears as the shooter and Walker as the driver.
Defense counsel did not call any other witnesses on Overstreet’s behalf.
During the hearing on remand, defense counsel testified that in preparing for trial, he reviewed police reports that indicated that Bauder and Mott were at the scene and were the only two witnesses of the shooting (other than the victim, McCall). The reports indicated that three men were caught running through a Wal-Mart. Police brought Bauder and Mott to the police substation to do a lineup, and both witnesses identified Walker as the driver and Shears as the shooter.
Defense counsel testified that he had not had any contact either in person or by phone with Bauder before the start of trial, and he never had any contact with Mott at all. Defense counsel explained that he did not subpoena Bauder or Mott to appear at trial because he thought the State would call them as witnesses.
According to defense counsel’s testimony at the remand hearing, an investigator brought Bauder to the courtroom on the second day of trial (at defense counsel’s request), and counsel met with Bauder in the courtroom library before Bauder testified. Defense counsel did not show Bauder mugshots of Walker or Shears — the people he had previously identified as being involved in the shooting — and did not give the jury a photograph of these men either. After Bauder testified, defense counsel did not request a continuance or send anyone to find Mott, even though Bauder apparently knew where he could be located.
When asked whether Bauder’s misstatement at trial that he saw Overstreet the night of the shooting was prejudicial to Overstreet’s case, defense counsel responded that it was “[v]ery much so.”
The court ruled that counsel’s performance was not deficient, and even if it were, the jury would have convicted Overstreet of the charges based on the evidence presented at trial. The district court found, after hstening to Sylvester’s testimony, that as defense counsel he did attempt to locate both Bauder and Mott prior to trial by hiring an investigator. The court further found that defense counsel had provided evidence through Detective Reynolds’ tes timony that Bauder and Mott did not identify Overstreet as the driver on the night of the shooting. Finally, the court found that counsel’s performance had not prejudiced the defendant given the evidence against him: McCall’s identification of Overstreet as the driver; Overstreet’s fingeiprints on the outside of the driver’s side door; Overstreet’s cell phone in the car; and testimony that the Tahoe had been loaned to Overstreet earlier in the evening on the day of the shooting.
The Court of Appeals held that most of these factual findings were supported by the record, but that the district court had erred in finding that Mott’s identification of Walker was introduced through other testimony. Instead, the appellate court noted that this evidence had been excluded on the basis of the State’s hearsay objections. Overstreet, slip op. at 32. Reviewing the record, the Court of Appeals noted that because Overstreet’s theory of defense centered on proving that he was not the driver, defense counsel’s “negligible efforts” in locating Mott “[tend] to render Sylvester’s assistance deficient.” Slip op. at 33.
Despite its finding that Overstreet had met the first prong of ineffective assistance of counsel, however, the Court of Appeals held that counsel’s deficient representation did not require reversal given the weight of the evidence presented against the defendant. Slip op. at 33.
Standard of Review
When an evidentiary hearing has been conducted in the district court on claims of ineffective assistance of counsel, this court determines whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. The court’s legal conclusions are reviewed de novo. See Pabst v. State, 287 Kan. 1, 16, 192 P.3d 630 (2008); Bledsoe, 283 Kan. at 91.
Analysis
A review of the record illustrates that the Court of Appeals was correct when it concluded that counsel’s performance in this case fell below an objective standard of reasonableness. The crux of Overstreet’s defense at trial was that he was not the driver during the shooting. Overstreet’s defense counsel had reviewed the police reports and had discovered that both Bauder and Mott identified Walker — not Overstreet — as the driver in this case. Both Bauder and Mott were listed as potential witnesses the State might call in the initial complaint and information.
Defense counsel testified at the hearing on remand that he had hired a private investigator to find and question Bauder and Mott; this investigator was apparently able to contact Bauder but was unable to contact Mott. Because counsel “figured [the State] would call [Bauder and Mott] as witnesses,” he “didn’t need to contact them.” Only when the State did not call either man as a witness and the court granted the State’s hearsay objections did defense counsel recognize that he needed to subpoena Bauder and Mott. The only personal contact defense counsel ever had with Bauder before the witness testified was in the courtroom library on the day of Bauder’s testimony — more than 8 months after the incident occurred. Bauder then incorrectly stated that he had identified Overstreet on the night of the shooting.
If the primary theory of the defense was that Overstreet was not the driver, then it was objectively unreasonable to not interview the two people who had made positive identifications of another person as the driver on the night of the shooting. It was unreasonable not to subpoena the two men as witnesses prior to trial. It was unreasonable to fail to adequately prepare the one man who eventually did testify. These decisions cannot be strategically explained and fall below the constitutionally-guaranteed standards of representation in a criminal case.
Moreover, contrary to the Court of Appeals’ conclusion, we conclude that defense counsel’s deficient performance prejudiced the defendant’s right to a fair trial. On two separate occasions after the case was submitted to the jury for deliberations, the jury asked for a readback of Bauder’s testimony regarding whether he saw Overstreet at the scene of the shooting. The jury also asked for a readback of McCall’s testimony regarding his identification of Overstreet as the driver. When the jury requested additional summation on the second day of deliberations, one of the questions of clarification requested was whether Overstreet had to be the driver of the Tahoe to be convicted of aiding and abetting the two crimes.
In light of the record, there is a real possibility that but for counsel’s deficient performance in this case, the jury would have returned a different verdict. In order to protect Overstreet’s Sixth Amendment right to counsel, we reach the merits of this issue, reverse his convictions, and remand the case for a new trial.
Overstreet raised a number of other arguments on appeal. We have addressed the errors leading to reversal of the defendant’s convictions. In tight of our decision, we need not address Over-street’s other allegations of error. The decision of the Court of Appeals affirming the district court is reversed, the decision of the district court is reversed, and the case is remanded for a new trial.
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The opinion of the court was delivered by
Rosen, J.:
Gabriel Martinez appeals from his conviction of one count of premeditated first-degree murder and one count of criminal discharge of a firearm at an occupied vehicle. Jurisdiction fies with this court under K.S.A. 22-3601(b)(1).
On the night of December 23, 2006, brothers Jose David Contreras (David) and Nasser Contreras went to a Christmas Eve dance at the Rainbow Center in Kansas City, Kansas. They were there with various other family members and friends. At the Rainbow Center, Anthony Contreras pointed out a group of men with whom he had been experiencing trouble, including Martinez and Manny Lopez, who had shot at him on a previous occasion. Anthony turned to Lopez and blew him a kiss, whereupon Anthony’s wife told Anthony that she wanted to leave.
Anthony; his wife, Sandra Contreras; David; and Nasser left the Rainbow Center and went to their sport utility vehicle (SUV). They were joined by their cousin, Andrew Torres, Jr. A group of three or four men, including Lopez and Martinez, followed them out to the parking lot. As the Contreras family was leaving, Sandra, who was driving their SUV, saw Martinez go to the rear of a car and retrieve something from the trunk. Martinez, Lopez, and one or two other men then began to follow the Contreras family at a distance of several car lengths.
The Contreras family group drove about 20 minutes to a McDonalds restaurant. They pulled into the drive-through lane and stopped, and they then began to hear gunshots from the street behind them. Sandra saw, out of the window, the car that had been following them. The windows of the SUV were shattered, and bub lets struck David in the back of the head and Nasser in the back of his lower neck. David died as a result of the wound. Nasser eventually recovered.
Police located Lopez about 4 hours after the shooting. Using a photographic lineup, Lopez eventually identified Martinez as the shooter. About 10 hours later, police located Martinez. He waived his Miranda rights and gave an oral statement. In his statement, Martinez explained that he was afraid that the Contreras family intended to rob him. He and his group were driving to a taco restaurant close by the McDonalds where the shooting occurred. They turned when they saw the SUV with Anthony in it, and Martinez used a gun that he called a “9” to fire at “him.” Martinez identified himself as the only person who fired a weapon. After the shooting, the group drove to a bridge and threw the gun into a river.
Bullets and bullet fragments retrieved from the SUV and David’s head were consistent with being fired from a .38-caliber-family firearm. This family would include a 9 mm caliber gun. Police found a fired 9 mm shell casing on the bridge near where Martinez said he had thrown the gun into the river.
Martinez was charged with one count of premeditated first-degree murder or, in the alternative, felony murder, and one count of criminal discharge of a firearm at an occupied vehicle. A jury found Martinez guilty of first-degree murder and of the count of criminal discharge of a firearm. The trial court sentenced Martinez to a hard 50 fife sentence for premeditated murder and a concurrent term of 59 months’ imprisonment for criminal discharge of a firearm at an occupied vehicle. Additional facts will be provided as necessary to the analysis of the issues presented. Martinez filed a timely notice of appeal.
Martinez raises two issues that stem from juror contact with the trial judge during jury deliberations. Two jurors approached the trial court to voice their concerns about the competence of a third juror. The court allowed the third juror to continue to participate in deliberations and judgment. First, Martinez contends his right to a unanimous verdict was prejudicially compromised by the presence of a juror of limited competence.
A trial court’s decision whether to substitute one juror with an alternate is reviewed for abuse of discretion. State v. Jones, 283 Kan. 186, 203, 151 P.3d 22 (2007); see K.S.A. 22-3412(c). The defendant carries the burden of demonstrating substantial prejudice before an appellate court will find that the trial court abused its discretion. 283 Kan. at 203.
The jury began its deliberation on September 12, 2007. After the evening recess, one juror approached the trial judge in an ex parte meeting and told him she was concerned about the behavior of another juror. The trial judge had the encounter transcribed. The juror expressed the following:
“I’m not an expert in my field. I work in the medical field. I’m a nurse. This juror displays behavioral mannerisms of a person that would be like — have autism or be autistic. And several of the things that he has stated during deliberations, not just myself, but other jurors have felt is veiy — well, inappropriate. You know, he like gazes off into space like he’s not even there. When he does contribute to the conversation, he has to be asked to. And then when he does, it’s almost like a child-like form in which he talks. I can’t even — not that I would anyway because it’s rude. I can’t imitate the way he speaks.
“But it’s very concerning to me as another juror that’s on this jury if he’s not mentally competent to make a decision regarding this case. I mean, there is a young man’s life that could possibly be in — so I’m very concerned.”
The trial judge instructed the juror to continue with deliberations and to discuss the matter with the presiding juror “if the jury feels that there’s a problem.”
The next morning, the trial judge called the parties together prior to the commencement of deliberations. In the presence of Martinez and counsel, both the concerned juror and the presiding juror addressed the court about their concerns. The presiding juror informed the court:
“There is a concern with the competence of him, is he mentally stable enough to make a decision based on evidence versus making a decision on his own opinions, his own morals, his own convictions.
‘When we first questioned him about his opinion about the case, he did make some valid statements as far as, you know, age statements. If he’s old enough to do driving, if he’s old enough to be responsible enough to keep a job, things like that, he’s old enough to make the decision whether or not to take a man’s life. And I believe that was a valid statement. But later on in our discussion he was making statements based on his opinion, well, if his parents knew he was in a gang and gangs are wrong, I’m going to convict him because he’s in a gang.
“Personally, I think that’s not according to evidence, that’s just personal opinion. He’s not really been focused on the evidence. He’s been up and down, kind of looking out the window, in and out of the bathroom. I don’t think he’s just mentally pertaining himself to the evidence and to this case.
“. . . We talked upstairs in the jury lounge amongst ourselves and we — some of the people don’t really feel comfortable making a solid judgment with him being a part of that based on his decision.”
The State suggested replacement of the juror in question with an alternate juror, but Martinez’ counsel objected, moving instead for a new trial. The trial judge stated his concern that “this juror is not going to decide this case based upon the evidence and law as he has been charged to do,” but allowed the jury to continue deliberating with its original members. Later that day the jury returned guilty verdicts; the juiy was polled and the decision was unanimous.
Martinez argues that the presence of an incompetent juror deprived him of his right to a unanimous jury verdict. He contends that State v. Hayes, 270 Kan. 535, 537, 17 P.3d 317 (2001), and State v. Miller, 11 Kan. App. 2d 410, 412, 722 P.2d 1131, rev. denied 240 Kan. 805 (1986), control the outcome in the present case. In Hayes, a juror was unable to hear trial testimony, and this court found the defendant’s constitutional right to an impartial jury and to due process had been violated. 270 Kan. at 540. In Miller, a juror was unable to hear testimony and argument, and the Court of Appeals found it to be an abuse of discretion not to declare a mistrial. 11 Kan. App. 2d at 412-13.
In this case, two jurors gave their opinions that the third juror was not focused and was making child-like or inappropriate comments. It was not established, however, that the juror in question was actually incompetent or lacked the capacity to make an informed judgment. It was not established that the third juror was disregarding the evidence; in fact, the statements of the complaining jurors suggested that the juror in question had heard and understood the evidence. It was also not established that the third juror had made up his mind about guilt prior to hearing all the evidence. The complaints went to the third juror’s thought processes, not to his competence to render an informed verdict. See State v. Kirkpatrick, 286 Kan. 329, 355, 184 P.3d 247 (2008) (where juror not shown to have prejudged case and not shown to have improperly influenced other jurors, no abuse of discretion in denying motion to recall jury).
Both our statutes and case law limit inquiry into the mental processes by which a juror reaches a verdict.
K.S.A. 60-441 provides:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
A verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views, the factors used in determining those conclusions, or what influenced those views or mental processes in reaching the juror’s conclusions. See State v. Cook, 281 Kan. 961, 973, 976-78, 135 P.3d 1147 (2006); Saucedo v. Winger, 252 Kan. 718, 728-29, 850 P.2d 908 (1993); State v. Johnson, 40 Kan. App. 2d 1059, 1065-67, 198 P.3d 769 (2008).
Martinez essentially asks this court to require the trial court to inquire into the mental processes of one of the jurors. Such an inquiry is contrary to Kansas law. There is nothing in the record that establishes the existence of a mental impairment of a juror that deprived Martinez of his right to a unanimous verdict. The trial court did not abuse its discretion in permitting the jury to continue to deliberate notwithstanding the voiced concerns of two jurors.
Next, Martinez contends that the initial conversation between the first juror and the trial judge violated his statutory and constitutional right to be present at every critical stage of his trial. A claim that a defendant was deprived of his statutory and constitutional right to be present during a portion of his trial raises legal questions that are subject to unlimited review on appeal. State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).
K.S.A. 22-3405(1) provides in relevant part: “The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.”
We have interpreted K.S.A. 22-3405(1) to mean that “a felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant’s presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.” Engelhardt, 280 Kan. 113, Syl. ¶ 2.
This court has held that ex parte communications between a trial judge and a juror violate a criminal defendant’s constitutional right to be present at all critical stages of the trial. That constitutional right is grounded in the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. McGinnes, 266 Kan. 121, Syl. ¶ 1, 967 P.2d 763 (1998).
This right to be present at all critical stages of the trial is subject, however, to harmless error analysis. Before an error of constitutional magnitude may be declared harmless, the appellate court must be able to decide beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. 266 Kan. 121, Syl. ¶ 3.
Several factors are significant in determining whether an ex parte communication between a trial judge and a juror may be declared harmless beyond a reasonable doubt: (1) the overall strength of the prosecution’s case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or involved an innocuous and insignificant matter; and (4) the ability of the posttrial remedy to mitigate the constitutional error. 266 Kan. 121, Syl. ¶ 4.
The trial court erred in speaking with the first juror when she voiced concerns about a fellow juror without the presence of counsel and the defendant. Applying the McGinnes factors, the error was harmless. The overall strength of the prosecution’s case was great. The defendant was seen in a car in close proximity to the shooting; he provided a confession in which he took sole responsibility for the shooting; and physical evidence corroborated certain aspects of his confession. The ex parte communication did not involve a critical aspect of the trial. The first juror did not receive instruction from the court except that she was to continue deliberating. It was the juror’s statement to the judge that was at issue, and the judge informed counsel of that statement following his discussion with the juror. Finally, the trial judge mitigated the harm created by conducting a hearing with counsel and Martinez present before the jury resumed any deliberations following the ex parte contact.
It is unclear what ultimately would have been different had counsel and Martinez been present at the first juror’s meeting with the judge. The meeting was transcribed, and counsel and Martinez were able to review the transcript. The essence of the discussion was repeated shortly thereafter with the judge and a second juror— the presiding juror — with counsel and the defendant present, and the defense lodged its objection to replacing the third juror and moved for a mistrial at that time. The only difference was one of timing; the defendant might have been able to move for a mistrial earlier if he had been present at the first meeting between the juror and the court. Any error as a result of the trial court’s ex parte juror contact was harmless.
Martinez next contends that the hard-50 sentence imposed should be vacated because it is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Martinez claims that Apprendi requires a jury to make a finding as to the existence of aggravating factors when considering imposition of a hard-50 sentence. However, as Martinez notes, this issue has been disposed of adversely to him in State v. Reed, 282 Kan. 272, 282, 144 P.3d 677 (2006), and he does not present any grounds for reconsidering Reed.
For his final two issues, Martinez raises claims regarding the instructions submitted to the juiy. First, Martinez contends that Jury Instruction No. 7, relating to proving intent, improperly shifted the burden of proof to him and the instruction was erroneous under the facts of the case.
An appellate court reviewing a district court’s giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. See K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Jury Instruction No. 7 reads in its entirety:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
Martinez did not object to the instruction at trial.
On appeal he contends the instruction allows the jury to disregard the State’s burden of proving intent. This court has rejected this argument. See State v. Stone, 253 Kan. 105, 107, 853 P.2d 662 (1993) (instruction creates permissible inference rather than improper rebuttable presumption; therefore does not violate due process rights).
The absence of a timely objection renders it unnecessary to reexamine Stone. The evidence relating to intent was overwhelming, including Martinez’ confession in which he stated that he was attempting to fire on individuals in the SUV. The instruction specifically informed the jury that it was never to shift the burden of proof to the defendant, and another instruction informed the jury that the State was required to prove all its claims. The instruction was not clearly erroneous.
The second claimed instructional error and the final issue raised by Martinez is that the trial court should have included reckless second-degree murder as a lesser included offense. The trial court instructed the jury on premeditated first-degree murder, felony murder, and a lesser included crime of intentional second-degree murder. Martinez did not object to the instructions.
When the defendant fails to request a lesser included offense instruction, the failure to give the instruction is clearly erroneous “only if the appellate court reaches a firm conviction that, had the instruction been given, there was a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006).
The duty to instruct on a lesser included offense arises only when evidence supports the lesser crime. The evidence of the lesser crime does not have to be strong or extensive as long as the jury might reasonably infer the lesser crime from that evidence. The court must give such an instruction even if the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008).
Reckless second-degree murder is defined as “the killing of a human being committed: . . . (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-3402(b). Reckless second-degree murder is a lesser included offense of premeditated first-degree murder. State v. Pierce, 260 Kan. 859, 865, 927 P.2d 929 (1996).
The jury found Martinez guilty of premeditated murder, rejecting felony murder and the lesser included offense of intentional second-degree murder.
In Pierce, this court rejected a requirement of instructing on reckless second-degree murder when the defendant suggested he did not intend to kill the victim but only to defend himself by shooting the victim in the leg. 260 Kan. at 867. In State v. Bailey, 263 Kan. 685, 691, 952 P.2d 1289 (1998), this court stated that the “clear message” of Pierce was that “a defendant’s actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to kill the victim.”
This “clear message” applies in the present situation. Martinez pointed a gun at someone in the SUV and fired numerous rounds. It is logical to conclude that Martinez’ actions were intentional, not merely reckless.
Martinez argues that he was acting in self-defense because he thought that the people in the SUV intended to rob him. It takes a staggering leap of logic to conclude that one would act in self-defense by following a car full of adults and children — who had manifested no immediate sign of intending or attempting to rob anyone and who had left the place where Martinez was partying with his friends — and intentionally drive to their proximity for the express purpose of opening fire on the SUV. The failure to give the reckless second-degree murder instruction was not clearly erroneous.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
Nicholas Bennett was convicted of possession of methamphetamine and placed on probation. He appealed from one of the conditions of his probation, which required him to submit to random, suspicionless searches by community corrections or law enforcement officers. The Court of Appeals held that this condition was unconstitutional and unenforceable. State v. Bennett, 39 Kan. App. 2d 890, 185 P.3d 320 (2008). We agree and affirm the Court of Appeals’ reversal of the district court’s finding that the probation condition was constitutional.
Facts
Nicholas Bennett pleaded guilty to possession of methamphetamine in October 2006. The State recommended that Bennett be placed on probation. As a condition of that probation, the State proposed that Bennett submit to random searches without probable cause or further court order. Before sentencing, Bennett filed a written objection to this proposed condition, arguing that United States Supreme Court precedent demands that such searches be supported, at a minimum, by reasonable suspicion.
The district court sentenced Bennett to 13 months in prison, suspended the sentence, and imposed an 18-month term of pro bation with mandatoiy drug treatment. The following exchange took place when the court considered the defendant’s previous objection to the State’s proposed probationary conditions:
“[DEFENSE COUNSEL:] So, my argument, Your Honor, is that the line, as it’s now drawn, is that the probation officer or . . . law enforcement officers would have to have ... at least reasonable suspicion or reasonable grounds to conduct a full-scale search ... of a probationer’s residence. . . .
“UNIDENTIFIED SPEAKER: I would just clear some things up, maybe. ... I’ll read what’s on a condition. Um, it just says that he shall allow a search . . . without warrant of the residence, physical person, or any property under your control upon request of any community corrections officer. This search may be conducted with the assistance of any law enforcement officer.
“THE COURT: And that’s what it is. ... I don’t think there’s anything in there that talks about reasonable grounds.
Ms. Taylor [the probation officer], is it your understanding] that you have that right to search that at anytime [sic]?
“MS. TAYLOR: Yes, it’s a standard condition of probation.
“THE COURT: [T]hat’s the Court order; that’s always been the Court’s order. When . . . you’re on probation, you lose certain rights. One of the rights you lose, they — they let you come in the home. One of the . . . probation orders is that they allow you to come in the home.
Now, normally, you’re not allowed to come in the home, because a person has a Fourth Amendment right. But in probation, if you extrapolate it out, they have the right to come in the home ... to visit the defendant and to look around and see what’s there. They have a right to come in the car and look in the car and look around. If the defendant is on probation, they lose those certain rights. So, conduct yourself accordingly.”
The sentencing journal entry summarized the court’s decision by including the following condition of probation: “Defendant is to submit to random searches deemed necessary that Community Corrections or Law Enforcement may conduct without probable cause or need for further Court order.”
Bennett appealed, claiming that this condition of his probation violated his Fourth Amendment right to be free from unreasonable searches of his person and property. The Court of Appeals agreed in a published opinion authored by Chief Judge Gary Rulon, concluding that searches of probationers in Kansas must be supported by reasonable suspicion. Bennett, 39 Kan. App. 2d 890. Because the district court’s order subjected the defendant in this case “to nonconsensual, suspicionless searches by community corrections or law enforcement officers,” the court found the probation condition in question to be “unconstitutional and unenforceable.” 39 Kan. App. 2d at 896.
The State petitioned this court for review, arguing that the Court of Appeals’ decision would thwart efforts by law enforcement officers to rehabilitate probationers since those officers would be required to have reasonable suspicion to search. The State also claimed that the United States Supreme Court’s decision in Samson v. California, 547 U.S. 843, 165 L. Ed. 2d 250, 126 S. Ct. 2193 (2006), which upheld a California law stating that parolees could be searched without reasonable suspicion, should be interpreted to imply that probationers could be subjected to similar suspicion-less searches. This court granted the State’s petition.
On November 14, 2008, while the case was pending before this court, Bennett was discharged from the Kansas Department of Corrections and is no longer under state custody. Bennett’s counsel subsequently filed a notice of mootness, claiming that because Bennett has completed his probation, the issues raised in his appeal have been rendered moot.
(1). Should the case be dismissed as moot since Bennett IS NO LONGER ON PROBATION?
Before considering the merits of Bennett’s appeal, we must first consider whether the case was rendered moot when the defendant was discharged from probation in November 2008. As this court explained in Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996):
“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.”
At the same time, we have recognized an exception to the mootness rule “where a particular issue, although moot, is one capable of repetition and one of public importance.” 259 Kan. at 504.
Bennett argues that because he is no longer under state supervision and thus is no longer subject to the conditions of his probation, no justiciable controversy remains to be decided by this court. The State responds that the issue before the court in this case — whether probationers may be subjected to suspicionless searches — is an issue that will be repeated as a standard condition of probation and is important to this state’s rehabilitative and protective functions in enforcing probation conditions.
We conclude that although Bennett is no longer subject to the conditions of probation in this case, the question as to the constitutionality of suspicionless searches is an issue that is “ ‘capable of repetition, yet evading review.’ ”• Reece Shirley & Ron’s, Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 472, 592 P.2d 433 (1979) (quoting So. Pac. Terminal Co. v. Int. Comm. Comm., 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 [1911]). The State has argued that the probation condition at issue in this case is a standard condition that is imposed in various jurisdictions across the state. This representation is supported by the district court’s statements at sentencing that the suspicionless-search condition was “the Court order” and had “always been the Court’s order.” Moreover, given the length of time that may lapse between a defendant’s placement on probation and this court’s ultimate resolution of the defendant’s appeal, we find that there is a real possibility that the issue presented here may evade our review.
Because the issue presented here is capable of repetition and of public importance, we consider the merits of Bennett’s appeal. See Board of Johnson County Comm’rs, 259 Kan. at 504.
(2) Does a condition of probation that authorizes RANDOM, NONCONSENSUAL, SUSPICIONLESS SEARCHES VIOLATE A DEFENDANT’S RIGHTS UNDER THE FOURTH Amendment to the United States Constitution and/ or § 15 of the Kansas Constitution Bill of Rights?
The sole question presented in the State’s petition for review is whether a condition of probation that subjects probationers to random, nonconsensual, suspicionless searches violates the United States and Kansas Constitutions. The Court of Appeals held that such a condition violates the probationer s rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. The State argues that requiring articulable reasonable suspicion to conduct searches of probationers imposes an unreasonable burden on community corrections and law enforcement officers.
Standard of Review
K.S.A. 21-4610 sets forth a nonexclusive list of probation conditions that a court may impose. As the Court of Appeals noted in its decision, however, K.S.A. 21-4610 does not include any provision for searches (random or otherwise) of probationers. Bennett, 39 Kan. App. 2d at 896. The condition most akin to searches is perhaps K.S.A. 21-4610(c)(4), which states that probationers must “permit the court services officer or community correctional services officer to visit the defendant at home or elsewhere.”
A district court has broad discretion to impose any conditions of probation that the court deems “proper.” K.S.A. 21-4610(c); State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986). Kansas courts have consistently recognized, however, that a district court does not have discretion to impose probationary conditions that violate a probationer s constitutional rights, absent a compelling state interest. See State v. Evans, 14 Kan. App. 2d 591, 593, 796 P.2d 178 (1990) (holding unconstitutional a condition of probation requiring attendance at a specific church; condition did not bear reasonable relationship to rehabilitative goals, protection of public, or nature of the offense); State v. Mosburg, 13 Kan. App. 2d 257, 260, 768 P.2d 313 (1989) (holding unconstitutional a condition of probation requiring a probationer to refrain from becoming pregnant).
The question before this court is whether the condition of probation imposed by the district court in this case regarding searches violated Bennett’s constitutional rights. This is a question of law over which we have unlimited review. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). If we determine, as the Court of Appeals did below, that the condition is unconstitutional, then the district court’s imposition of that condition was a per se abuse of discretion and must be reversed. If this court finds that the search condition does not violate the defendant’s rights, then the court should affirm the district court’s probation order.
Analysis
The Fourth Amendment to the United States Constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Kansas Constitution Bill of Rights, § 15, guarantees these same protections.
The touchstone of the Fourth Amendment is reasonableness. Thus, the Fourth Amendment does not protect against all searches and seizures, but only those that are unreasonable. The determination as to whether a search is reasonable turns on the circumstances surrounding the search. See United States v. Knights, 534 U.S. 112, 118-19, 151 L. Ed. 2d 497, 122 S. Ct. 587 (2001); State v. Martinez, 276 Kan. 527, 529, 78 P.3d 769 (2003); see Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989).
The United States Supreme Court has explained that a person’s reasonable expectations of privacy depend on the level of freedom that person enjoys in society. Persons under state control — such as probationers, parolees, and prisoners — exist on a “ ‘continuum’ of state-imposed punishments” and thus enjoy more limited privacy than do free citizens. Samson v. California, 547 U.S. at 850. The Court has found that incarcerated prisoners have no reasonable expectation of privacy and can be searched at any time for any reason. Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). Parolees have some expectation of privacy, although that expectation is greatly diminished. Thus, the Court has upheld a California law requiring parolees to submit to suspicionless searches as long as these searches are not arbitrary or capricious. Samson, 547 U.S. at 854-56. Probationers have a greater expectation of privacy than parolees but enjoy more limited privacy rights than free citizens. See Samson, 547 U.S. at 850; Knights, 534 U.S. at 119.
This spectrum of privacy rights was developed by the United States Supreme Court over the course of almost 20 years in three cases: Griffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987); Knights, 534 U.S. 112; and Samson, 547 U.S. 843. Griffin involved a challenge by a probationer to a Wisconsin regulation that permitted community corrections officials to search probationers’ homes when the officials had “ ‘reasonable grounds’ to believe [the residence contained] contraband — including any item that the probationer cannot possess under the probation conditions.” 483 U.S. at 871 (citing Wis. Admin. Code HSS §§ 328.21[4], 328.16[1] [1981]). The Court held that the Wisconsin regulation did not violate the Fourth Amendment because the state’s “ ‘special needs’ ” — as articulated through its probation regulations — “justíf[ied] departures from the usual warrant and probable-cause requirements.” 483 U.S. at 873-74.
In reaching this conclusion, the Griffin Court noted that probation “is simply one point (or, more accurately, one set of points) on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.” 483 U.S. at 874. For this reason, 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.’ ” 483 U.S. at 874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 33 L. Ed. 2d 484, 92 S. Ct. 2593 [1972]).
Considering the particular needs of a state’s supervisory role in probation, the Court concluded in Griffin that states are permitted “a degree of impingement upon privacy [during the course of such supervision] that would not be constitutional if applied to the public at large.” 483 U.S. at 875. Thus, the Court found that enforcement of the Fourth Amendment’s warrant requirement “would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires.” 483 U.S. at 876. The Court also found that a probable-cause requirement would unreasonably disrupt the state’s probationary goals. 483 U.S. at 878. Despite these findings, the Court emphasized that the “per missible degree” that a state’s supervisoiy role may impinge upon probationers’ expectations of privacy was “not unlimited.” 483 U.S. at 875.
Griffin ultimately concluded that Wisconsin’s regulation requiring “reasonable grounds” — equivalent to reasonable suspicion in Fourth Amendment terms — to search probationers for violations of probation conditions met the minimum standards required under the Fourth Amendment. 483 U.S. at 880. It should be emphasized that the Court found it unnecessary to consider whether any search of a probationer’s home (by community corrections or law enforcement officers) need only satisfy a reasonable suspicion standard, because the type of searches challenged were “carried out pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement.” 483 U.S. at 887.
The unresolved question — whether warrantless searches of probationers bylaw enforcement officers are constitutional when such searches are supported by less than probable cause — was partially answered by the Court in Knights. In that case, the defendant was charged with committing various crimes while he was on probation. The defendant claimed that the evidence that formed the basis of the State’s case should be suppressed because it was the fruit of a warrantless search of his apartment. Knights, 534 U.S. at 114-16. The defendant’s previous probation order included a condition— almost identical to the condition of probation at issue in the present case — that the defendant would “ ‘[s]ubmit lots . . . person, property, place of residence, vehicle, [and] personal effects, to [a] search at anytime, with or without a search warrant, warrant of arrest[,] or reasonable cause by any probation officer or law enforcement officer.’ ” 534 U.S. at 114.
The United States Supreme Court held that because the search was supported by reasonable suspicion, it need not consider the constitutionality of the probation condition itself. Instead, the issue before the Court was “whether a search pursuant to this probation condition, and supported by reasonable suspicion, satisfied the Fourth Amendment.” (Emphasis added.) 534 U.S. at 114.
Because the search at issue in Knights was conducted by a law enforcement officer (not a community corrections officer who sus pected a probation violation), the Court did not apply the special-needs doctrine discussed in Griffin, but instead evaluated the reasonableness of the search under the totality of the circumstances, “with the probation search condition being a salient circumstance.” 534 U.S. at 118. The Court ultimately found that because probationers have a lesser expectation of privacy than do free citizens, and because the probation condition put the defendant on notice of his limited privacy rights, the defendant’s “reasonable expectation of privacy” was “significantly diminished.” 534 U.S. at 119-20. As such, a search based on reasonable suspicion did not violate the defendant’s Fourth Amendment rights. 534 U.S. at 121-22.
It should be noted that the Court’s decisions in Knights and Griffin involved searches of probationers based on reasonable suspicion of criminal activity and/or probation violations. Both cases held that searches based on reasonable suspicion satisfied the Fourth Amendment guarantee against unreasonable searches and seizures. Neither case, however, indicated whether a suspicionless search of a probationer would satisfy this constitutional requirement. The Court has not addressed this question to date.
The closest the Court has come to weighing in on this subject was its recent decision in Samson. That case involved a challenge by a parolee to a California law requiring every prisoner eligible for parole to “ ‘agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.’ ” Samson, 547 U.S. at 846 (quoting Cal. Penal Code Ann. § 3067[a] [West 2000]). The question before the Court was “whether a suspicionless search, conducted under the authority of this statute, violates the Constitution.” 547 U.S. at 846.
The Court ultimately held that the statute was constitutional under the Fourth Amendment. See 547 U.S. at 857. After discussing its opinions in Griffin and Knights, the Samson Court noted that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” 547 U.S. at 850. Samson explained that “ ‘[t]he essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.’ ” 547 U.S. at 850 (quoting Morrissey, 408 U.S. at 477). Applying the totality-of-the-circumstances approach (rather than the special-needs rationale of Griffin), the Court concluded that searches under the California law were constitutional because parolees do not have recognizable privacy rights:
“Examining the totality of the circumstances pertaining to petitioner’s status as á parolee, ‘an established variation on imprisonment,’ [citation omitted], including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as legitimate.” 547 U.S. at 852.
The Samson Court rejected the parolee’s argument that the California law permitting suspicionless searches was unreasonable in that it gave officers unbridled authority to search parolees and would lead to abuse. The Court noted that California law prohibits “ ‘arbitrary, capricious[,] or harassing’ searches.” 547 U.S. at 856 (quoting People v. Reyes, 19 Cal. 4th 743, 752, 80 Cal. Rptr. 2d 734, 968 P.2d 445 [1998]). The Court concluded that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee” under these circumstances. 547 U.S. at 857.
After Samson, it is clear that parolees may be subjected to suspicionless searches authorized by state law as long as such searches are not arbitrary or done for harassment purposes. It remains undecided whether probationers, who enjoy greater privacy rights than parolees but more limited rights than free citizens, may be subjected to similar searches; this is the question before this court in the present case. The United States Supreme Court has explained, however, that the degree to which searches may impinge on probationers’ expectations of privacy is “not unlimited.” Griffin, 483 U.S. at 875.
Before the Kansas Court of Appeals’ opinion in this case, no Kansas court has considered whether suspicionless searches of probationers are constitutional. But see State v. Uhlig, 38 Kan. App. 2d 610, 617, 170 P.3d 894 (2007), rev. denied 286 Kan. 1185 (2008) (declining to answer whether reasonable suspicion was required in all searches of probationers because reasonable suspicion was pres ent in that case). The United States Court of Appeals for the Tenth Circuit, however, applying Kansas law, has weighed in on the related issue of parolee searches.
In United States v. Freeman, 479 F.3d 743, 748 (10th Cir. 2007), the Tenth Circuit held that a warrantless search of a parolee under Kansas law must be supported by reasonable suspicion. Although Freeman recognized that the United States Supreme Court had upheld a California law authorizing a suspicionless search of a parolee, the Tenth Circuit found that the Supreme Court’s decision in Samson was based largely on the California law in question. The Tenth Circuit thus distinguished the circumstances in Samson from the facts before it, explaining:
“Samson does not represent a blanket approval for warrantless parolee or probationer searches by general law enforcement officers without reasonable suspicion; rather, the Court approved the constitutionality of such searches only when authorized under state law. Kansas has not gone as far as. California in authorizing such searches, and this search therefore was not permissible in the absence of reasonable suspicion.” 479 F.3d at 748.
The Tenth Circuit reached this conclusion that Kansas law did not authorize suspicionless searches based on the lack of Kansas statutes authorizing such searches and on the Kansas Department of Corrections’ (KDOC) Internal Management Policies and Procedures (IMPP), which provided at the time that special enforcement officers could “ ‘conduct a search of [a parolee or his or her property] without a warrant’ ” if the officer had “ ‘reasonable suspicion that evidence of a condition violation can be found on the person, or in the property in possession of the offender.’ ” Freeman, 479 F.3d at 744 (quoting Supplemental Vol. I, IMPP 14-164, p. 7). This provision has apparently been removed from the IMPP.
Nevertheless, the current IMPP requires parolees to agree to the following provision: “I agree to be subject to a search by parole officer(s) of my person, residence, and other property under my control." IMPP 14-104, Attachment A, p. 4. The discussion immediately following this provision explains: “My parole officer or a Special Enforcement Officer may conduct a search if suspicion exists that I have violated the conditions of my release or that a search is necessary to the performance of the parole officer’s duties in the supervision or enforcement of my release conditions.” (Emphasis added.) IMPP 14-104, Attachment A, p. 4. Thus, even under the current version of the IMPP, parolees are told that searches must be based on a suspicion of a parole violation.
Although this court is not bound by a federal court’s interpretation of Kansas law, the Tenth Circuit’s reasoning in Freeman is persuasive. The Kansas Legislature has not authorized suspicion-less searches of probationers or parolees. Kansas’ procedures for parole supervision specifically inform parolees that they have an expectation that searches will not be conducted unless an officer has a (reasonable) suspicion that such a search is necessary to enforce the conditions of parole. Put another way, parolees in Kansas have an expectation that they will not be subjected to suspicionless searches.
It logically follows from this conclusion that because probationers have a greater expectation of privacy than parolees, searches of probationers in Kansas must also be based on a reasonable suspicion. Thus, the condition of Bennett’s probation subjecting him to random, nonconsensual, suspicionless searches violates his rights under the Fourth Amendment and Kansas Constitution Bill of Rights.
The State argues that imposing a reasonable suspicion standard in all probation searches will thwart the purposes of community corrections officers, as corrections officials will no longer be permitted to search a probationer’s residence or belongings when the officer conducts probation visits. This argument fails to recognize that although probationers’ privacy rights are more limited than are the rights of free citizens, probationers do enjoy some expectation of privacy in their persons and property. Law enforcement efforts must be reasonably calculated with reference to the probationers’ privacy rights. Reasonable suspicion is not an overly-burdensome standard of proof. See Griffin, 483 U.S. at 879-80.
Finally, tire State argues that even if this court determines that searches of probationers must be supported at least by reasonable suspicion, we need not find that the particular condition of probation in this case violates the Fourth Amendment. In particular, the State argues that the condition of probation as set forth in the journal entry authorizes searches that community corrections or law enforcement officers “deem[] necessary . . . without probable cause or need for further Court order.” The State argues the journal entry does not specifically state that such searches may be conducted without reasonable suspicion.
This argument is not supported in the record. As the Court of Appeals explained in its opinion in this case, “the sentencing judge’s comments and ultimate order during sentencing provide that either community corrections or law enforcement officers can conduct searches at any time for potentially any reason. A sentence does not derive its effectiveness from the journal entry but rather is effective when pronounced from the bench.” State v. Bennett, 39 Kan. App. 2d 890, 185 P.3d 320 (2008). In addition, during argument before this court, the State indicated that its position was that the “deemed necessary” language in the journal entry authorized broader searches than would be permissible under a reasonable suspicion standard.
In summary, although probationers have more limited expectations of privacy than do free citizens, the United States Supreme Court has found that law enforcement’s ability to search probationers is “not unlimited.” Griffin, 483 U.S. at 875. Given probationers’ expectations of privacy, community corrections officers or other law enforcement officers must have a rational, articulable suspicion of a probation violation or other criminal activity before subjecting the probationer’s person or property to a search.
The condition of probation in this case, requiring that Bennett submit to random, suspicionless searches, violates the defendant’s constitutional rights under die Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights. The decision of the Court of Appeals is affirmed, and the decision of the district court is reversed. Because Bennett is no longer on probation, no remand is necessary.
McFarland, C.J., not participating.
Marquardt, J., assigned.
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The opinion of the court was delivered by
Beier, J.:
In this workers compensation appeal, we decide whether a claimant may recover expert witness fees when the fees are incurred in pursuit of post-award medical benefits.
The legally relevant facts are undisputed. Claimant John W. Higgins sustained a back injury in 1997 while working for Respondent Abilene Machine, Inc., which is insured by Respondent Continental National American Group. Higgins received compensation for his injury and later twice received post-award medical benefits. During the second post-award proceeding, Drs. Paul S. Stein and Gary W. Coleman gave depositions for Higgins. At the conclusion of the proceeding, Higgins sought payment for $1,064.47 in fees and expenses — “costs”—for his expert witnesses under the authority of K.S.A. 2008 Supp. 44-510k(c).
K.S.A. 2008 Supp. 44-510k(c) provides:
“The administrative law judge may award attorney fees and costs on the claimant’s behalf consistent with subsection (g) of K.S.A. 44-536 and amendments thereto. As used in this subsection, ‘costs’ include, but are not limited to, witness fees, mileage allowances, any costs associated with reproduction of documents that become a part of the hearing record, the expense of making a record of the hearing and such other charges as are by statute authorized to be taxed as costs.”
K.S.A. 44-536(g) allows recovery of reasonable attorney fees.
The administrative law judge (ALJ) denied the requested payment, and the Workers Compensation Board (Board) affirmed the denial as to the portion attributable to expert witness fees, $905. One Board member dissented, arguing: “Claimants are continually put to the financial test in establishing their right to benefits . . . . [I]f the cost of retaining an expert to testify on one’s behalf is not considered a recoverable expense, it may deter a claimant from requesting additional medical benefits.”
A divided panel of our Court of Appeals affirmed the Board’s decision.
The majority of the panel concluded that expert witness fees may not be recovered without specific statutory authority. See Divine v. Groshong, 235 Kan. 127, 679 P.2d 700 (1984); Grant v. Chappell, 22 Kan. App. 2d 398, 916 P.2d 723, rev. denied 260 Kan. 992 (1996). It also noted that “costs” are routinely defined in the Code of Civil Procedure as court costs, filing fees, service of process fees, etc., see K.S.A. 60-2003; and expert witness fees have never been included in this definition, Divine, 235 Kan. at 141. Furthermore, many statutes specifically provide for the recovery of expert witness fees. See K.S.A. 16-1305; K.S.A. 49-426(d); K.S.A. 2008 Supp. 75-5672(c). K.S.A. 2008 Supp. 44-510k(c) does not.
In dissent, Judge John J. Bukaty, Jr., argued that K.S.A. 2008 Supp. 44-510k(c) differs from other Kansas statutes because it does not provide a specific list of costs. He read the statute’s use of the phrase, “ ‘costs’ include, but are not limited to,” to imply that an ALJ may, in his or her discretion, award expert witness fees. Judge Bukaty also appeared to be persuaded by the public policy argument of the Board’s dissenter, opining that many claimants would not be able to afford to seek post-award medical benefits if expert witness fees could not be recovered.
We granted Higgins’ petition for review.
Before us, Higgins continues to advance the public policy argument, asserting that K.S.A. 2008 Supp. 44-510k(c) must require or allow recovery of expert witness fees incurred in a proceeding to recover post-award medical benefits, because a claimant cannot hope to obtain such benefits without expert testimony in his or her favor.
For their part, respondents argue in a supplemental brief filed with this court that the legislature could have expressly defined “costs” as used in K.S.A. 2008 Supp. 44-510k(c) to include expert witness fees. In their view, the passage in 44-510k(c) stating “witness fees, mileage allowances, any costs associated with reproduction of documents that become a part of the hearing record, the expense of making a record of the hearing and such other charges as are by statute authorized” means that the items to be allowed as costs are the traditional ones associated with litigation, not expert witness fees.
The question before us is one of first impression. It also is a question of statutory interpretation or construction subject to unlimited review by this court. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). No significant deference is due the ALJ’s or the Board’s interpretation or construction of a statute. See Denning v. KPERS, 285 Kan. 1045, 1048, 180 P.3d 564 (2008) (“An agency’s interpretation of a statute is not conclusive; final construction of a statute always rests within the courts.”); Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007) (agency’s interpretation of statute not binding on court; although persuasive, not conclusive); Board of Leavenworth County Comm'rs v. Whitson, 281 Kan. 678, 684, 132 P.3d 920 (2006) (same de novo standard of review applied to question of statutory interpretation, construction arising from administrative adjudication as to one arising out of lower court).
The most fundamental rule of statutory interpretation and construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). The court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinaiy words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
“When a statute is plain and unambiguous, we must give effect to its express language, rather than determine what the law should or should not be. We will not speculate on the legislative intent and will not read the statute to add something not readily found in it. If the statute’s language is clear, there is no need to resort to statutory construction.” Graham, 284 Kan. at 554.
“If, on the other hand, a plain reading of the text of a statute yields an ambiguiiy or a lack of clarity, statutory construction becomes appropriate. In such circumstances, a court must move outside the text of the provision at issue and examine other evidence of legislative intent, such as legislative history, or employ additional canons of statutory construction to [determine] the legislature’s meaning.” Board of Leavenworth County Comm’rs, 281 Kan. at 685.
The plain language of the first sentence of K.S.A. 2008 Supp. 44-510k(c) explicitly endows an ALJ with the discretion to grant attorney fees and costs to a workers compensation claimant in a post-award medical benefits proceeding. The second sentence does not define “costs”; rather, it sets nonexclusive parameters on the word’s coverage by listing several examples. The plain language of this second sentence does not answer the specific question before us regarding whether an ALJ may grant a claimant expert witness fees. We therefore look to legislative history and canons of statutory construction to determine the legislature’s intent.
The language on which this case focuses — “[a]s used in this subsection, ‘costs’ include, but are not limited to, witness fees, mileage allowances, any costs associated with reproduction of documents that become a part of the hearing record, the expense of making a record of the hearing and such other charges as are by statute authorized to be taxed as costs” — was added to K.S.A. 44-510k(c) in 2002. L. 2002, ch. 122, sec. 6. Unfortunately, other than the existence of the amendment and its timing, legislative history explains nothing about the legislature’s contemporaneous reasoning. It appears that the Workers Compensation Advisory Council requested the changes. Minutes of the Senate Committee on Commerce, March 22, 2002. But the only expansion on the rationale for the amendment, found in the Conference Committee Report, for the most part merely repeats the language of the statute itself:
“[The changes will] [c]larify that attorney fees and costs that may be awarded by administrative law judge in a workers compensation case could include witness fees, mileage allowances, any costs associated with reproduction of documents that become a part of the hearing record, and the expense of making a record of the hearing.”
Lacking any illuminating legislative history, we perceive three possible statutory construction arguments regarding 44-510k(c) in Higgins’ favor: (1) “Witness fees” as listed in potential “costs” should be read to include expert witness fees; (2) “such other charges as are by statute authorized to be taxed as costs,” also listed, should be read to include expert witness fees; and (3) expert witness fees need not be listed as potential costs because the list is merely exemplary, not exclusive, and such fees are similar enough to the listed items to conclude that the statute authorizes their award.
With regard to the first argument, Higgins asserts that the only witnesses who charge a fee in proceedings to recover post-award medical benefits are expert witnesses. Thus, in his view, the legislature must have intended that “witness fees” include expert witness fees. This assertion has undeniable, superficial commonsense appeal. Yet the in pari materia canon of statutory construction— i.e., the imperative that we analyze the Workers Compensation Act as a whole — persuades us that “witness fees” is not so elastic that it includes expert witness fees. The Act’s specific provision on “witness fees” states only:
“Each witness who appears before the director or administrative law judge in response to a subpoena shall receive the same fee and mileage as is provided for witnesses attending district courts in civil cases in this state. The director or the administrative law judge, whoever is conducting the hearing, shall tax and apportion the costs of such witness fees in the discretion of the director or the administrative law judge, as the case may be, and shall make such orders relative to the payment of such fees as the director or the administrative law judge deems expedient in order to secure and provide for the payment of the witness fees.” K.S.A. 44-553.
For whatever reason, the legislature chose to make “witness fees” under the Workers Compensation Act a defined term, and to confine such fees to those permitted in civil cases. Witnesses in civil cases receive reimbursement for necessary travel beyond one mile and $10 per day “[fjor attending before any court or grand juiy, or before any judge, referee, or commission.” K.S.A. 28-125(a)(1), (3).
With regard to the second argument, we observe that no provision in either the Workers Compensation Act or the Code of Civil Procedure authorizes expert witness fees to be classified or taxed as “costs.” Further, this silence is not attributable to the legislature’s lack of drafting or enactment know-how. When it has wanted to allow the shifting of responsibility for payment of expert witness fees from one party to another, it has had no trouble saying so. See K.S.A. 16-1305 (outdoor power equipment supplier hable in civil action to retailer for actual costs of action, including attorney, paralegal, expert witness fees); K.S.A. 49-426(f) (any person injured by violation of act governing mined-land conservation, reclamation may bring action for damages, including reasonable attorney, expert witness fees).
With regard to the third argument, we have already acknowledged that K.S.A. 2008 Supp. 44-510k(c)’s list of potential costs is exemplary rather than exclusive; however, we disagree that expert witness fees are so similar to the other items in the list that we must regard those fees as necessarily within the legislature’s fair contemplation. If expert witness fees are at all similar in character to any of the recoverable items in K.S.A. 2008 Supp. 44-510k(c), they are similar to attorney fees. If they were intended to be allowed, we are confident they would have been expressly set forth in the statute’s first sentence with their professional fees counterpart.
We are left with Higgins’ public policy argument, i.e., that claimants should not be prevented from obtaining adequate post-award care because they cannot afford to employ an expert to support additional medical benefits. We can certainly understand that this argument is emotionally compelling. Nevertheless, we are not free to act on emotion or even our view of wise public policy. We leave the guidance of public policy through statutes to the legislature.
Affirmed.
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The opinion of the court was delivered by
Nuss, J.:
This case requires us to determine the extent of an easement that the parties agree had been created by implication. The trial court held that the easement could be used for access across the servient tenement to a future residence on the dominant tenement and for utilities to that residence. The owner of the servient tenement appeals both rulings. We affirm.
FACTS
In 1952, Lawrence and Etta Stroda, grandparents of Ed Stroda, purchased Douglas County farmground containing an occupied residence: the Northwest Quarter (NW Vi). They were allowed an easement across neighboring farmground, the Southwest Quarter (SW Vi), to gain access to their land. In 1957, Lawrence and Etta in turn bought the SW Vi. This purchase joined both tracts under single ownership, and by the doctrine of merger, extinguished the easement.
Upon Etta’s death in 1985, the property ownership unity was severed, with ownership of the SW Vi passing to her daughter, Marie Jarboe, and the NW Vi to her son, Edmond Stroda, Sr. The severance allowed an easement across Marie’s SW Vi to again be created through implication, allowing Edmond access to his NW Vi. From 1985 onward, both tracts were farmed by the same agricultural tenant.
In 2001, ownership of the NW Vi passed from Edmond to his trust, the appellee, with his son, Ed Stroda, serving as a trustee (Stroda). In 2003, ownership of the SW Vi passed from Marie to Charles Joice and then to the appellant, Joice Holdings, LLC (Joice).
In October 2006, Stroda sought to sell the NW Vi for use as a single residence, claiming that the easement across the SW Vi could support both residential access and utility use. As owner of the SW Vi, Joice admitted the existence of an implied easement but contended that its use was limited to strictly agricultural purposes. The residence on the NW Vi had ceased to be occupied in 1957, and no one had lived on the tract since that time. However, during the time that Etta had owned both tracts, i.e., before 1985, she and her son Edmond had discussed building a new house on the NW Vi. At that time he had looked into the requirements to obtain a building permit and the costs to put in electricity and water. These plans were never fully executed.
After Joice’s objection, Stroda filed an action requesting a judicial declaration that an easement existed allowing access across Joice’s tract for residential and agricultural purposes. Joice then filed a motion for summary judgment, which was partially granted in holding that the earlier easement was extinguished by the doctrine of merger. The motion was also partially denied, with the trial court citing the Restatement (Third) of Property to hold that future use of the easement for residential purposes was also appropriate.
The trial court was unable to rule on the related utility easement issue because of the lack of evidence on the type of utilities to be placed and the damage, if any, they would cause Joice’s tract. After a bench trial later that month to determine the extent of the utilities’ impact, the court then determined that utility use was reasonable and therefore appropriate. Per the journal entry, the court made an express finding that “Plaintiff [Stroda] further has the right to install such utilities as Plaintiff may desire, as long as it is underground and within the confines of the area currendy used for the access easement.”
Joice appealed, and the case was transferred to this court pursuant to K.S.A. 20-3018(c).
Other facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The trial court correctly held that the implied easement allowed for residential access.
The material facts are undisputed. Both parties agree that an implied easement exists over the SW 74 (the servient tenement) for the benefit of the NW 74 (the dominant tenement). Accordingly, the issue is the appropriate scope of that easement Under these circumstances, this court’s review is unlimited. Botkin v. Security State Bank, 281 Kan. 243, 130 P.3d 92 (2006) (When facts are undisputed, appellate review of the district court’s grant of summary judgment is de novo.).
In arguing that the easement is limited to agricultural purposes, Joice first cites to decisions of this court involving express easements. See, e.g., City of Arkansas City v. Bruton, 284 Kan. 815, 166 P.3d 992 (2007). Joice acknowledges Bruton involved an express easement but argues it should apply to implied easements: “[A]n easement should not be expanded beyond the purpose for which it was created and the use made of the dominant tenement at the time of the grant.” Joice argues that the purpose and use of the easement at the time of creation was solely for agricultural purposes; accordingly, it should not be expanded to include resi dential use. In support of this same proposition, Joice also cites to decisions of other jurisdictions involving easements by prescription. See, e.g., Crane v. Hayes, 187 W. Va. 198, 417 S.E.2d 117 (1992); Burns v. Goff, 164 W. Va. 301, 262 S.E.2d 772 (1980).
On these facts, we disagree with Joice’s reliance upon these cases. Express easements and prescriptive easements contain fundamental differences from those that are implied. The scope of an express easement is much more ascertainable; one essentially looks at the language employed by the parties. Parties to an instrument know that document is to be the final expression of their intentions, and there is little, if any, need to give much weight to circumstantial evidence of their intent. By contrast, an implied easement obviously has no express language and external evidence of intent becomes much more important. While we acknowledge that a prescriptive easement is similar to an implied easement in that neither has express language to interpret for determining the intent of the parties, prescriptive easements are interpreted narrowly because they are created by the adverse use of the property, with the use during the prescriptive period defining the scope of the easement. See Dotson v. Railway Co., 81 Kan. 816, 106 P. 1045 (1910).
Wisely, Joice relies primarily upon an implied easement case in Kansas: Van Sandt v. Royster, 148 Kan. 495, 83 P.2d 698 (1938). There, Van Sandt sued his neighbor because their common underground sewer line kept spilling onto Van Sandt’s property. Van Sandt claimed there was no implied easement allowing the line to cross his property. This court easily rejected his argument. Among other things, it held that Van Sandt should have known there was such a sewer line when he purchased the property because he himself had indoor plumbing.
Joice relies upon Van Sandt to argue that circumstances (uses) at the time of the easement’s creation exclusively determine the parties’ intent, and further, that even those circumstances (uses) can be additionally limited if they are no longer reasonably necessary:
“Van Sandt sets forth a two part test: first, what uses were in place at the time of the conveyance (i.e., continuance of uses) and, second, are those continued uses reasonably necessary so as to be allowed to continue. Therefore, Van Sandt makes it clear that not even all of the uses that existed before the division of the property that created the implied easement are necessarily allowed to continue, only those that are reasonably necessary. Given this well established test, it is clear that Van Sandt does not allow for an expansion of previous uses by implied easement!;] rather it limits the previous uses to only those reasonably necessary.”
Joice’s cited language from Van Sandt in support of this argument comes from comment j, § 28, of the Restatement (First) of Property (Tentative Draft No. 8, 1937):
“ ‘Parties to a conveyance may, therefore, be assumed to intend the continuance of uses known to them which are in a considerable degree necessary to the continued usefulness of the land. Also they will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation.’ ” Van Sandt, 148 Kan. at 501.
As Stroda points out, however, Joice is only quoting a portion of the entire proposed comment from the Restatement’s tentative draft. The comment actually begins:
“ ‘The effect of the prior use as a circumstance in implying, upon a severance of possession by conveyance, an easement or a profit results from an inference as to the intention of the parties. To draw such an inference, the prior use must have been known to the parties at the time of conveyance, or, at least, have been within the possibility of their knowledge at the time. Each party to a conveyance is bound not merely to what he intended, but also to what he might reasonably haveforseen the other party to the conveyance expected.’ ” (Emphasis added.) Van Sandt, 148 Kan. at 501.
After the portion quoted by Joice, the full tentative draft concludes with:
“ ‘The degree of necessity required to imply an easement in favor of the conveyor is greater than that required in the case of the conveyee .... Yet, even in the case of the conveyor, the implication from necessity will be aided by a previous use made apparent by the physical adaptation of the premises to it.’ ” (Emphasis added.) Van Sandt, 148 Kan. at 501.
Taken in its entirety, the tentative draft of the comment does not support Joice’s hmiting argument. Instead it supports the idea that prior use, as a factor in determining the intent of the parties, includes not only uses that were known at the time of the conveyance, but also those that had a possibility of being known at that time and those that a party “might reasonably have foreseen the other party . . . expected.” See also Smith v. Harris, 181 Kan. 237, 249, 311 P.2d 325 (1957) (“The implied easement arising from an ‘implied reservation or grant’ is founded upon the intention of the parties as well as what might reasonably have been foreseen the other party to the conveyance expected.”).
In the instant case, Joice admits the implied easement was created in 1985 when the property was divided and the tenant who farmed the SW Vi was ¿so ¿lowed to cross it to farm the NW Vi. Residenti¿ use was known, and certai¿y had a possibility of being known, to the parties. A look at the NW Vi in 1985 would have reve¿ed the existence of a residence, ¿beit unoccupied, on the tract. The tri¿ court expressly found that the residence’s remains were evident from photographs taken 20 years later. Consequently, that prior use can be used in determining the intent of the parties.
Moreover, evidence shows that before the implied easement was created, the owner of the NW Vi, Etta, had discussions with her son and eventu¿ owner of that tract, Edmond, about building a house there. He in turn looked into obtaining a building permit and the cost of supplying the house with electricity and water. As owner of both tracts, Etta therefore might reasonably have foreseen that Edmond expected to use the NW Vi, and the related easement, for residenti¿ purposes.
It is ¿so v¿uable to consider other language that became part of the permanent Restatement on Property when adopted in 1944, 6 years after Van Sandt. That language is best examined in the context of case law cited by Stroda that is directly on point.
In Fristoe v. Drapeau, 35 Cal. 2d 5, 215 P.2d 729 (1950), grantor Whittier built a permanent gravel roadway through its tract. Whittier then planted lemon and avocado groves and subdivided. Before any parcels were sold Whittier used die road for ingress and egress from all parcels for tree pruning, fertilization, and other work incident¿ to growing lemons and avocados. Plaintiff Fristoe and defendant Drapeau bought tracts adjoining the roadway, with Drapeau objecting when Fristoe wanted to use the road to access a residence she intended to build on her parcel.
As in the instant case, defendant acknowledged an implied easement, but argued that it was restricted to use being made at time of severance of plaintiff s parcel — agricultural purposes, e.g., servicing the groves — and that using the road for access to a residence would increase the burden of the easement. The trial court rejected this restricting argument. The California Supreme Court affirmed, first observing that
“[T]he purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances. Although the prior use made of the property is one of the circumstances to be considered, easements of access have been implied in this state in situations in which there was no prior use.” (Emphasis added.) 35 Cal. 2d at 8-9.
Important to the instant case, the court also cited Restatement (First) of Property § 484, especially comment b, which had not been cited by the Van Sandt court- — perhaps because the restatement was still in prehminary draft form when Van Sandt was decided.
“The extent of an easement created by implication is to be inferred from the circumstances which exist at the time of the conveyance and give rise to the implication. Among these circumstances is the use which is being made of the dominant tenement at that time. Yet it does not follow that the use authorized is to be limited to such use as was required by the dominant tenement at that time. It is to be measured rather by such uses as the parties might reasonably have expected from the future uses of the dominant tenement. What the parties might reasonably have expected is to be ascertained from the circumstances existing at the time of the conveyance. It is to be assumed that they anticipated such uses as might reasonably be required by a normal development of the dominant tenement. It is not to be assumed, however, that they anticipated an abnormal development. Hence, the scope of an easement created by implication does not extend to uses required by such [abnormal] development.” (Emphasis added.) Restatement (First) of Property, § 484, comment b (1944).
As a result, the Fristoe court stated that “[Consideration must be given not only to the actual uses being made at the time of the severance [creation], but also to such uses as the facts and circumstances show were in the reasonable contemplation of the parties at the time of the conveyance.” 35 Cal. 2d at 10. It then concluded that under all of the circumstances existing at the time of severance, “we cannot say as a matter of law that the use of the road for purposes connected with a private residence was not within the contemplation of the parties or that the trial court erred in failing to limit plaintiff s rights in the roadway to use thereof for agricultural purposes.” 35 Cal. 2d at 10.
We independently observe that as in Fristoe and the instant case, the court in Adams v. Crook, 43 Or. App. 427, 602 P.2d 1143 (1979), also dealt with a future residence on agricultural property. Like the instant case, the property had also formerly included a residence. Like Fristoe, the Oregon Court of Appeals looked to the Restatement (First) of Property § 484, comment b for determining the scope of the implied easement. Section 484 provided:
“In ascertaining, in the case of an easement appurtenant created by conveyance, whether additional or different uses of the servient tenement required by changes in the character of the use of the dominant tenement are permitted, the interpreter is warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.” (Emphasis added.)
Based upon facts similar to the instant case, the Adams court ruled that access to the proposed single residence was covered by the implied easement:
“[Testimony at the trial showed that the roadway was originally used to gain access to a house now no longer standing. Since about 1930 the roadway has been used for various agricultural purposes, chiefly for the hauling of feed and livestock [to the dominant estate’s pastureland] .... We find when the easement was created in 1946, it was foreseeable that the land, which had apparently remained unimproved since the old home had fallen into disrepair, would be used for various agricultural purposes. We further find that it was unlikely that the parties at that time would foresee a subdivision. We, therefore, affirm the trial court’s limitation on the use of the easement which we interpret as authorizing a single residence.” (Emphasis added.) Adams, 43 Or. App. at 433-34.
Of more recent vintage than Fristoe and Adams is Tungsten Holdings, Inc., v. Kimberlin, 298 Mont. 176, 994 P.2d 1114 (2000). There, the Montana Supreme Court repeatedly relied upon the Restatement (First) of Property § 484, comment b—not only to define the physical scope of an uncontroverted implied easement but also to deny Kimberlin’s request that Tungsten Holdings’ use of the road be limited to agricultural and recreational uses.
Similar to the instant case, the southern parcel owned by Kimberlin fronted a county road. The northern parcel owned by Tungsten Holdings was apparendy landlocked, with the exception of Road 399. When Kimberlin, as the owner of the southern parcel, apparently considered restricting the access to its property by Tungsten Holdings, its neighbor sued.
Kimberlin complained that the trial court had expanded the implied easement to two lanes and argued that it should be limited to the historical “narrow road.” Citing comment b and Fristoe, the Montana Supreme Court disagreed, ultimately holding that the earlier parties “would reasonably have contemplated that they would meet on the same road.” 298 Mont, at 184. Also citing comment b, it stated that “the extent of an easement created by implication ‘is to be measured by . . . such uses as the parties might reasonably have expected from future uses of die dominant tenement.’ ” 298 Mont. at 183.
As for hmiting the road use to agricultural and recreational purposes, the Tungsten court also rejected Kimberlin’s position:
“As previously noted, the use of the easement at the time of the severance does not provide absolute limits to the use of the easement. We assume rather that the parties ‘anticipated such uses as might reasonably be required by a normal development of the dominant tenement.’ Restatement of Property § 484 cmt. b (1944). The Kimberlins have not pointed to anything concerning ‘the circumstances existing at the time of the conveyance’ that would suggest that the parties intended that the use of the road be limited to agricultural and recreational purposes. Restatement of Property § 484 cmt. b (1944). Nor have the Kimberlins shown that a normal development of the northen parcel would be limited to agricultural and recreational purposes. We hold that the District Court did not err in failing to limit the use of the easement to agricultural and recreational uses. We note, however, that whether any use of the road by Tungsten is an ‘abnormal development’ is not before the Court. Restatement of Property § 484 cmt. b (1944).” (Emphasis added.) 298 Mont, at 184.
For all of the above reasons, we agree with the trial court. Accessing a single residence is within the scope of the implied easement.
Issue 2: The trial court correctly held that the implied easement allowed for utility access.
Joice next appears to argue that even if the implied easement included residential access, it cannot include utilities for the residence. After the bench trial on the impact of the utilities on Joice’s tract, the court found “Plaintiff [Stroda] further has the right to install such utilities as Plaintiff may desire, so long as it is underground and within the confines of the area currently used for the access easement.” Accordingly, our standard of review on the utilities issue could be mixed. See, e.g., U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003) (When a district court has made findings of fact as a basis for its legal conclusions, our function merely is to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support the conclusions of law.).
Joice does not appear, however, to take exception to the findings of the trial court regarding utility impact. Instead, according to both its original and reply briefs, it seems to only take exception to the threshold legal question of whether utilities (without regard to degree of impact) could even be considered because they would constitute an improper expansion of the original easement. It argues: “Plaintiff has asked [for], and has been granted as a matter of law, the right to expand an implied agricultural easement to allow for residential and utility use.” (Emphasis added.) Because the trial court ruled as a matter of law that the easement included residential purposes, apparently the court also essentially ruled as a matter of law that die easement included utility purposes. Consequently, like both of the parties argue, we will consider our review of this question de novo.
The case of Van Sandt v. Royster is also informative of Kansas law on the issue of utility access to the NW Va. That court held that “[I]f land may be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied ... on the basis of necessity alone.” Van Sandt, 148 Kan. at 502. As explained above, the NW Va can be used for residential purposes; as explained below, use of that residence would involve disproportionate effort and expense without the grant of an easement for utility purposes across die Joice tract.
A way of necessity “ ‘is not limited to those purposes connected with the use of a dominant tenement existing at the time the easement was created, but is available for any and all purposes for which the dominant tenement may be adapted. ... In other words, a way of necessity is held to be coextensive with the reasonable needs, present and future, of the dominant estate.’ ” Morrell v. Rice, 622 A.2d 1156, 1160 (Maine 1993). One legal justification for the granting of easements by necessity is that there is a use “so evidently necessary to the reasonable enjoyment” of the premises, that the law will assume it was intended by the parties. Galvin v. Gaffney, 24 F. Supp. 2d 223, 232 (D. Conn. 1998). Several courts have addressed whether “reasonable” use of an easement includes utility use. “In current times, the reasonable use and enjoyment of property, at a minimum, requires utilities. . . as long as it does not overburden the servient estate.” Richards v. Land Star Group, Inc., 224 Wis. 2d 829, 842, 593 N.W.2d 103 (1999). Likewise, utilities are “essential for most uses which property can reasonably be put in these times.” Morrell, 622 A.2d at 1160. Even when the use of the easement at the time of creation has not included utility support, courts have found that “the reasonable use of the property in current times requires utility services.” Atkinson v. Mentzel, 211 Wis. 2d 628, 566 N.W.2d 158 (Wis. App. 1997).
We observe that even when the use is reasonable, it must be necessary; the level of necessity required has been found to be less than strict necessity, but more than inconvenience. See Schwob v. Green, 215 N.W.2d, 244 (Iowa 1974) (“While . . . strict necessity need not be proven, we have also consistently said mere inconvenience is not enough."), and Jowers v. Hornsby, 292 S.C. 549, 550, 357 S.E.2d 710 (1987) (“The necessity must be actual, red and reasonable as distinguished from convenient, but need not be absolute and irresistible.”). In our view, a lack of utilities to a new house in Kansas goes beyond mere inconvenience and begins to approach the unlivable. A house generally is not considered to be a residence without water, electricity, and similar utilities, e.g., the ability to be heated and cooled, lit in the dark, and equipped for communication with the outside world.
Accordingly, in this case, allowing an implied easement for residential purposes without also allowing utility access to the NW Vi would practically be denying residential use of the property. At the bench trial, the trial court found that it would be reasonable to grant utility access after residential use was found to be appropriate. The Strodas testified that all of the utilities required could be placed underground in a 30-foot-wide strip, which is the width of the current implied easement. Based upon this record, we conclude as a matter of law that placement of utilities underground is necessary, and reasonable, and would not overburden the servient tenement, as they would be contained entirely within the boundaries of the already existing easement.
We have concluded that the trial court did not err in its holdings. We find nothing in the current incarnation of the Restatement of Property that changes our analysis of these two issues. See Restatement (Third) of Property: Servitudes, § 4.1 (2000) (“A servitude should be interpreted to give effect to the intention of the parties ascertained from . . . the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.”); § 4.10 (“Except as limited by the terms of the servitude determined under § 4.1, the holder of an easement ... is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.”). Indeed, the present Restatement appears to reject narrow interpretations of easements. See § 4.1, comment a (Servitudes should be interpreted to carry out the intent of the parties and the purpose of the intended servitude rather than narrowly construed to favor the free use of land. This rule is “based in the recognition that servitudes are widely used in modem land development and ordinarily play a valuable role in utilization of land resources. The rule is supported by modem case law.”).
Finally, Joice suggested in its reply brief that this matter should still be remanded so that an evidentiary hearing could also be held to determine the burden of the Stroda residence on Joice’s tract. Its argument was admittedly only addressing the possibility of this court expressly applying a “reasonable burden” test- — purportedly urged by Stroda — to the residential easement question. Because we did not apply this test, we need not address Joice’s suggestion.
Affirmed.
Daniel L. Love, District Judge, assigned.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinaiy Administrator against Terence A. Lober, of Leavenworth, Kansas, an attorney licensed to practice law in Kansas since September 1979. A formal complaint was filed on May 13, 2008.
On July 1, 2008, a hearing on the formal complaint was held before a hearing panel of the Kansas Board for Discipline of Attorneys. Respondent did not appear, either in person or by counsel.
After hearing the evidence presented at the hearing, the hearing panel concluded that Respondent violated six rules of professional conduct:
KRPC 1.1 (2008 Kan. Ct. R. Annot. 400) (competence);
KRPC 1.2 (2008 Kan. Ct. R. Annot. 411) (scope of representation);
KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence);
KRPC 1.4(a) (2008 Kan. Ct. R. Annot. 432) (communication);
KRPC 3.2 (2008 Kan. Ct. R. Annot. 525) (expediting litigation); and
KRPC 8.4(d) and (g) (2008 Kan. Ct. R. Annot. 586) (misconduct).
In addition, the hearing panel found that Respondent violated Kansas Supreme Court Rule 211(b) (2008 Kan. Ct. R. Annot. 313) (failure to respond to the formal complaint).
The panel unanimously recommended that Respondent be disbarred. The panel made the following findings of fact, conclusions of law, and recommendations for discipline:
"FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“2. In early 2005, [A.W.] and [C.W.] were considering purchasing a duplex in Leavenworth, Kansas, from Juanita Simpson. While touring the duplex, [A.W.] and [C.W.] noticed a label marked ‘lift station’ adjacent to a breaker in the breaker box. According to [A.W.] and [C.W.], they questioned Ms. Simpson regarding the reference. Ms. Simpson stated that she was unsure why the breaker was labeled lift station as there was no lift station connected to the house. Ms. Simpson indicated that there was a sump pump and that the reference to the lift station must refer to the sump pump.
“3. [A.W.] and [C.W.] retained a company to conduct an inspection of the property. The inspector examined the property. The inspector informed [A.W.] and [C.W.] that there was no lift station, but that the reference must refer to the sump pump.
“4. [A.W.] and [C.W.] purchased the property. The disclosure statement, completed by Ms. Simpson’s realtor, Drehr Lesini, and signed by Ms. Simpson, did not include any reference to the lift station and did not include the documentation regarding the repairs made to the fifi station.
“5. After they purchased the property, [A.W.] and [C.W.] discovered that the sewer system of the home was connected to a lift station and could not be otherwise connected to the city’s sewer system.
“6. [A.W.] and [C.W.] located a receipt from All American Carpet Cleaning inside the duplex that established that the sewer backed up into the basement and Ms. Simpson paid to have the carpet cleaned. Further, [C.W.] contacted the real estate company that was involved with the sale of [the] duplex to Ms. Simpson from the previous owner. [C.W.] obtained a copy of the disclosure statement provided to Ms. Simpson at the time she purchased the home. In the disclosure statement, the previous owners disclosed the existence of the lift station to Ms. Simpson.
“7. In August, 2005, [A.W.] and [C.W.] retained the Respondent to represent them in an action for the failure to disclose the existence of [a] lift station. [A.W.] and [C.W.,] and the Respondent entered into a written contingency fee agreement. The fee agreement provided that the Respondent would receive 25% of any amounts collected. Additionally, the fee agreement provided that the Respondent would receive additional fees based upon the hours of time he put into the case. Finally, the fee agreement stated that the Respondent would bill [A.W.] and [C.W.] in quarter hour increments.
“8. On December 13, 2005, the Respondent filed suit against Ms. Simpson in behalf of [A.W.] and [C.W.]. Ms. Simpson was served with process and, on January 18, 2006, Ms. Simpson answered the Petition.
“9. Thereafter, on August 15, 2006, the Respondent took Ms. Simpson’s deposition. During her deposition, Ms. Simpson testified that she owned the home for approximately three years. She testified that she knew of the existence of the hit station, that she disclosed the existence of the lift station to her realtors, and that her realtors indicated that they would provide appropriate documentation regarding the repairs on the lift station to [A.W.] and [C.W.J’s realtor. During the three years that she owned the property, Ms. Simpson paid approximately $4,000 for repairs made to the lift station.
“10. Ms. Simpson’s realtors did not disclose the existence of the lift station to [A.W.] and [C.W.J’s realtors nor did Ms. Simpson’s realtors provide [A.W.J and [C.W.J’s realtor with a copy of the documentation relating to the repairs on the hit station.
“11. On February 22, 2006, the Court held a case management conference in [A.W.J and [C.W.J’s case. [A.W.J, the Respondent, Ms. Simpson, and her attorney, Kelly Egli appeared in person. The Court entered a case management order and thereby ordered the parties to file their witness and exhibit list by March 31, 2006, complete discovery by May 26, 2006, file all pretrial motions by June 9, 2006, and appear for pretrial motions hearing on July 14, 2006. Finally, the Court scheduled die trial for August 28, 2006.
“12. On July 13, 2006, because the parties had failed to comply with the Court’s case management order, the Court met with the Respondent and Ms. Egli. At that time, the Respondent announced that he wanted to add additional defendants to the action. The Court directed the Respondent to file an amended petition by July 21, 2006.
“13. On July 21, 2006, the Respondent filed a motion to amend the petition and an amended petition, adding Ms. Simpson’s realtors, Ms. Lesini and Steven Bloecher, and real estate company, American Eagle Realty, as defendants. The Respondent failed to provide Ms. Egli with a copy of the motion. While the Respondent obtained service on Ms. Lesini and American Eagle Realty, the Respondent did not achieve service on Mr. Bloecher.
“14. After approximately April, 2006, the Respondent failed to return [A.W.J and [C.W.J’s telephone calls. [A.W.J attempted to see the Respondent, but the Respondent refused to see him. Because the Respondent would not communicate with [A.W.J and [C.W.], they were unable to discover the status of their case.
“15. Thereafter, on May 9, 2007, the Court granted default judgment on Count One of the petition against American Eagle Realty and Ms. Lesini.
“16. On July 17, 2007, [A.W.] and [C.W.] filed a complaint with the Disciplinary Administrator’s office against the Respondent. Robert B. Van Cleave, an attorney, was appointed to investigate the complaint.
“17. On August 15, 2007, the Court entered a notice of dismissal for lack of prosecution. According to the notice, the Court would dismiss the case on October 9, 2007, unless the Respondent requested in writing that the case be taken off the dismissal docket.
“18. During the course of his investigation, Mr. Van Cleave discovered the Court’s August 15, 2007, notice. Mr. Van Cleave notified [A.W.] and [C.W.] that the Court would be dismissing their case on October 9, 2007, if the Court did not receive a written request that the case be taken off the dismissal docket.
“19. On October 8,2007, [A.W.] and [C.W.] provided the Court with a written request that their case be removed from the dismissal docket. In their request, [A.W.] and [C.W.] stated: ‘That plaintiffs need additional time to find their attorney to get the Journal Entry of Judgment filed or get someone else to prepare and file it.’
“20. On October 10, 2007, the Respondent provided the Court with a Journal Entry of Judgment by Default. The Respondent failed to provide Ms. Egli with a copy of the proposed Journal Entry of Judgment by Default. The Court entered the Journal Entiy.
“21. The Respondent took no action to preserve [A.W.] and [C.W.]’s action against Ms. Simpson and Mr. Bloecher. Neither [A.W.] nor [C.W.] authorized the Respondent to allow their actions against Ms. Simpson and Mr. Bloecher be dismissed.
“22. On October 12, 2007, the Court entered an order of dismissal for lack of prosecution in [A.W.] and [C.W.]’s case, as to Ms. Simpson and Mr. Bloecher.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.4 and Kan. Sup. Ct. R. 211(b), as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent [A.W.] and [C.W.] when he faded to provide thorough representation. The Respondent failed to provide thorough representation when he failed to exhaust reasonable means to achieve service of process on Mr. Bloecher. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. KRPC 1.2 provides:
“(a) A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. . . .
“(c) A lawyer may limit the objectives of the representation if the client consents after consultation.
The Respondent failed to act take appropriate action to achieve the objectives of the representation of [A.W.] and [C.W.]. The Respondent allowed the action against Ms. Simpson and Mr. Bloecher to be dismissed by the Court. The Respondent did not first obtain [A.W.] and [C.W.j’s consent before allowing the case to be dismissed as to Ms. Simpson and Mr. Bloecher. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.2.
“4. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to [A.W.] and [C.W.] when he failed to make reasonable attempts to obtain service on Mr. Bloecher. Mr. Bloecher is a businessman who works in the greater Kansas City area. The Respondent did not take reasonable steps to locate Mr. Bloecher and have Mr. Bloecher served with process. The Respondent also failed to provide diligent representation to [A.W.j and [C.W.j when he failed to file a Journal Entry of Judgment for five months after the Court entered judgment. The Respondent’s lack of diligence in this regard nearly cost [A.W.j and [C.W.j the judgment that the Court had previously entered. Finally, the Respondent failed to provide diligent representation to [A.W.j and [C.W.j by failing to properly prosecute their case against Ms. Simpson. Because the Respondent failed to act with reasonable diligence and promptness in representing [A.W.j and [C.W.j, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“5. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to properly communicate with [A.W.j and [C.W.j after April, 2006. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“6. An attorney violates KRPC 3.2 if he fails to malee reasonable efforts to expedite litigation consistent with the interests of his client. The Respondent failed to expedite [A.W.j and [C.W.j’s litigation. The Respondent’s failures caused the Court to issue a notice that die case would be dismissed unless the Respondent took action. The Respondent failed to respond to the Court’s notice within the prescribed time. If [A.W.j and [C.W.j had not responded to the Court’s notice, they would have lost the judgment against Ms. Lesini and American Eagle Realty that the Court had previously entered. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“7. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he failed to properly protect [A.W.j and [C.W.j’s cause of action against Ms. Simpson and Mr. Bloecher. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“8. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent’s failure to obtain service of process on Mr. Bloecher, despite the fact that the Respondent spoke to Mr. Bloecher by telephone while [A.W.] and [C.W.] were in the Respondent’s office, would lead a reasonable person to suspect the Respondent of wrongdoing. Accordingly, this conduct adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“9. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, tire Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation and reasonable communication. Additionally, the Respondent violated his duty to the legal system to expedite litigation. Finally, the Respondent violated his duty to the legal profession to cooperate in the disciplinary process.
“Mental State. The Respondent knowingly and intentionally violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to [A.W.] and [C.W.],
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been disciplined on a number of occasions:
“1. On May 23,1994, in B5807, the Disciplinary Administrator’s office informally admonished the Respondent for having violated KRPC 1.3 and KRPC 1.4.
“2. On February 26, 1996, the Disciphnary Administrator’s office informally admonished the Respondent for having violated KRPC 1.3, KRPC 1.4, and KRPC 1.7.
“3. On December 11, 1998, the Kansas Supreme Court placed the Respondent on probation for two years for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.1, KRPC 3.2, KRPC 3.3, KRPC 4.1, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. In those cases, the Respondent failed to diligently file a journal entry, the Respondent failed to provide a client with a copy of a proposed Journal Entry, the Respondent failed to return telephone calls, and the Respondent failed to cooperate in disciphnary investigations. The Respondent remained on probation until December 10, 2000. See In re Lober, 266 Kan. 404, 969 P.2d 885 (1998).
“4. On June 21, 2000, in DA7352, the Disciphnary Administrator’s office informally admonished the Respondent for having violated KRPC 1.16.
“5. Also on June 21, 2000, in DA7394, the Disciphnary Administrator’s office informally admonished the Respondent for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 1.16.
“6. On October 31, 2003, the Kansas Supreme Court suspended the Respondent from the practice of law for a period of one year for having violated KRPC 1.4, KRPC 8.1(b), and Kan. Sup. Ct. R. 207(b). See In re Lober, 276 Kan. 633, 78 P.3d 442 (2003).
“Dishonest or Selfish Motive. Because the Respondent failed to participate in the disciphnary proceedings it is impossible to know whether the Respondent has a legitimate explanation for his conduct in this case. However, the Hearing Panel is called upon to make its conclusions based upon clear and convincing evidence, not speculation as to what the Respondent would say if he had properly participated. The clear and convincing evidence before the Hearing Panel is that the Respondent was not honest with [A.W.] and [C.W.], The Respondent’s failure to properly obtain service on an individual with whom he had regular contact malees no sense. Thus, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness.
“A Pattern of Misconduct. The misconduct in his case is similar to the misconduct in the Respondent’s previous disciphnary cases. Accordingly, the Hearing Panel concludes that over the past 14 years, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciphnary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to provide written responses to the complaint filed by [A.W.] and [C.W.]. The Respondent never filed the response. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding.
“Vulnerability of Victim. [A.W.] and [C.W.] were vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1979. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 26 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Indifference to Making Restitution. To date, the Respondent has made no effort to make restitution to [A.W.] and [C.W.] for their loss.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Disbarment is generally appropriate when ... a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client.’ Standard 4.41.
‘Disbarment is generally appropriate when a lawyer:
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.1.”
In addition to failing to file a written answer to the formal complaint and to appear at the hearing, Respondent also failed to file exceptions to this final hearing report.
Attorney misconduct must be established by clear and convincing evidence. See Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313) (misconduct to be established by clear and convincing evidence). Clear and convincing evidence is “evidence that causes the factfinder to believe that ‘the truth of the facts asserted is highly probable.’ ” In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 (2008) (quoting In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 [2008]). The record before the hearing panel supports its findings of fact and those findings support its conclusions of law. Accordingly, we would typically adopt the panel’s findings of fact and conclusions of law.
However, on January 26, 2009, 2 days before scheduled arguments before this court, Respondent filed a motion for continuance claiming that he had not been served properly and was therefore officially unaware of the scheduled arguments. He further alleged he had not received notice of the formal complaint, of the panel hearing, or of the final hearing report. In the motion, Respondent requested the “opportunity to respond to, either admit or deny, and offer mitigation and extenuation to any allegations admitted or established as a fact before this Court.”
Respondent explained that his address changed several times in 2008. He left Kansas in May 2008 and stayed with relatives and in hotels in Washington and Florida in the summer of 2008. He further explained that by August 2008, he “was receiving mail at not less than five addresses being the home of the Seattle, Washington relative, a post office box in Seattle, Washington, the street address of the Seattle, Washington duplex apartment, the respondent’s former home and former law office addresses in Kansas.” He also alleged that his landlord’s son had been stealing his mail.
According to Respondent’s motion, in December 2008, he moved to Denver, Colorado, and “was alerted to the pending matter as a result of a phone call from a Kansas attorney who noticed Respondent’s name on the Supreme Court docket.” He contacted a Kansas attorney, John Fields, seeking representation. Fields declined to represent Respondent, but did request copies of the complaint and other documents from the Disciplinary Administrator’s office. Fields mailed these documents to Respondent, but the documents were allegedly sent to Respondent’s Seattle post office box, and he did not receive them.
Respondent claimed that “at all times from before and after May 2008, and until the present,” he has maintained a Kansas mailing address —on Hillside Rd, Leavenworth, Kansas — and members of his immediate family continue to reside at that address. He did not, however, receive any mail regarding this matter at that address. Respondent claimed that he “has registered with the Clerk of the Kansas Supreme Court using the address on Hillside Road, Leavenworth, Kansas and has used this address as his residential address in registering with the Kansas Supreme Court for the past twenty years.”
Finally, he represented that he would “not object to an action which would suspend indefinitely the law license of Respondent.”
The Disciplinary Administrator filed his response on January 27, 2009, objecting to Respondent’s request for a continuance. He pointed out that on the 2008 attorney registration form filled out by Respondent and given to the Clerk of the Appellate Courts in May 2008, the Hillside address was stricken and a hand-written note ordered “use office address.” The office address listed was on 2300 South 4th Street, Leavenworth, Kansas. The Disciplinary Administrator emphasized that notices of the proceedings were dutifully mailed to this address that Respondent listed with the Clerk in compliance with Supreme Court Rule 215 (2008 Kan. Ct. R. Annot. 339), which requires the Administrator to serve a respondent via personal service or certified mail “to the address shown on the attorney’s most recent registration, or at his or her last known office address.”
The Disciplinary Administrator further pointed out that a certified mail receipt in the record showed that the formal complaint against Respondent was received and signed for by an individual at the Respondent’s given address on May 15, 2008. As evidence of the Respondent’s awareness of the allegations against him, the Disciplinary Administrator also referred to Respondent’s letter in the record responding to the letter of the attorney assigned to investigate him. Further, he argued that Respondent admitted to having had actual notice of the scheduled proceedings since December 2008.
We can conclude that Respondent obviously had notice of the proceedings sufficient to file a motion with this court the week arguments were scheduled. He also admitted that he had been aware of the scheduling of the arguments since December.
We cannot conclude, however, that Respondent received official notice of the formal complaint, the panel hearing, the panel’s final report, or oral arguments before this court. Nevertheless, it is clearly his responsibility to notify the Clerk of the Appellate Courts of his current address. See Supreme Court Rule 208(c) (2008 Kan. Ct. R. Annot. 307) (“Every registrant shall within thirty days after any change of address notify tie Clerk of such change.”). This he failed to do, leading to many of his problems. We also believe he bears some independent responsibility for monitoring the status of allegations that he knew were being made against him by clients and that he knew were being investigated by an attorney assigned by the Disciplinary Administrator s office. This he also wholly failed to do.
The panel’s recommendation of disbarment was based in part upon its determination that Respondent had failed to file an answer to the formal complaint in violation of Supreme Court Rule 211(b). The recommendation is “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended.” Supreme Court Rule 212(f) (2008 Kan. Ct. R. Annot. 328-29). While Respondent objects to the “extreme sanction of disbarment,” he does not object to indefinite suspension. Under the circumstances of this case, we conclude that indefinite suspension is the appropriate sanction.
It Is Therefore Ordered that Respondent, Terence A. Lober, be indefinitely suspended in the state of Kansas, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 266) for violations of KRPC 1.1, 1.2, 1.3, 1.4(a), 3.2, and 8.4(d) and (g).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed against Respondent.
Davis, C.J., not participating.
Larson, S.J., assigned.
Edward Bouker, District Judge, assigned.
“According to [A.W.J and [C.W.], Ms. Lesini and Mr. Bloecher were married, became estranged, and then divorced. Mr. and Mrs. [W.J had a difficult time understanding why the Respondent was unable to achieve service on Mr. Bloecher, because on a number of occasions, while [A.W.J and [C.W.] were in the Respondent’s office, the Respondent was conversing with Mr. Bloecher on the telephone.”
“According to the judge’s notes, default judgment was also entered against Mr. Bloecher. However, the Respondent failed to obtain service on Mr. Bloecher. Later, when the journal entry of judgment was filed, it included only American Eagle Realty and Ms. Lesini.”
“Following the one year suspension, on March 11,2005, the Kansas Supreme Court reinstated the Respondent’s hcense to practice law in the State of Kansas.”
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The opinion of the court was delivered by
Beier, J.:
Defendant Alan Salts appeals his conviction of indecent liberties with a child, claiming that the district court committed reversible error when it gave an Allen-type instruction to jurors before deliberations began.
K.D., a 15-year-old foster child, ran away from home after she was caught smoking in a bathroom at work. Deciding that she would walk ,to her boyfriend’s house, K.D. hitched a ride to QuikTrip to look at a map. Salts approached K.D. while she was reviewing the map.
Salts informed K.D. that her boyfriend’s home was too far away to walk and invited K.D. to stay at his house until morning. K.D. agreed, even though she did not know Salts, and the two walked to Salts’ home. On the way, Salts stopped to purchase alcohol. As K.D. entered Salts’ home, A.L., a 15-year-old girl who once lived with Salts’ family, approached and entered the home. Salts mixed drinks and K.D. became intoxicated. A.L. drank little and remained sober.
K.D. started feeling sick and went upstairs to he down. Salts followed, sat down next to K.D. on the bed, and fondled K.D. A.L., realizing Salts was no longer in the living room, went upstairs and found Salts lying on the bed next to K.D. A.L. testified that she observed Salts’ hand move away from K.D. as she entered the room. A.L. attempted to get K.D. up, but K.D. refused to move. A.L. then went downstairs and unsuccessfully attempted to call several friends for a ride.
A.L. eventually went back upstairs, where she observed Salts’ hand on K.D.’s buttocks and legs. A.L. again tried to get K.D. up, but Salts grabbed A.L.’s arm, stating, “[K.D.] doesn’t need to get up, she doesn’t need to move[.]” K.D. then agreed to leave and the girls went outside.
Outside, K.D. vomited. Salts stopped the girls and demanded that K.D. go back inside to he down. K.D. went inside and lay down. A.L. called the police.
The State charged Salts with indecent liberties with a child and furnishing an alcoholic beverage to a minor for illicit purposes.
At trial, the following jury instructions were provided orally and in writing before deliberations began without objection.
“Instruction 11
“Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.”
“Instruction 12
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge(s) to a different jury at a later time. Another trial would be a burden on both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and taire all the time you feel necessary.” (Emphasis added.)
The jury convicted Salts of indecent liberties with a child but found Salts not guilty of furnishing alcoholic beverages to a minor for illicit purposes. The district judge sentenced Salts to life imprisonment without the possibility of parole.
Salts died on September 12, 2007, 12 days after his notice of appeal was filed. Salts’ death, however, does not render this direct appeal moot. See State v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990).
Salts’ single issue on appeal challenges the language “[a]nother trial would be a burden on both sides,” found in Jury Instruction 12, an Allen-type instruction. See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Salts argues that this language is misleading and inaccurate because another trial is not a burden to either party; rather it is the State’s obligation and Salts’ right. Salts further argues that this language is legally incorrect because, as noted in Jury Instruction 11, a jury should not consider what happens after trial. Finally, Salts argues that this language is prejudicial to him because it implicated jurors’ financial interests as taxpayers. Salts admits there was no objection to this instruction at trial.
The State contends that inclusion of the language is not error; it simply tells jurors to treat the matter seriously and keep an open mind. The State further argues that, even if this court determines inclusion of the language is error, it certainly is not clear error.
Our standard of review, in the absence of an objection before the district court, is whether the instruction was clearly erroneous, “that is, whether we are firmly convinced there is a real possibility the juiy would have rendered a different verdict if the error had not occurred.” State v. Carter, 284 Kan. 312, 330, 160 P.3d 457 (2007); see K.S.A. 22-3414(3).
PIK Crim. 3d 68.12 contains the language challenged in this case. “The use of PIK instructions, while not mandatory, is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.” State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006).
Other language in this instruction has been the source of some earlier controversy. See State v. Scott-Herring, 284 Kan. 172, 180, 159 P.3d 1028 (2007) (challenging “[the case] must be decided sometime”); Anthony, 282 Kan. at 215 (arguing phrase “ ‘[l]ike all cases, [this case] must be decided sometime’ . . . misled the jury and exerted undue pressure for a verdict”). However, our criticisms of other language found in PIK Crim. 3d 68.12 have never led to reversal of a conviction when the instruction was given before jury deliberations began. See State v. Nguyen, 285 Kan. 418, 436-37, 172 P.3d 1165 (2007) (“the instruction as given is inaccurate and misleading . . . [,nevertheless,] when the instruction accompanies all of the rest of the instructions given before deliberations, there is no error”); Carter, 284 Kan. at 330-31 (no error when PIK Crim. 3d 68.12 provided before deliberations with all jury instructions).
We arrive at the same place in the case at bar. Salts’ argument that the challenged language is misleading and inaccurate has merit. Contrary to this language, a second trial may be burdensome to some but not all on either side of a criminal case. Moreover, the language is confusing. It sends conflicting signals when read alongside Instruction 11 or a similar instruction that tells jurors not to concern themselves with what happens after they arrive at a verdict.
We therefore hold that including the language “[a]nother trial would be a burden on both sides” in PIK Crim. 3d 68.12 is error. The PIK Committee should strike this language from this instruction. If the Committee believes that the message the State wishes to deliver — that jurors should treat the matter seriously and keep an open mind—should be communicated to criminal juries, then the pattern instruction should be changed to state exactly that.
In Salts’ case, given the clearly erroneous standard of review, the error is not reversible. This court is firmly convinced that there was no real possibility the jury would have rendered a different verdict if the error had not occurred. We thus affirm Salts’ conviction of indecent liberties with a child.
Affirmed.
McFarland, C.J., not participating.
Standridge, J., assigned.
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Rees, J.:
On January 3, 1977, respondent Kansas Turnpike Authority (KTA) filed with the clerk of the Wyandotte County District Court a written appeal seeking to set aside the order of the Kansas Commission on Civil Rights (KCCR) entered against the KTA as the product of a complaint filed by James I. Jones. The KCCR had found the KTA guilty of unlawful employment practice (K.S.A. 44-1009[a][l] [Weeks]), and the KTA was ordered to cease and desist, to take affirmative action (K.S.A. 44-1005 [Weeks]), and to pay to Jones compensatory damages for back pay, pain, suffering and humiliation, and punitive damages. Service of written notice of the appeal, together with copy of the appeal, was promptly and duly made upon Jones and the KCCR.
The parties agree the matter lay dormant in the district court for some two years. In obvious reaction to the absence of action by the parties, the district court contacted counsel for the parties. The court’s communication is not included in the record; Jones and the KCCR describe it as a notice of intended dismissal because of inactivity; KTA describes it as a request for a report on the status of the case. The result was a motion for default judgment filed by the KTA on February 20, 1979. The KTA claimed entitlement to a default judgment because no answer or other pleading had been filed by Jones and the evidence presented to the KCCR, together with its findings and order, had not been certified by the KCCR to the district court as required by the second paragraph of K.S.A. 44-1011. On March 8, 1979, the KCCR filed with the district court the certified materials.
The record contains docket entries reflecting that on April 6, 1979, the default judgment motion was heard and the district court decision was that it be overruled, but no journal entry memorializing this action was prepared and filed.
Later the proceeding was set for trial September 28, 1979. While no record was made that day, the record on appeal and the representations made to us by the parties reveal the sole action that took place was argument on the default judgment motion, followed by announcement by the trial judge that he was taking the question under advisement with leave granted to the parties to file briefs.
Ultimately the trial judge sustained the motion and entered a default judgment setting aside the KCCR order. Jones and the KCCR have appealed.
The pertinent parts of the default judgment journal entry are:
“7. That K.S.A. 44-1011 is silent as to any . . . answer time, but only states in the following excerpt:
“ ‘The evidence presented to the commission, together with its findings and the order issued thereon, shall be certified by the commission as its return.’
“8. That absent statutory provisions regulating the time frame in which to answer, plead or otherwise file ‘its return,’ this Court must consider what is a reasonable time to do what K.S.A. 44-1011 required the Commission to do as ‘its return.’
“9. That this Court finds that a lapse in time of over two years between Notice and Service of Appeal and the compliance with the statutory duty required of the Commission relative to the filing of its record with the Court Clerk to be unreasonable.
“10. That the Court therefore sustains and grants plaintiff’s Motion for Default Judgment on the sole ground set out above and enters Judgment for plaintiff, setting aside in whole all findings, conclusions, and orders issued by the Kansas Commission on Civil Rights against this plaintiff relative to the complaint of James I. Jones . . . .”
While the appeal filed by the KTA contains as its caption “Kansas Turnpike Authority, Plaintiff, vs. James I. Jones and Kansas Commission on Civil Rights, Defendants,” the proceed ing commenced in the district court was not an original civil action. It was not an original action as might be brought by a prevailing party under the first paragraph of K.S.A. 44-1011. It was a proceeding for judicial review brought under the second paragraph of K.S.A. 44-1011. It was an appeal from a decision and order of the KCCR that concerned a claimant, Jones, and a respondent, the KTA. The KCCR is and was made a party to the judicial review proceeding by virtue of the fifth paragraph of K.S.A. 44-1011 which provides, “The commission shall be deemed a party to the review of any order by the court.”
In its brief, the KTA views and treats itself as a plaintiff, Jones and the KCCR as defendants, and the written appeal as a petition. It likens the proceeding to an original action requiring responsive pleading by Jones and the KCCR. Finding no statutory requirement for responsive pleading by way of an answer, it seizes upon the requirement that the KCCR certify to the district court the evidence presented to it together with its finding and order “as its return.” Thus its position, and the tact taken by the district court, is that the KCCR certification of its record to the district court, not having been accomplished until twenty-six months after the filing of the appeal, was “out of time” and, under or by analogy to K.S.A. 60-255, default judgment was and is proper. We disagree.
Default judgments are frowned upon. It is said a default judgment becomes necessary only when the inaction of a party frustrates the orderly administration of justice; their value lies in deterrence of the use of delay as a trial strategy. See Montez v. Tonkawa Village Apartments, 215 Kan. 59, 62, 523 P.2d 351 (1974); Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 116, 519 P.2d 730 (1974). It is not and cannot be shown or claimed the inaction in the district court was in any way attributable to tardiness of the KCCR certification. It was the KTA which took the appeal to the district court. Despite the direction of the third paragraph of K.S.A. 44-1011 that an appeal be heard and determined as expeditiously as possible, the KTA did nothing for two years. It was the KTA who was threatened by the district court with dismissal for inaction. Yet it was the KTA who sought and obtained a default judgment. We are satisfied the salutary purpose of default judgments was not served and it is our conclusion the district court abused its discretion and erred in its decision. The circumstances in this case are not such that the KTA was prejudiced or that the orderly administration of justice was frustrated by the KCCR. If that were so, our conclusion might be different.
A final comment is required. As noted, the district court looked to and the KTA emphasizes the words “as its return” within the statutory requirement of the second paragraph of K.S.A. 44-1011 that “[tjhe evidence presented to the commission, together with its findings and the order issued thereon, shall be certified by the commission to [the] district court as its return.” Why those three words were inserted in the sentence presently escapes us. Even so, and for two reasons, we are convinced too much is made of them. First, we are unable to attribute to the word “return” a definition or meaning approaching that of an “answer,” that is, a statement of admission and denial of allegations and assertion of defenses. Indictments are returned. Sheriffs file returns reporting service or nonservice of legal process. Taxpayers file returns. Rut we are unaware of any common usage of the word “return” that approaches the equivalent of an answer to allegations. Second, to construe the word “return” as equivalent to an answer is not consonant with the proceeding involved, judicial review of KCCR action. We find the requirement for KCCR certification of its record to the district court akin to the requirement of K.S.A. 66-118d that the Kansas Corporation Commission deliver a certified transcript of its record to the reviewing court when an appeal is taken and to the requirement of K.S.A. 44-552 that the Workers’ Compensation Director transfer to the reviewing court the original or a certified copy of the transcript of a worker’s compensation proceeding in the event of an appeal.
The default judgment in favor of the KTA is reversed and the case is remanded to the district court for further proceedings.
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Foth, C.J.:
This is a “dual option” case in which a tenant sought specific performance of a fixed price option to purchase contained in a lease. The trial court held the fixed price option to have been lost before its exercise by plaintiff’s failure to exercise its right of first refusal, or preemptive right, under the same lease. The plaintiff tenant appeals. We affirm.
The plaintiff, M & M Oil Company, Inc., is the tenant of property at 47th Street and Rainbow Boulevard in Westwood which it operates as an automobile service station. The defendants Juliette M. Finch and Susan R. and Dwight Wiggins own the real estate and are the landlords under the lease. Defendants also own an adjoining parcel which they rent to other tenants for use as a garage. This second parcel also figures prominently in the case and is known as the European Motors property.
The lease was originally made by defendants’ predecessors to Phillips Petroleum Company commencing December 1, 1953. It ran for fifteen years with three five-year renewals, or until December 1, 1983. The rent throughout the thirty years was $125.00 per month. Phillips assigned its tenancy interest to M & M effective December 1, 1973, and plaintiff has been in possession through valid renewals ever since.
The lease terms underlying this controversy appear in paragraphs 11 and 13, which provide:
“11. Lessee shall have an option to purchase said leased premises and property free and clear of all liens and encumbrances, at any time during the term of this lease, or any extension or renewal thereof, for the sum of $25,000.00, provided that Lessee shall notify Lessor in writing of its intention to so purchase said premises at least thirty (30) days prior to the expiration of this lease, or any extension or renewal thereof. In the event Lessee shall elect to purchase said premises and property, Lessor shall furnish to Lessee for examination a complete abstract of title, certified to date, compiled by a reputable abstractor, or title insurance policy at the option of Lessee, showing merchantable title to said premises in Lessor, and a reasonable time shall be allowed for examination of title by Lessee and correction of defects, if any, in said title by Lessor.”
“13. If the Lessor or the Lessor’s successors or assigns at any time during the term of this lease or any renewal or extension thereof received a bona fide offer to purchase all or any part of said premises, buildings, fixtures, equipment, machinery and appliances included in this lease, and desires to sell said premises, buildings, fixtures, equipment, machinery and appliances under the terms of said offer, Lessor agrees to give Lessee thirty (30) days’ notice in writing of such bona fide offer setting forth the name and address of the proposed purchaser who has made the offer, the amount of the proposed purchase price and the terms of payment thereof. The Lessee shall have first option to purchase the demised premises within the above-mentioned thirty-day period at the same price and on the same terms of any such proposal. In the event that Lessee does not exercise its option to purchase the demised premises within the aforesaid period, and said premises for any reason are not sold pursuant to the bona fide offer set forth in the notice, then Lessee shall have, upon the same conditions of notice, the continuing first option to purchase the said premises upon the terms of any subsequent bona fide offer or offers to purchase. Provided, nothing herein contained shall be construed as making this lease subject to cancellation in whole or in part in the event of sale.”
It will be observed there is no provision in either paragraph giving one precedence over the other. The closest to such a provision is the language of paragraph 13 to the effect that if the tenant fails to exercise its preemptive right and the proposed sale to the third party for any reason falls through, the preemptive right continues. There is nothing to say the fixed option continues.
The case was submitted on stipulated facts and exhibits. On May 21, 1979, defendants received an offer from the City of Westwood to buy both the M & M property and the adjacent European Motors property. The offer was a “package deal” of $90,000.00, broken down by the city into $60,000.00 for the M & M property and $30,000.00 for the European Motors property. There is no evidence that the offer was solicited by defendants, that it was not bona fide, or that the allocation of the purchase price between the two parcels was dictated by anything other than the city’s business judgment.
On May 22,1979, counsel for Mrs. Finch transmitted to M & M the terms of the city’s offer, including the fact that it was contingent upon the simultaneous purchase of the European Motors property. The transmittal letter to M & M referred to the preemptive right provisions of paragraph 13 of the lease and gave M & M the first right to purchase the leased premises for $60,000.00 by acceptance within thirty days.
M & M responded through counsel on June 7, 1979. The thrust of the response was M & M’s intention to rely at some time in the future on its claimed continuing right to exercise the fixed price option under paragraph 11.
From June through July there was a series of letters between counsel. These reveal (1) Mrs. Finch unequivocally accepted the city’s offer, and (2) while M & M’s position was equivocal, it clearly had not exercised either its right of first refusal or its fixed price option.
Thereafter negotiations between defendants and the city proceeded. In November the city passed two ordinances, one authorizing the purchase of the M & M property for $60,000.00, the other the European Motors property for $40,000.00 How the latter price increase came about does not appear but in any event, on the advice of the city’s counsel, neither ordinance was published or took effect.
The next step was the institution of condemnation proceedings by the city against both parcels on January 16, 1980.
On January 28, 1980, M & M wrote a letter to defendants purporting to exercise its fixed price option. Defendants’ response, through counsel, was to advise M & M that they had sold the property to the city by contract dated February 12, 1980, for $60,000.00, and that defendants considered M & M’s rights had been lost by its failure to exercise its preemptive right within 30 days of the notice of the previous May.
M & M thereafter instituted this action to enforce the fixed price option. The trial court agreed with defendants’ view of the consequences of M & M’s failure to act and denied relief. M & M appeals.
As a secondary but preliminary matter M & M argues that the offer from the city did not trigger the first refusal clause at all because (a) it was conditional on the sale of the European Motors tract and (b) defendants were not prepared to sell on the city’s terms, as was evidenced by the ultimate sale whereby the European Motors tract brought $40,000.00 instead of the $30,000.00 first offered.
It is true the offer from the city was a combined offer. However, the notice to M & M, while disclosing the full details of the city’s offer, was an unconditional offer to sell to M & M for $60,000.00; there was no suggestion in the notice that in order to exercise its preemptive right M & M would have to buy the European Motors property. In M & M’s response to the May, 1979, notice of the city’s offer, M & M didn’t complain of any contingency but simply asserted its belief in the continuance of the fixed price option. In any event, Mrs. Finch was clearly prepared to accept the city’s combined offer, as was demonstrated by a letter from her attorney to the city attorney. The fact that the European Motors property involved eventually fetched a little more does not detract from the bona fides of the offer for this property which was transmitted to M & M pursuant to the lease. M & M could have bought the property for $60,000.00; it declined to do so, and the property was eventually sold to the city for $60,000.00. In our view the trial court correctly disregarded the fate of the other property.
The primary question raised by M & M is whether its failure to match the city’s offer extinguished its fixed price option. On this issue M & M makes two arguments: that the first refusal clause was only to be operative if the third party offer was for less than the fixed price option; and that in any event the fixed price option continued in effect.
On the first argument M & M relies heavily on Butler v. Richardson, 74 R. I. 344, 60 A.2d 718 (1948). That case involved a one year lease of a residence with an option to buy at any time during the year on ten days’ notice for $15,000.00. If the option were exercised, the purchaser was to get credit for all rent paid and to assume taxes and insurance as of the beginning of the lease. It also contained a right of first refusal. The court construed the agreement as one designed to give the tenants a year in which to decide whether to purchase the house. The sellers received an offer from a third party, but whether lesser or greater than the option price does not appear. The sellers merely notified the buyers that they had an offer and that buyers had ten days to exercise their option. The buyers responded by exercising the option without even inquiring what the terms of the third-party offer were. Under these circumstances the court held that the fixed price option was properly enforced. The right of first refusal was regarded as a mere supplement, designed to accelerate the buyers’ decision in the event the sellers received a lesser offer which they were willing to accept. However, since the notice to the buyers did not convey the terms of the third party offer, the court held the first refusal clause was never properly invoked in the first place, so the unequivocal exercise of the fixed price option was effective.
Under the facts of Butler the construction given the first refusal clause was mere dictum. Beyond that, we have found no case which fully followed the Butler court’s reasoning on this issue, although several have considered it. In Sinclair Refining Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185 (1949), the court agreed that a first refusal clause “is not to be given precedence over or even equal dignity” with a fixed option, but specifically declined to follow Butler’s reasoning that the first refusal clause applied only to third party offers below the option price. There the option had been exercised before the third party offer was secured, and the court held that the parties’ rights were thereupon fixed and controlled by the fixed option.
Northwest Racing Association v. Hunt, 20 Ill. App. 2d 393, 156 N.E.2d 285 (1959), departs even further. After noting the constructions adopted in Butler and Allbritton, the court impliedly rejected both by holding that once a valid right of first refusal was tendered and rejected, the fixed option lapsed. In so holding the court relied on Shell Oil Co. v. Blumberg, 154 F.2d 251 (5th Cir. 1946), where the same result was reached under similar lease provisions.
Cases dealing with dual options recognize that the terms of the particular clauses control. The parties may specifically provide which clause takes precedence and for either the continuance or extinguishment of a fixed price option where a right of first refusal is declined. E.g., Shell Oil Company v. Prescott, 398 F.2d 592, 593 (6th Cir. 1968); Green v. Sprague Ranches, 170 Cal. App. 2d 687, 339 P.2d 607 (1959). The difficulty arises where, as here, each clause is complete in itself and neither makes reference to the other. In such a case the general rule, which we adopt, is that set out in Tarrant v. Self, ___Ind. App. ___, ___, 387 N.E.2d 1349, 1353 (1979):
“Where both a fixed-price purchase option and an option giving the lessee the right of first refusal are contained in a lease the parties must specifically designate which one takes precedence over the other. Where, as here, the lease does not prescribe which provision takes precedence over the other, if, before the lessee exercises his option to purchase at a fixed amount or before such option comes into existence, whichever is later, the lessor properly notifies the lessee of a bona fide offer to purchase the leased premises, and the lessee refuses to exercise his option to purchase the property under the terms of such offer, then the lessee forfeits his right to purchase under the fixed-price option. See Shell Oil Co., Inc. v. Blumberg, (5th Cir. 1946) 154 F.2d 251; Adams v. Helburn, (1923) 198 Ky. 546, 249 S.W. 543; Northwest Racing Ass'n v. Hunt, (1959) 20 Ill. App. 2d 393, 156 N.E.2d 285; Shell Oil Co. v. Jolley, (1972) 130 Vt. 482, 296 A.2d 236; and Annotation, 8 A.L.R.2d 604.”
Tarrant, we note, dealt with a Phillips Petroleum Company lease of a vintage close to the one at bar. See also Bobali Corp. v. Tamapa Co., 235 Pa. Super. 1, 340 A.2d 485 (1975); Texaco, Inc. v. Rogow, 150 Conn. 401, 190 A.2d 48 (1963).
M & M makes one other argument for giving the fixed option precedence over the first refusal clause, and that is the fact that in paragraph 11, which is otherwise printed, the option price of $25,000.00 was typed in, whereas the first refusal clause in paragraph 13 is wholly printed. It relies on the familiar rule that where there is a conflict between printed provisions and those which are typed or handwritten into a printed form the latter will generally control as more likely reflecting the parties’ negotiated and specific intent. The trouble with applying that rule here is that there is no conflict in or question about the fixed option price, but only the mechanics of the two options. The provisions which need to be construed are all printed, and the rule giving preference to language manually inserted in a printed form has no applicability.
In summary, we agree with the trial court that when defendants gave plaintiff notice of the city’s bona fide offer and an opportunity to buy at the city’s price plaintiff lost any right to exercise its fixed price option. It was required to exercise its right of first refusal if it wished to purchase the property, and its failure to do so left defendants free to accept the city’s offer.
Affirmed.
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Meyer, J.:
This is an action for damages resulting from an alleged wrongful midyear termination of appellant’s teaching contract.
Ross Crane (appellant) was employed by Unified School District No. 273 as a vocational agriculture instructor and F.F.A. advisor, pursuant to a written contract, dated August 14,1979, for a period of eleven months; appellant was a nontenured teacher.
Appellee school board (board) held a special meeting on November 5, 1979, and by resolution, the board terminated appellant’s contract based upon the six specified reasons below described, to-wit:
(a) In disciplining a ninth grader in class, appellant turned suddenly and flipped the student in his desk chair over backwards onto a tiled floor, hurting the student’s shoulder.
(b) Prior to class taking up, appellant disciplined a tenth grade student who was on crutches by kicking him in the foot with such force that it caused him to lose his balance.
(c) Appellant lost his temper in a classroom and hit an eleventh grade student in the chest with his fist, causing pain and bruising, knowing at the time that the student had a heart condition.
(d) As a result of appellant’s discharging a 12-gauge shotgun at his home on Halloween (October 31, 1979), two students of the involved school district were struck by shotgun pellets, one of which said pellets had lodged in the base of the skull of one of the students. Appellant was charged in the District Court of Mitchell County, Kansas, with unlawfully, feloniously, and willfully applying force to a student at Beloit High School, with the intent to injure said student, which was done with a deadly weapon.
(e) As a result of the appellant’s inappropriate conduct, three students withdrew from his class and several others desired to withdraw.
(f) Acts coupled in (a) through (d) above caused loss of parent, student, teacher and school board respect for appellant, making it impossible for appellant to function effectively as a teacher of the involved school district.
By separate resolution at the special meeting on November 5, 1979, the board set a hearing for November 12, 1979, to decide whether said termination of employment was to be with or without pay.
On November 6, 1979, notice of the board’s decision to terminate appellant’s employment and notice of hearing to decide whether such termination was to be with or without pay, was mailed by certified mail. The notice of termination set forth the reasons for termination. It was received by appellant on November 7, 1979.
On November 12, 1979, the board held a hearing to determine if appellant’s contract should be terminated with or without pay, and the board then voted unanimously to terminate appellant’s contract without pay as of November 12, 1979. Although appellant received notice of this hearing, he did not appear.
On November 17, 1979, the board received a notice that appellant requested a due process hearing pursuant to the provisions of K.S.A. 72-5436 et seq. On November 21, 1979, the appellant and board advised each other of their respective hearing committee appointees. On January 2, 1980, the parties agreed to the setting of a prehearing conference on January 30,1980, and on that date a prehearing conference was held, at which time a hearing date of April 22, 1980, was agree upon.
A due process hearing was held on April 22, 1980, before a special three-person hearing committee. This committee delayed transmitting its findings of fact and recommendations on resolution of the issues to the board until such a time as both parties had submitted briefs to the committee. The board prepared its brief; appellant has never submitted his brief to the committee.
The hearing committee submitted its findings on May 8, 1981, and recommended actions to the board, even though appellant had never complied with the committee’s request for a brief. The majority of the hearing committee recommended an affirmance of the board’s decision to terminate appellant without pay as of November 12, 1979.
On December 17, 1980, prior to the hearing committee’s issuance of its recommendations, but some eight months after the hearing, appellant filed his petition in the Mitchell County District Court, praying for reinstatement, back salary and damages, under the theory that he was deprived of a property right without due process of law. On January 16, 1981, the board filed a motion to strike appellant’s petition; this motion was treated as a motion to dismiss by the judge.
On April 24, 1981, the district judge, Honorable Richard W. Wahl, after considering briefs submitted by the parties, dismissed the petition filed by the appellant. The court ruled as a matter of law that appellant could not file an action for alleged violation of his constitutional right to due process. The court held that the appellant, as a nontenured teacher, was entitled to no hearing at all (either before- or after-the-fact), unless the appellant claimed violation of a constitutionally-protected right. The court determined that appellant’s claim of wrongful termination was based upon his exercise of a constitutionally-protected right and should therefore have been pursued under K.S.A. 72-5446. The court held that because appellant did not pursue the action under K.S.A. 72-5446, the action could not be filed because appellant had failed to first exhaust his available administrative remedies. From this dismissal, appellant appeals.
Appellant’s major contention is that he was deprived of due process of law when his teaching contract was terminated in midyear because he was afforded no hearing prior to the making of the decision to terminate him.
The due process clause of the Fourteenth Amendment to the United States Constitution provides:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .”
The United States Supreme Court has interpreted this provision as protecting a wide variety of interests. In Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972), the high court stated:
“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests — property interests — may take many forms.” (p. 576)
K.S.A. 72-5438 mandates that a due process hearing be held before a final decision is made not to renew, or to immediately terminate, a teacher’s contract. However, K.S.A. 72-5445 expressly limits the applicability of 72-5438 to teachers with at least two years’ consecutive service with the same school district. As to a simple decision not to renew a nontenured teacher’s contract, made at the end of the school year, the courts have held that no hearing need be provided, neither before the decision not to renew, nor after it. This is because an untenured teacher has no property right in the renewal of his contract which would entitle him to any hearing. Gragg v. U.S.D. No. 287, 6 Kan. App. 2d 152, 627 P.2d 335 (1981).
On the other hand, a midyear termination of a nontenured teacher has been treated differently than an end-of-year decision not to renew. The decision of the Kansas Supreme Court in Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P.2d 339 (1975), makes it clear that a midyear termination of a teaching contract, even where a nontenured teacher is involved, does affect a constitutionally protected interest. The court held:
“The stigma which attaches to a mid-year dismissal of a nontenured teacher for incompetence is sufficiently injurious to call for a hearing and, even though a hearing is not afforded such teacher by state statute, constitutional requirements of due process operate to overcome the lack of statutory right. [Citation omitted.]” 218 Kan. at 29.
The Wertz decision also recognizes a property interest which is affected by the midyear termination of a nontenured teacher.
“A teacher who is dismissed without pay during the term of his contract has an interest in continued employment which is safeguarded by due process. (Wieman v. Updegraff, 344 U.S. 183, 97 L.Ed. 216, 73 S.Ct. 215 [1952].)” 218 Kan. at 29-30.
The Wertz decision therefore mandated that a nontenured teacher must generally be accorded a due process hearing prior to a midyear termination of his contract. Importantly, however, the court in its opinion also recognized that certain exceptional conditions may exist which would make an immediate termination necessary. In such cases, a due process hearing “after-the-fact” would be sufficient protection for the interests of the teacher. As stated by the court:
“Under extreme circumstances involving a serious disruption of the school educational processes it may be imperative that a teacher be relieved of teaching duties immediately but in fairness to a teacher a hearing should ordinarily be afforded before a decision to terminate without pay is made.” 218 Kan. at 31.
It appears that the board believed appellant’s immediate suspension from teaching was necessary. From the list of reasons given for appellant’s termination, it is hard to say that the board was wrong in its belief. Unlike the situation in the Wertz case, where the discipline problems occurring at the school were attributable more to certain students than to lack of discipline in Mr. Wertz’s class alone, here the record shows repeated incidents, both at and away from the school, of misconduct on appellant’s part. Also, the court in Wertz did not consider the troubles afflicting that school to be “of such a nature as to be considered a sudden serious disruption of the educational processes of the school.” 218 Kan. at 32. Here, the situation is different; appellant’s own conduct was the basis for the general loss of confidence in his abilities as an effective teacher. The conclusion that his immediate suspension from duty was required to avoid serious disruption of the school’s educational process appears reasonable to this court. For this reason, appellant was not, under the holding in Wertz, entitled to a due process hearing prior to receiving notice of termination of his duties.
There is a great difference, however, between a suspension from teaching duties pending the outcome of a due process hearing and the termination of pay under the contract without a due process hearing. The first is lawful in “extreme circumstances”; the second is a violation of constitutional rights in any setting.
Wertz is recognized by other courts as standing for the proposition that a teacher must be afforded a full due process hearing before an impartial tribunal prior to midyear termination of his pay. The extreme circumstances which allow for immediate suspension of teaching duties do not also allow for a suspension of pay without first according the teacher a full due process hearing. See Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. 895 (D. Kan. 1977).
With the notice of termination, appellant also received notification of a hearing on the issue of whether his termination would be with or without pay. This hearing was held a scant five days after appellant’s receipt of the notification, and the tribunal before which it was held was the school board, the very body that had voted to terminate appellant’s contract only one week earlier. This hearing is not of the type envisioned by the court in Wertz, nor does it measure up to the definition of a hearing before an impartial tribunal, as discussed in the Bogart, opinion.
“Due process requires the hearing to which plaintiff is entitled, be before an impartial tribunal. There are at least two component factors which must be considered in determining impartiality. First, the individual decision makers must not have exhibited bias as to the factual questions to be decided at hearing; and second, the hearing must occur before dismissal except in unusual circumstances. . . . [E]vidence of actual bias which offends due process consists of ‘statements on the merits by those who must make factual determinations on contested fact issues. . . .’ Staton v. Mayes, 552 F.2d 908, at page 914 (10th Cir. 1977).” Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. at 903-4.
The Bogart opinion also contains an excellent summation of the law of due process:
“[P]rocedural due process requires at least notice, a hearing, and a method of decision which does not offend the concept of fundamental fairness. The extent and nature of the hearing may vary from situation to situation, depending upon all of the facts and circumstances. Substantive due process requires the decision-maker to be presented with and to consider a minimal amount of credible evidence sufficient to support a legal basis for its ultimate action. Again, what constitutes sufficient evidence may vary from situation to situation, although it need be only enough to prevent the decision from being totally arbitrary and capricious. . . .” 432 F. Supp. at 905-6.
Appellant did not appear at the hearing held on November 12, 1979. Nothing in the record indicates that the board heard any evidence pertaining to appellant’s termination at that time; it appears that the board simply voted to terminate appellant, without pay, as of the date of that hearing. That hearing would not have satisfied the needs of due process even if appellant had appeared and defended because the board lacked the impartiality required by Bogart. Therefore, appellant did not waive his right to a due process hearing by his failure to attend.
This brings up the question whether appellant waived his constitutional right to due process when he requested and participated in a hearing before an admittedly impartial tribunal. Appellant appeared at this after-the-fact hearing and defended on the merits. Before the hearing committee had issued its findings and recommendations, though, appellant filed this independent action claiming that he had been denied due process in his termination. It appears that appellant also ceased to cooperate with the hearing committee at that time.
In the Wertz case the court ruled that Mr. Wertz did not waive his right to a due process hearing prior to termination when he refused to take part in an after-the-fact hearing which was offered to him. The situation here is only slightly different. Appellant had not been granted the impartial hearing to which he was entitled before his salary was terminated. He was offered an after-the-fact hearing. He accepted the offer and the hearing was conducted, all procedures being in substantial conformity with the Teachers’ Due Process Act. Because any minor departures from the prescriptions of the act were merely technical in nature and not prejudicial to appellant’s rights, he has waived objection to such matters of mere form by his appearing and defending at the hearing. Schulze v. Board of Education, 221 Kan. 351, Syl. ¶ 2, 559 P.2d 367 (1977).
The appellant’s petition did not attack the lawfulness of the procedure per se, but instead asserted that an after-the-fact hearing, however properly conducted, was no substitute for a full due process hearing before an impartial body prior to the termination of his pay. Appellant did not pursue this hearing procedure to a full conclusion. However, appellant’s claim of denial of due process would be meritorious even if he had not raised it until after the after-the-fact proceedings were concluded. He should have been paid from November 12, 1979, until the final decision of the board, based on the hearing committee’s report, was announced. That he asserted this right prior to conclusion of the after-the-fact proceedings is not a controlling factor.
This is not an appeal from the ruling of the board, because the board has never issued a final decision. What appellant asserts is that his pay was terminated before this final decision was reached. The issue of due process of law is not one which the board or hearing committee is empowered to address. It does not seem fair to hold that a teacher has waived his due process rights by partial adjudication before a tribunal lacking the authority to decide if those rights have been infringed. This case is similar to Wertz: appellant in the instant case refused to continue taking part in the after-the-fact proceedings after some involvement therein; given that these proceedings could not protect his due process rights, his partial involvement should not be treated any differently than Mr. Wertz’s total refusal to participate.
We conclude that appellant did not waive his right to a full due process hearing prior to termination of his pay by either his original participation in, or his subsequent withdrawal from, the after-the-fact proceedings, for the reason that these proceedings were not designed or empowered to address whether constitutional rights had been violated.
The final issue is whether the district court was correct in dismissing appellant’s petition. This dismissal was predicated on the trial court’s opinion that appellant had failed to exhaust his administrative remedies prior to filing his action in the district court.
The trial court stated that appellant’s remedy for violation of a constitutional right in his termination was under K.S.A. 72-5446. That section involves the procedure to be employed when a teacher asserts that his termination is due to his lawful exercise of a constitutionally-protected right; it does not speak to cases where the teacher merely claims that the procedure used to terminate his contract denied his constitutional right to due process. Appellant has never claimed that he was dismissed because of his exercise of constitutionally-protected rights, only that he was not accorded due process of law in the termination proceedings. For this reason, K.S.A. 72-5446 is not applicable in this case.
We conclude that the dismissal of appellant’s petition was unwarranted. Appellant’s due process rights had been violated; he had not been paid under his contract after November 12, 1979, even though no impartial hearing had then been granted to him. The action he filed was designed and intended to assert and protect his due process rights. Appellant was asserting a valid claim for damages resulting from a denial of due process. This claim could not be resolved by the hearing committee or the board; their only function was to determine whether adequate grounds existed to terminate appellant. Even if such grounds were found to exist, appellant was entitled to be paid until such time as a final decision to terminate was made, based upon the findings of the impartial tribunal. Appellant thus had no administrative remedy, and his petition should not have been dismissed on the incorrect notion that he had failed to exhaust his administrative remedies.
To summarize, under the circumstances, the board had the power to suspend appellant’s duties without a hearing. Appellant was, however, entitled to a full due process hearing before his salary was suspended; he was not granted one. The hearing at which it was decided to terminate appellant’s pay did not comply with due process of law. Appellant’s failure to attend this hearing should therefore not be considered a waiver of his due process rights. The after-the-fact hearing, though conducted properly under the law, was no substitute for a full due process hearing conducted prior to the termination of appellant’s pay; that pro ceeding was not able to protect appellant’s due process rights. Thus, appellant should not be held to have waived those rights by his limited involvement in that proceeding. The lawsuit filed by appellant asserted a valid claim for damages based on an unlawful deprivation of constitutional rights. Appellant had no administrative remedy available to redress his injuries. Therefore, the court improperly dismissed appellant’s petition.
We remand this case to the Mitchell County District Court with directions to reinstate appellant’s petition, to allow for responsive pleading by the board, to allow for pretrial discovery and other procedures, and to allow the case to come on for trial, where the court shall apply the law as reflected in the opinion of this court.
Reversed and remanded with directions.
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McLaughlin, J.:
This is a divorce action in which the defendant, Eula A. Cook, appeals from the district court’s approval of the property settlement agreement. At the time of the filing of the divorce action, the parties had been married approximately thirty years and had accumulated substantial real and personal property, most of which is related to their farming operations. The parties had two children who were both adults at the time of the divorce.
Pursuant to defendant’s motion and the resulting court order, plaintiff, Keith W. Cook, submitted a list of the parties’ property. This list itemized the parties’ assets but, with rare exception, did not recite the value of any. Because the parties could not initially reach a property settlement agreement, court-appointed appraisers were to commence appraising all the property May 20, 1980, the day of the divorce hearing. On May 19, 1980, however, the parties had a settlement agreement drafted which the defendant signed May 20. The agreement recites that it was drafted by an attorney who was employed by both parties with the knowledge of their respective counsel. The agreement divides the property primarily by reference to plaintiff’s property list, provides that the plaintiff assumes all the parties’ debts except defendant’s attorney fees for this action, and releases both parties from any alimony obligations.
On May 20, 1980, the parties appeared in court and made no objection to the case being heard by Judge Jack L. Burr, in the absence of Judge Keith Willoughby who had previously been involved in the case. At that hearing defendant’s counsel vigorously objected to the agreement on the grounds that it was inequitable and that defendant was coerced into signing it.
Plaintiff provided the court with the only evidence concerning the value of the assets. He testified that under the agreement he received approximately two million dollars in assets and assumed one million dollars of the parties’ debts, and that defendant received approximately $900,000 in assets and no debts except her attorney fees. Defendant testified she had received four telephone calls from the plaintiff and one from her own brother urging her to settle in order to avoid the costs of a property appraisal, and that she signed the agreement to keep peace in the family. The defendant and the court engaged in the following colloquy:
“THE COURT: Very well. Mrs. Cook, you realize that you don’t have to agree to this particular settlement, you understand that?
“MRS. COOK: There are several things that are involved now. My mother is very sick, Judge Burr, she’s going to die one of these times and if there can be peace to where — that’s all she asks for is peace, she says get it straightened out, if there can be peace, I want there to be peace.
“THE COURT: Well, there may be a lot of reasons behind why you wish to sign the agreement and why your husband wishes to sign the agreement, the thing is, I want you to make sure that you understand that you don’t have to sign it, you know that?
“MRS. COOK: Isn’t it already signed?
“THE COURT: Well, yes, but it would have to be approved by me, it has to be approved by this Court and the reason I’m asking you these questions is to decide whether or not I want to approve that property settlement.
“MRS. COOK: Okay.
“THE COURT: Now, you understand that you don’t have to sign — you did not have to sign that agreement?
“MRS. COOK: I understand that.
“THE COURT: Okay. And you understand that before the agreement actually becomes and takes full force and effect this Court has to approve it?
“MRS. COOK: So I am at your mercy, Your Honor.
“THE COURT: No, that’s the reason I’m asking you these questions, I want to make sure that you understand what you signed.
“MRS. COOK: Okay.
“THE COURT: And whether or not you did so voluntarily, okay?
“MRS. COOK: I thought that there were a few things that needed to be changed, but it seemed like this was the only way that there could be peace and so, I signed it.
“THE COURT: Did you feel that the only reason you signed it was because you felt like you were threatened or forced to sign it in any way?
“MRS. COOK: This is also affecting my children, it’s affecting our work, divorce affects everything.
“THE COURT: Well, you're interested in getting the case finalized yourself, I assume, aren’t you?
“MRS. COOK: If this is what it is going to take, I don’t believe in divorce, but if this is what it’s going to take.
“THE COURT: Mrs. Cook, you’ve been involved in the farming operation all during your marriage and have been involved in the accumulation of property and the buying and selling of livestock, in other words, you understand the operation, you’re familiar with it?
“MRS. COOK: Yes, I am, most familiar.
“THE COURT: Then my next question is, in the property settlement agreement there is a substantial list of property, real estate and personal property, livestock and various farm machinery and so forth, do you feel that you are familiar enough with the operation to be able to know whether or not that agreement covers all the property?
“MRS. COOK: As far — now like on the tools and machinery that he may have purchased, I wouldn’t have any knowledge as to that, but unless this has been changed from what was presented before, it appears to me to be a most complete copy.
“THE COURT: It covers the operation and the things that have been accumulated by the two of you during your marriage, is that correct?
“MRS. COOK: Yes, there are some other things that would be involved in this because there was nothing mentioned in the settlement with regard to the leased land and where ordinarily as a husband and wife team the tenant is entitled to two-thirds (%) of the growing crop and the landlord is entitled to a third (Vis), there’s been no allowance made in regard to that.
“THE COURT: Well now, is this property that is leased by you that is farmed by you and your husband or property that you lease out to someone else to farm?
“MRS. COOK: No, it is property that has been leased by us, the lease itself is held in my husband’s name. We’ve done business that way because it seemed reasonabler. (sp)
“THE COURT: And that is not included in any of the listings?
“MRS. COOK: No, not that I know of in this.
“THE COURT: Do you feel that it should be?
“MRS. COOK: I think there should be some allowance made for that through — because a major part of our income comes from that. I think if you will notice in some of the sales that have been made recently, I think there was a hundred and fifty-one thousand dollars ($151,000.00) worth of wheat. To me, that’s a lot of money, Judge Burr.
“THE COURT: Well now, Mrs. Cook, what you’re telling me, in effect, is that this agreement doesn’t cover everything, in your opinion?
“MRS. COOK: About the business of running the farm, no, it doesn’t. It may cover what we have actual ownership to, but it doesn’t cover lease land where there is income from lease lands.
“THE COURT: Well, I don’t want to get into a discussion about legally who is entitled to lease land, all I want to ask you is, are you satisfied with this property settlement agreement, do you want the divorce to be granted and this property settlement approved as it is now in front of you?
“MRS. COOK: With the exception of alimony, I would settle for this.
“THE COURT: Well now, if the property settlement agreement is approved, then there will be no alimony.
“MRS. COOK: Then otherwise may I ask you what choice I have, otherwise it will come up before the other Judge the 12th?
“THE COURT: You have a choice to continue on with the appraisal and have a hearing and the Court will make a decision.
“MRS. COOK: For the children’s sake, I think it would be better to do this then.
“THE COURT: Well, that’s what I’m asking you.
“MRS. COOK: Okay.
"THE COURT: Now, you don’t have to agree to that, I’m not asking you to agree to it one way or the other, I just want to make sure you understand that this property settlement agreement will dispose of the property in accordance with its terms and there won’t be another hearing to decide whether or nor [sic] there should be alimony and—
“MRS. COOK: (interrupting) This is final?
“THE COURT: This is it at this point if this agreement is approved, I want to make sure you understand that. Now, you’ve heard Mr. Oglevie’s comments that he will not approve it on your behalf. Whether or not you wish to go along with it, that’s what you have to tell me.
“MR. OGLEVIE: May it please the Court, I’d wish to reiterate and reincorpórate those remarks.
“THE COURT: It’s on the record and Mrs. Cook, I’m sure, is aware of your opinion, Mr. Oglevie, but I simply want to satisfy myself at this point.
“MRS. COOK: I can live with this, I think, Judge Burr, it may not be good, but I can live with it.
“THE COURT: Well, I’m sorry, but I’m simply going to ask you at this time, are you asking me, as the Judge hearing this case, to approve this property settlement agreement today?
“MRS. COOK: Yes, I will.”
The court, in approving the settlement agreement, found the defendant was competent and knew the nature and extent of the property involved, and also found the agreement was not brought about through duress or coercion. Defendant’s motion for a new trial because of the alleged duress was denied.
The defendant contends on appeal that the property list submitted by plaintiff did not comply with Supreme Court Rule No. 164 (225 Kan. lxxi) because it did not state the values of the assets, and further contends that noncompliance with the rule deprived the district court of jurisdiction over the case. Whether failure to strictly comply with Rule No. 164 requires a new trial has not been decided by Kansas courts. Defendant argues that the phrase “a written inventory and fact sheet or sheets shall be prepared by counsel and furnished to the court . . . .” (emphasis supplied), mandates compliance by counsel and the court. A more reasonable interpretation of the phrase is that compliance by counsel is mandated, subject to the court’s discretionary waiver. There is no mention of jurisdiction in the rule.
The defendant also asserts on appeal that the district court abused its discretion in finding the settlement agreement valid, just and equitable under K.S.A. 1980 Supp. 60-1610(e) in that the settlement was brought about through duress and because plaintiff’s testimony was the only evidence concerning property valuation. We agree in part.
K.S.A. 1980 Supp. 60-1610(e) provides that property settlement agreements which the court finds to be valid, just and equitable shall be incorporated into the divorce decree. Settlement agreements have always been subject to scrutiny of the court to prevent fraud and oppression or unfair advantage, and this scrutiny is in accord with recognized principles to assure the agreement is valid, just and equitable. In re Estate of Sweeney, 210 Kan. 216, 223, 500 P.2d 56 (1972). Although the court may not need detailed evidence of the parties’ financial worth when dividing their property according to their agreement, Tager v. Tager, 199 Kan. 26, 32, 427 P.2d 484 (1967), mere agreement by the parties does not vitiate the court’s duty to scrutinize the settlement agreement, and if the agreement is not valid, just and equitable, the court should reject or alter it. Lewis v. Lewis, 4 Kan. App. 2d 165, 603 P.2d 650 (1979).
The defendant has alleged she was under great pressure by the plaintiff and other family members to effect a settlement in order to avoid a property appraisal. Duress and undue influence in the context of divorce agreements was recently discussed in Libel v. Libel, 5 Kan. App. 2d 367, 368, 616 P.2d 306 (1980), wherein it is stated:
“ ‘To constitute duress by threats the actor’s manifestation must be made for the purpose of coercing the other; must have for its object the securing of undue advantage with respect to the other; must be of such a character that it is adapted to overpower the will of the other and is reasonably adequate for the purpose; must in fact deprive the other of free exercise of will; and must cause the other to act to his detriment.’ ” Motor Equipment Co. v. McLaughlin, 156 Kan. 258, Syl. ¶ 1, 133 P.2d 149 (1943).
“Generally, absent a confidential or fiduciary relationship between the parties, one who asserts duress to avoid an agreement has the burden of proof to establish that claim (see 25 Am. Jur. 2d, Duress and Undue Influence § 31, p. 392), and such evidence must be of a substantial nature (Motor Equipment Co. v. McLaughlin, 156 Kan. at 266).”
The court in the present case clearly found that the defendant had not met her burden of proof to show actual duress or coercion. Without disturbing that finding, we nonetheless hold that when one party produces some evidence of pressure to enter a settlement in order to avoid a property appraisal, and her testimony evinces material reservations concerning the agreement, and the only evidence of property values is the other party’s testimony summarizing their respective shares, and the agreement fails to include the parties’ interest in a large acreage they worked as tenant farmers, the court cannot properly find the agreement valid, just and equitable under K.S.A. 1980 Supp. 60-1610(e). Further, in reviewing the defendant’s testimony set out above, her request that the court approve the agreement appears equivocal at best. In our opinion, the court abused its discretion in approving the property settlement agreement.
Defendant also appeals the court’s approval of her attorney fees and asserts that plaintiff’s attorney was just as involved in this matter as her attorney, and that while plaintiff’s attorney received only $5,000, her attorney received $12,500.
In this case the court did not award attorney fees to one party under K.S.A. 1980 Supp. 60-1610(g), but rather approved the settlement agreement that each party would be responsible for his or her own attorney fees and then recited in the decree that $12,500 was a fair and reasonable fee for defendant’s attorney. Nevertheless, the analogy suggests that the same standard of review should apply, and it is well established that the reasonable value of such fees rests largely in the sound discretion of the trial court. Wiles v. Wiles, 200 Kan. 574, 576, 438 P.2d 81 (1968); Neis v. Neis, 3 Kan. App. 2d 589, 599 P.2d 305, rev. denied 226 Kan. 792 (1979). See also Scimeca v. Scimeca, 1 Kan. App. 2d 70, 561 P.2d 904 (1977) (appellate court may fix counsel fees when in disagreement with the trial court). The question on appeal, then, is whether the trial court abused its discretion in approving defendant’s attorney fees. Reviewing the record, we find there is no evidence upon which the court could have found the fees were fair and reasonable. Although considerable property was involved, there is absolutely no evidence of the time defendant’s counsel spent preparing this case, nor is there any other basis upon which to determine the value of his services. The record does not disclose evidence of any agreement between defendant and her counsel as to the amount of his fee. The agreement did provide that each party would pay his or her own attorney fee, but no amount was stated. When defendant testified at trial, her attorney interrupted her and stated he had told her his fee would be $12,000 plus .$500 expenses, but nowhere does it appear that defendant understood or agreed to that amount. In our opinion, the court abused its discretion in approving the fees.
The judgment is reversed and remanded for further proceedings in accord with the views expressed herein.
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Foth, C.J.:
This is a “dog fright” as opposed to a “dog bite” case. The primary issue is whether defendants could properly be held liable for personal injuries suffered by plaintiff when, frightened by defendant’s dog, he lost control of and fell from a bicycle. A jury returned a substantial verdict for plaintiff. Defendants appeal, contending first and foremost that liability could only arise if their dog was vicious and they knew it, and the dog bit or otherwise came into physical contact with plaintiff. There being no evidence or contention of any such contact, they maintain their motion for directed verdict should have been sustained.
Although many facts were hotly contested at trial, on appeal defendants do not challenge plaintiff’s version. His evidence showed:
In June, 1977, defendants John and Deloris Jordan and their children lived in a single family house at 6613 East Tenth Street in Wichita. They were relative newcomers to the neighborhood, having moved in just over a year before. They brought with them their dog “Peanut.” Peanut was a cockapoo, i.e., part cocker spaniel and part poodle, and weighed at most twenty pounds. He was permitted to run loose at times and acquired a reputation in the neighborhood as a pest — he routinely barked at passersby, dashing at them in a way taken by many to be menacing. He was described by a neighbor in one encounter as “pawing at the ground, showing [his] teeth, snarling.” Two neighborhood women who has been accustomed to walking by the Jordan house told of frightening encounters with Peanut. Thereafter one of the women wouldn’t go by without her husband. He, after one encounter where he had to beat Peanut off with a branch broken from a tree, took to carrying a cane to serve that function. Both women eventually chose alternative routes. Just three days before plaintiff’s encounter, a young lady next door to the Jordans had rescued a tearful little girl from the street where Peanut had the child “cornered.” Although he was never known to have bitten anyone, Peanut was by most accounts a menace and by all accounts a bouncy, pesky, yappy little dog.
Plaintiff Franklyn Henkel and his wife also lived on East Tenth Street, at 6510. At about 6:30 p.m. on June 22, 1977, the Henkels set out on their five-speed bicycles to visit a friend. Plaintiff, 62 years old at the time, had for many years served as coach and athletic director at a Wichita high school. He had undergone knee surgery the preceding fall, and the bicycle riding was part of his prescribed therapy. Although he knew of loose dogs in the neighborhood and disliked their running and barking at him while he was bicycling, he nevertheless elected to ride down East Tenth. (Defendants attempt to make much of this, as will be discussed later.)
As the Henkels went by the Jordan house, Peanut came running up, barking as was his wont. Plaintiff, who was in the lead, saw the dog out of the corner of his eye, close to his bike. He made an evasive turn, lost control, and was thrown over the handlebars. An ambulance took him to a hospital where he remained about three months recovering from a concussion, a broken clavicle, a broken hip, and assorted cuts and abrasions.
The jury assessed plaintiff’s damages at $160,435.28, and found plaintiff 15% at fault. Defendants no longer challenge the amount of plaintiff’s damages. On appeal their arguments are (1) the facts do not establish a prima facie case of liability, (2) the court should have instructed the jury on the doctrine of “assumption of risk,” and (3) the comparative negligence instruction was misleading or confusing.
1. Defendants’ liability argument is based on dog bite and other cases, where an animal has directly inflicted physical injury. McKinney v. Cochran, 197 Kan. 524, 419 P.2d 931 (1966); Berry v. Kegans, 196 Kan. 388, 411 P.2d 707 (1966); Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107 (1961); McComas v. Sanders, 153 Kan. 253, 109 P.2d 482 (1941). Under such cases, they argue, the plaintiff had the burden of proving two essential elements: (1) that the dog had vicious propensities; and (2) that the owners had knowledge of these vicious characteristics.
We have no quarrel with those cases, or with defendants’ thesis drawn from them. Liability in animal cases, as in all negligence cases, is based on the “fault” of the animal owner. If the animal is not vicious, or is not known to be vicious, its owner cannot reasonably be found blameworthy if the animal unexpectedly injures someone. Foreseeability of injury is an essential ingredient of negligence.
Here, however, we are dealing with physical injury directly resulting from fright, albeit induced by an animal. In assessing “fault” in such a case foreseeability is again the key. Physical contact is not necessary. Over 75 years ago our court noted:
“There is a conflict in the authorities in regard to whether there can be a recovery for physical injuries resulting from fright where the act causing the fright was merely negligent and not willful, and differences of opinion as to what constitutes a physical injury and whether certain injuries can be regarded as the proximate result of the negligence which caused the fright; but the great weight of authority is that if the bodily injury is the direct and reasonable consequence of the fright caused by the negligence a recovery may be had although the negligence may have been unintentional.” Whitsel v. Watts, 98 Kan. 508, 510, 159 Pac. 401 (1916).
See also Annot, 64 A.L.R.2d 100; 98 A.L.R. 402.
Two “dog fright” cases from other jurisdictions have been brought to our attention. In Farrior v. Payton, 57 Hawaii 620, 562 P.2d 779 (1977), the plaintiffs were strolling along the beach. Because the tide came in, the plaintiffs were unable to continue along the shoreline so they climbed a natural rock wall in order to proceed further, unwittingly trespassing upon the defendants’ property. Upon reaching the top of the rock wall the plaintiffs arrived in the back yard of the defendants. There, the defendants’ German Shepherd dog ran toward the plaintiffs in a position one plaintiff recognized as an “attack” position. Evidence showed the dog was in the company of the defendants’ son and that the dog would respond to his commands. Evidence also showed the defendants knew the dog would run and bark at strangers. The plaintiffs, in their efforts to escape the dog, fell off the rock wall and were injured. The trial court granted the defendants a directed verdict at the close of evidence and the plaintiffs appealed.
The supreme court reversed and remanded for jury determination of the comparative negligence of the plaintiffs and defendants. The court noted that the defendants were aware of the dog’s propensity to run and bark at strangers and that because of the proximity of the defendant’s home to the shoreline strangers frequently trespassed inadvertently on the defendants’ property. Although the defendants knew the dog would not bite anyone absent a command, strangers would be unaware that they were not in danger and would probably retreat from the dog to a precarious position on the rock wall. The court decided that reasonable persons could reach different conclusions concerning liability in the case and thus a directed verdict was improper.
In Machacado v. City of N.Y., 80 Misc. 2d 889, 365 N.Y.S.2d 974 (1975), the plaintiff was strolling along a public sidewalk in front of the defendant’s house. The defendant had a chain link fence surrounding the house which prevented the defendant’s dog from venturing forth along the public way. The defendant’s dog, upon seeing the plaintiff, charged “furiously . . . [and] hurled itself at the fence, snarling and barking angrily at the plaintiff.” Taken aback and frightened by this sudden, hostile activity, the plaintiff made a sudden move to escape which resulted in injury.
The dog owner sought dismissal of the complaint for failure to state a cause of action. The court denied the motion. It noted the novel fact situation but ruled that the same general legal principles apply in “dog fright” cases as in “dog bite” cases. The owners must have knowledge of the dog’s propensity which foreseeably would endanger another person, and the absence of physical contact between the dog and the plaintiffs was of no moment. The court analogized to other negligence cases where the defendant could reasonably foresee that a person would be injured by the negligent act without actual contact, citing Restatement of Torts § 436 (1934). See also Restatement (Second) of Torts § 303 (1965). The petition therefore stated a cause of action, and whether the facts amounted to negligence was a jury question.
Here, Peanut was known to run toward people, snarling and growling, though he had never bitten anyone. The defendants were put on notice by numerous individuals that the dog had frightened people who passed along the street. In their brief defendants review the testimony on notice and, attempting to minimize their knowledge, conclude: “Taken together, this evidence might prove that the Jordans knew their dog had a menacing behavior toward people walking near their yard.” Although such knowledge might be insufficient to impose liability for a bite, in this case it was Peanut’s “menacing behavior” which caused the injury. Defendants were concededly aware of this propensity of their dog. Whether they should have forseen that it would cause injury and have taken steps to prevent such injury were fact questions, properly submitted to the jury.
2. Defendants’ “assumption of risk” theory was based on plaintiff’s knowledge that there were dogs in Peanut’s neighborhood and election to ride through it anyway. The requested instruction relied on for this argument was:
“A person can be found negligent where he knows or should know of a danger and he voluntarily exposes himself to that danger.”
Instead the court gave the following:
“Negligence is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstances then existing. It is also referred to as the failure to exercise due care.
“You are instructed that the plaintiff had the duty to exercise due care for his own safety.”
Even if we assume it can be negligence to make lawful use of a public street, the instruction given covered the concept of the requested instruction; it gave defendants plenty of room to argue their theory of negligence, and they in fact did so. It was a general instruction in accordance with the guidelines of Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 600-01, 545 P.2d 334 (1976). There was no error in refusing the request.
3. Finally, defendants argue that the instructions, and particularly No. 6, required the jury to compare plaintiff’s “fault” to that of Peanut. A dog, they observe, cannot be at “fault.”
We note first that there was no objection on this ground to instruction No. 6 during the usual colloquy on requests and objections. The only objection made was based on defendants’ theory that a bite or other contact were necessary — a theory discussed and rejected under point 1. above. Only after the jury had been instructed, arguments had been made, and the jury had retired to deliberate did defense counsel evidence the present concern. We conclude from this that the claimed misleading nature of the instruction was not readily apparent, even to counsel.
The instruction complained of says:
“No. 6
“Portions of this case must be determined on the basis of comparative causal responsibilities of the dog ‘Peanut’ and Frank Henkel.
“Causal responsibility refers to those actions which caused Mr. Henkel to fall from his bicycle.
“Your obligation in this regard is to assign a percentage of fault to each of the parties. A party is at fault in this case when what he or it did caused or contributed to the event which brought about the injury or damages for which claim is made.
“This percentage figure may range from zero percent to one hundred percent. When all the percentages of fault are added together, the total must equal one hundred percent.
“You have the discretion to assign fault to Franklyn Henkel and to the dog ‘Peanut.’
“The laws of Kansas applicable to this case require me to reduce the amount of damages you have awarded by the percentage of fault that you find is attributable to that party.
“A party will be entitled to recover damages if his fault is less than 50% of the total fault. A party will not be entitled to recover damages, however, if his fault is 50% or more.” Emphasis added.
Although the instruction does use the term “fault” in describing the jury’s apportionment function, it also speaks of “causal responsibility” and, to our minds, uses the terms interchangeably. It is necessary, of course, to consider No. 6 in context, including:
“No. 3
“In this case, if you find from all the evidence that the Plaintiff has proved each of the following statements to be more probably true than not true, then you will find for the plaintiff, determine the percentage of fault, and determine the plaintiff’s damages.
“1. That one or both of the Defendants owned the dog named ‘Peanut’;
“2. That ‘Peanut’ was the dog involved in this incident;
“3. That if he was allowed to run loose, ‘Peanut’ was likely to cause substan tial harm to others;
“4. That the defendants or either of them knew or had reason to know that ‘Peanut’ was likely to cause substantial harm to others;
“5. That ‘Peanut’ caused substantial harm to the plaintiff;
“6. That the substantial harm was caused in a manner foreseeable by the defendant;
“7. That the actions of ‘Peanut’ were at least 51% responsible for the plaintiff’s injuries.
“If you find that the plaintiff has not met his burden of proof on each and every one of the foregoing statements, you will find for the defendant.
“No. 4
“Dogs have from time immemorial been regarded as friends and companions of man. The great majority of dogs are harmless, and dogs have been traditionally regarded as unlikely to do substantial harm if allowed to run at large, so that their keepers are not required to keep them under constant control. If, however, the owner of a dog knows or has reason to know that if a dog is not kept under constant control it is likely to cause substantial harm to others, the owner has a duty to keep his dog confined.”
The true fault to be compared was plaintiff’s in selecting his route and controlling his bicycle with defendants’ in letting Peanut run loose. We think Nos. 3 and 4, together with 5 (defining negligence, quoted above) adequately conveyed that message. The jury was first to determine whether defendants knew Peanut on-the-loose was dangerous, and whether the harm resulting was of the type they should have foreseen if he was loose. Only then was it required to allocate causation. No. 6, while not perfectly drawn, put the jury to the task of allocating causal responsibility between the conduct of plaintiff and the conduct of the dog — for which defendants were 100% responsible.
Looking at the instructions as a whole we think they “properly and fairly state the law” and that “the jury could not reasonably be misled by them.” Bechard, 218 Kan. at 601.
Affirmed.
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Meyer, J.:
Paul E. Graber and Norma J. Graber (appellants) brought this personal injury action against appellant Paul E. Graber’s former employer. Paul E. Graber suffered an initial back injury while working for Crossroads Cooperative Association (appellee). At the time of the injury giving rise to this lawsuit, Paul E. Graber’s initial back injury had been subjected to surgery and fusion, and prior to the instant injury the back had healed and the fusion had solidified. Appellant Paul E. Graber’s injury for which he now brings suit occurred after the healing aforementioned and after he had left appellee’s employ. While on his former employer’s premises, on personal business, he slipped, caught himself, and broke part of the fusion. The problem arises when we consider that had the first injury not occurred, there would have been no fusion to break; whereas had the slipping not occurred, the fusion would not have broken.
Following the taking of depositions and the answering of interrogatories, appellee filed a motion for summary judgment, alleging appellant Paul E. Graber’s claims were barred by the exclusive remedy provisions of the Kansas workmen’s compensation act. The trial court granted summary judgment in favor of appellee and found that the second injury to Graber’s back was a direct and natural result of the first injury which, because it was compensable under the Kansas workmen’s compensation act, would now bar appellant Paul E. Graber by the exclusive remedies provisions of that act. The trial court thus concluded that the claims of both Grabers were now barred.
The sole issue before us on appeal is whether the second injury was a direct and natural consequence of the first occupational injury.
The direct and natural consequences doctrine in workmen’s compensation cases arose from factual situations in which a disability occurred which was related to, but distinct from, a scheduled injury disability. In the case of Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264 (1972), the Supreme Court held that bicipital tendonitis of claimant’s right shoúlder and atrophy of his right arm were the direct and natural result of traumatic partial amputations of fingers on his right hand. The court stated:
“We find that when a primary injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” (Emphasis added.) 208 Kan. at 643.
The court followed Jackson in Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P.2d 1175 (1973) (allowing recovery for traumatic neurosis traceable to an eye injury); Bergemann v. North Central Foundry, Inc., 215 Kan. 685, 527 P.2d 1044 (1974) (allowing recovery for back strain developed after the crushing and partial amputation of claimant’s right foot); Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 548 P.2d 746 (1976) (allowing recovery for back strain caused by claimant’s limping after having both left lower leg bones broken); and Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976) (allowing recovery for back strain caused by limping after a knee injury). In each of these cases the second disability progressively developed in relation to the original injury. No new accident or separate trauma occurred.
The scope of Jackson was narrowed one year later in Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 505 P.2d 697 (1973). Claimant sprained his back on the job. The day after he was released to return to work he strained his back at home. The Supreme Court reviewed the evidence and found substantial evidence to support the trial court’s finding of fact that the second injury was a new and separate accidental injury. Justice Owsley wrote:
“The rule in Jackson is limited to the results of one accidental injury. The rule was not intended to apply to a new and separate accidental injury such as occurred in the instant case. The rule in Jackson would apply to a situation where a claimant’s disability gradually increased from a primary accidental injury, but not when the increased disability resulted from a new and separate accident.” (Emphasis added.) 211 Kan. at 263.
Defendant contends that Billig v. Cities Service Gas Co., 222 Kan. 369, 564 P.2d 548 (1977), disapproved or ignored Stockman. Gillig sustained a knee injury in January 1973. Fluid was drained but no surgery was performed. In March 1975, Gillig twisted his knee while stepping off a tractor and experienced pain, a not unusual occurrence. Later in the evening his knee locked. Surgery was necessary to remove a torn cartilage which had not healed from the 1973 injury. The 1975 disability was found to be a direct and natural consequence of the 1973 injury. Claimant’s knee had never healed. The court notes the factual situation was somewhat similar to Stockman but that the trial court arrived at an opposite conclusion. The court concluded there was sufficient evidence to support the trial court’s findings. Although somewhat similar, Stockman did involve back sprain which had subsided; whereas, Gillig involved a torn knee cartilage which never healed. Stockman had a distinct reinjury, but Gillig experienced continuing aggravation which culminated in a total functional failure.
In Makalous v. Kansas State Highway Commission, 222 Kan. 477, 565 P.2d 254 (1977), the court followed Gillig and allowed compensation for a myocardial infarction suffered ten weeks after an intimal hemorrhage occurring on the job. As in Gillig, claimant suffered a continuing disability which culminated in severe symptomatology.
In the instant case, the slip was a distinct trauma-inducing event out of the ordinary pattern of life and not a mere aggravation of a weakened back. As a matter of law, the trial court erred in finding the second injury was a direct and natural consequence of the first injury. Gillig and Makalous are thus distinguishable from the instant case, and the trial court erred in granting summary judgment.
Reversed.
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Parks, J.:
This action was brought by plaintiff Jim Kristek against defendant James Catron to recover damages for the negligent construction of plaintiff’s residence. Following a bench trial plaintiff was awarded judgment in the amount of $1,470 and costs. Defendant appeals.
The house now owned by plaintiff was constructed by defendant under a contract with Centurian Investments. The house was completed in 1975 and sold to plaintiff by Centurian in March 1976. Over two years later, in December 1978 plaintiff noticed several stains on the ceiling and walls of the house resulting from water leakage. At trial, an experienced roofer testified on behalf of plaintiff that in his opinion the lack of felt under the shingles and the incorrect placement of nails on the roof caused the leaking which stained the walls and ceiling. This expert also testified that to properly remedy the leaking, the entire roof would have to be replaced.
Defendant first contends that the trial court erred in ruling that the two-year statute of limitations on negligence did not bar this action (K.S.A. 60-513) because construction of the residence was completed in October 1975, while the lawsuit was not filed until October 1979.
K.S.A. 60-513(h) provides:
“Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if 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 the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
Defendant argues that the leak in the roof must have existed prior to December 1978 when plaintiff first noticed water spots on his ceiling. Plaintiff agrees that the leak must have existed prior to the time the water spots appeared on the ceiling but argues that discovery of the leak prior to that time would have required him to either remove the shingles on the roof or regularly inspect the crawl space above the ceiling. Plaintiff further argues that these are not normal inspection procedures that a homeowner would make; therefore, the leak was not reasonably ascertainable under 60-513(h) until the water spots first appeared on the ceiling.
When, as here, the evidence is in dispute as to when substantial injury first appears or when it becomes reasonably ascertainable, the issue is for determination by the trier of fact. Friends University v. W.R. Grace & Co., 227 Kan. 559, 562, 608 P.2d 936 (1980). On appeal, the trial court’s findings of fact will be upheld if supported by substantial competent evidence. Jerry L. Phillips, Inc. v. Ratley, 6 Kan. App. 2d 157, 160, 627 P.2d 339 (1981). Plaintiff first noticed water spots on his ceiling in December 1978, but plaintiff’s expert testified that the leak may have existed for some time prior to the appearance of the stains. In addition, he stated that the roof construction was such that it may not have started to leak until some two years after completion. We conclude that the trial court’s finding that the leak was reasonably ascertainable for less than two years prior to the filing of this action is supported by substantial competent evidence.
Defendant also contends that as a matter of law, he could not be liable to plaintiff for negligence because the work he performed as a building contractor was completed and accepted by the party to whom the performance was owed. 13 Am. Jur. 2d, Building and Construction Contracts § 139. This principle of the non-liability of building contractors to third parties has a long if largely discredited history. See Annot., 58 A.L.R.2d 865, 891. In Talley v. Skelly Oil Co., 199 Kan. 767, 776-78, 433 P.2d 425 (1967), the Court acknowledged that Kansas had paid lip service to the accepted work doctrine in the past but concluded that the following rule was the better one:
“A building or construction contractor is liable for an injury to a third party resulting from work negligently performed even though the injury occurs after completion of the work and its acceptance by the owner, where such work is reasonably certain to endanger third persons if negligently done.” 199 Kan. 767, Syl. ¶ 2.
Because the facts of Talley involved a personal injury, defendant argues that the holding is limited to personal injury cases and should not be extended to cases such as this one which only involve economic injury. The rationale for the non-liability rule is generally premised on the lack of privity of contract between the building contractor and third persons. Talley, 199 Kan. at 776. By holding that an injured third party may sue for the negligence of a contractor, the Talley court rejected the need for privity. The characterization of the injury of the third party as personal or economic should not alter the conclusion that privity is unnecessary in a negligence action.
Talley also noted that only one previous Kansas case had employed the accepted work doctrine but observed that the plaintiff in that case failed to allege in his petition negligence by the defendant. Engler v. Aldridge, 147 Kan. 43, 47, 75 P.2d 290 (1938). Although the Engler case only involved property damage and was in part distinguishable on the ground that negligence was not alleged, the Court stated, “To the extent, however, that the Engler decision may be said to conflict with our present holding, the same is disapproved.” Talley, 199 Kan. at 778.
If the Talley rule were intended to be limited to personal injury cases, no such disapproval would have been necessary.
Further support for rejecting the limitations on Talley urged by defendant is found in the fact that some of the cases cited by that court in justifying rejection of the non-liability rule involved property damage. See, e.g., Russell v. Whitcomb, 100 N.H. 171, 121 A.2d 781 (1956) (plaintiff alleged property damage when defendant failed to properly refill an excavation in a public highway in which defendant was constructing a sewer line for City). Finally, the accepted work doctrine’s restriction of liability on grounds of privity of contract is simply not in line with modern authorities or principles of liability. Prosser, Law of Torts § 104, p. 681 (4th ed. 1971).
In McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435 (1974), plaintiff homeowners brought an action against a contractor for the negligent installation of a septic system. There the court held that a builder or contractor may be liable for injuries or damage caused by his negligence to persons with whom he has no contractual relationship and even though his work was completed and accepted by the owner before the injuries or damage occurred. The Massachusetts court further held that liability will be imposed only if it is foreseeable that the contractor’s work, if negligently done, may cause damage to the property or injury to persons living on or using the premises.
The Supreme Court of South Dakota concluded in Brown v. Fowler, 279 N.W.2d 907 (S.D. 1979), that defendants were under a duty, running to the Browns, to construct the house non-negligently, that plaintiffs were members of the class of purchasers for whom the house was constructed even if they were not the first purchasers. The court went on to say that it is certainly foreseeable that such a house would be sold to subsequent purchasers and that any defects are as certain to harm the subsequent purchasers as the first.
Navajo Circle, Inc. v. Development Concepts, 373 So.2d 689 (Fla. Dist. Ct. App. 1979) was a suit by a condominium association and a unit owner against the architect for negligently supervising the construction and subsequent repairs of the roof of a condominium building and the contractor for negligently constructing the roof, causing damage to the roof and damage to the exterior and interior walls. The court held that no privity is required to allege a cause of action for negligent performance of a contractual obligation. The court cited A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973), as authority for the principle that a party who may foreseeably be injured or sustain an economic loss caused by the negligent performance of a contractual duty of an architect has a cause of action against such architect. See also Drexel Properties, Inc. v. Bay Colony, Etc., 406 So.2d 515 (Fla. Dist. Ct. App. 1981); Porras v. Campbell Sales Co., 121 Ariz. 320, 589 P.2d 1352 (Ct. App. 1978); Driscoll v. Columbia Realty-Woodland Park, 41 Colo. App. 453, 590 P.2d 73 (1978); Koncinsky v. Smith, 390 So.2d 1377 (La. App. 1980); Amer. Recip. Insurers v. Bessonette, 241 Or. 500, 405 P.2d 529 (1965). Contra, Ins. Co. v. Homes, 64 Ohio St.2d 269, 416 N.E.2d 623 (1980); Redarowicz v. Ohlendorf, 95 Ill. App. 3d 444, 420 N.E.2d 209 (1981).
We agree with these authorities and hold that a purchaser of a residence may recover property damage caused by the negligence of its builder despite the lack of any contractual relationship with the builder. Therefore, a construction contractor is liable for any injury to a third party, personal or economic, resulting from work negligently performed even though the injury occurs after completion of the work and its acceptance by the owner, when such injury is reasonably certain to occur if the work is negligently done.
Defendant also maintains that the trial court erred in finding that the defendant’s negligence was the proximate cause of plaintiff’s damages. Plaintiff’s expert witness testified that in his opinion the leak was caused by lack of felt and improperly placed nails. When there is no evidence of any other cause for the leaks complained of in this case, the expert’s evidence is sufficient to sustáin the verdict on appeal. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, Syl. ¶ 1, 624 P.2d 420 (1981).
Finally, defendant claims that the judgment awarded plaintiff was excessive. The trial court awarded as damages the cost of replacing the entire roof. Defendant argues that this award is unsupported by the evidence and that the award should be the cost of repair rather than the cost of replacement. Again, the only evidence on this point was that of the plaintiff’s expert witness who testified that it was necessary to replace the roof in order to stop the leak and estimated such cost to be $1,460, the amount of damages actually awarded. Therefore, we are compelled to find that there was substantial competent evidence to support the damage award.
Affirmed.
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Bullock, J.:
This is an appeal from a trial court denial of Michael H. Sweetser’s motion seeking (1) relief from the default severance of his parental rights, (2) restoration of his parental rights and (3) custody of his minor children. The material facts are not in dispute.
On October 18, 1978, Shela J. Sweetser was granted a divorce from Michael J. Sweetser on the grounds of incompatibility. In that action, Shela was granted custody of the minor child born to the parties during the marriage and the two minor children of Shela’s earlier marriage, both of whom had been adopted by Michael.
In April, 1980, Shela filed a motion requesting that custody of the minor children be changed to their maternal grandmother, Joyce V. Jackson. The motion was accompanied by an affidavit which alleged that Shela was incapacitated by illness and that Michael was physically handicapped, had a recent history of emotional difficulties and was, as a result, also unable to care for the minor children.
In response to Shela’s motion, the trial court entered an ex parte interlocutory order granting temporary custody to Joyce Jackson and directing summons and notice of hearing on the change of custody motion be sent to Michael, at an address in Illinois, by restricted mail. Because the court also found that Michael might have moved to Florida, a notice of hearing was also required to be published pursuant to K.S.A. 38-1305 and K.S.A. 60-307(c) and (f). Neither the motion nor the affidavit attached to it requested that the defendant’s parental rights be terminated.
On May 29, 1980, the motion for change of custody was heard by the trial court. Shela appeared through her attorney and Joyce V. Jackson appeared in person. Michael did not appear. The court’s order indicates that no evidence was presented, other than the affidavit referred to above. On this record, the trial court found both parents unfit to have custody of the minor children and ordered their parental rights terminated. The court then granted custody of the minor children to their maternal grandmother, Joyce V. Jackson.
In March, 1981, Michael filed a motion seeking (1) relief from the default severance of his parental rights, (2) restoration of his parental rights and (3) custody of his children. On June 3, 1981, the trial court held that its order of May 29, 1980, transferring custody of the minor children to Joyce V. Jackson, was not modifiable under the doctrine of res judicata and overruled the motion.
From this order Michael has appealed. At oral argument, we were advised that, subsequent to the proceedings in the trial court, Shela died. Joyce V. Jackson, the children’s grandmother and custodian under the May 20, 1980, order, is now substituted as appellee here on her counsel’s motion to intervene.
Michael raises two points for our review on appeal.
1. Michael’s first point constitutes an attack upon the May 29, 1980, order terminating his parental rights. In this connection, Michael argues that he was not adequately notified concerning the motion. Specifically, he does not claim the mode of service was improper (see K.S.A. 38-1305) but rather that the notice apprised him of a motion only to change custody and not to terminate his parental rights. The point is well taken.
Shela’s motion was entitled Motion for Change of Custody, and although it requests determination of the “fitness” of the parents, it does not request termination of parental rights. Clearly, the trial court, under 60-1610(a) could have found both parents unfit and awarded custody to a third party without terminating the parents’ rights. See Finney v. Finney, 201 Kan. 263, 440 P.2d 608 (1968). In our view, therefore, merely informing defendant that “fitness” would be determined, did not apprise him that his parental rights might be terminated. A parent’s right to custody is constitutionally protected. Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972). The right to adequate notice in judicial proceedings is a fundamental one, guaranteed both by statute and by the Fourteenth Amendment to the Constitution of the United States. K.S.A. 60-205(a), K.S.A. 60-206(d), and K.S.A. 60-207(b); Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950); Armstrong v. Manzo, 380 U.S. 545, 14 L.Ed.2d 62, 85 S.Ct. 1187 (1955). Without such notice, due process is denied and any judgment rendered is void. As we said in State v. Buckle, 4 Kan. App. 2d 250, 255, 604 P.2d 743 (1979):
“It is elementary that notice and an opportunity to be heard are essential to any judgment affecting personal or property rights. ... A notice such as was given here, which does not fairly apprise a party of the action proposed to be taken, is no notice at all. Under these circumstances we do not inquire as to prejudice or whether there is in fact a meritorious defense.”
In addition to due process considerations, we note another fatal flaw in the May 29, 1980, order. Because Shela’s motion did not request termination of parental rights, the trial granted relief which was not requested. Under K.S.A. 60-254(c), this is clearly improper in a default setting. That statute states, in part: “A judgment in default shall not be different in kind from . . . that prayed for in the demand for judgment.”
From the foregoing it is clear that Michael had two adequate grounds upon which to obtain relief, pursuant to K.S.A. 60- 255(h), from the default judgment terminating his parental rights. Although he did not phrase his motion exactly in terms of K.S.A. 60-255(h), he did raise these arguments in his trial court memorandum brief and, in our view, the trial court should have set aside its original order on both grounds.
2. Michael argues in his second contention that even if his parental rights had been validly terminated under K.S.A. 1981 Supp. 60-1610(a), the trial court had jurisdiction nonetheless to entertain his application for restoration of those rights and should have done so on the merits.
Although the views expressed in point 1 above are dispositive, we are constrained to note that this point is likewise well taken. Under K.S.A. 1981 Supp. 60-1610(a)(3), the trial court has clear power to restore parental rights previously terminated under 60-1610(a), and that power is not dependent upon abortive adoption proceedings as the language in that section might suggest. Bandel v. Pettibone, 211 Kan. 672, 508 P.2d 487 (1973).
Accordingly, the trial court’s order denying relief from the default severance is reversed and this cause is remanded with instructions to the trial court to vacate its order of May 29, 1980, and to hear and determine Michael’s motion for custody on the merits.
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Abbott, J.:
This is an extradition case in which Charles L. Ellis is alleged by the demanding state (Arkansas) to have violated the terms of his parole. Ellis’s argument is based on language in Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971); Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978); and Gladney v. Sheriff of Leavenworth County, 3 Kan. App. 2d 568, 598 P.2d 559 (1979).
The Uniform Criminal Extradition Act, K.S.A. 22-2701 et seq., sets out the prerequisites for granting extradition. Its requirements to extradite one charged with committing a crime in the demanding state are different from those to extradite one who stands convicted and is accused of breaking the terms of bail, probation or parole.
Ellis served 22 years of a life sentence for his conviction of first degree murder in Arkansas. His sentence was subsequently commuted to a term of 92 years, 9 months and 3 days. He was paroled, and Arkansas now alleges he violated the terms of his parole. All that is required to grant extradition under those circumstances are authenticated documents by the executive authority making demand, including a copy of the judgment of conviction (or of a sentence imposed in execution thereof) and a statement that the person claimed has escaped from confinement or has broken the terms of his or her bail, probation or parole. K.S.A. 22-2703. No showing of probable cause is necessary for the extradition of one who has been convicted and sentenced for a substantive criminal offense. Morgan v. Miller, 197 Colo. 341, 593 P.2d 357 (1979); Ingram v. Dodd, 243 Ga. 788, 256 S.E.2d 778 (1979).
We have examined the record before us and find that it contains the required documents duly authenticated; thus, the trial court did not err in dismissing Ellis’s writ of habeas corpus.
Affirmed.
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Lewis, J.:
This is an interlocutory appeal by the plaintiff. At issue is whether the trial court erred in changing venue from Wyandotte County to Leavenworth County. We affirm and remand the matter for trial in Leavenworth County.
The underlying action is one for personal injuries sustained while painting a commercial apartment building in Leavenworth. During the process, plaintiff apparently made contact with an uninsulated overhead power line maintained and owned by defendant. The power line was energized with 7,620 volts of electricity, and, upon making contact with it, plaintiff sustained serious injuries. The accident took place in Leavenworth County, and, at the time of the accident, plaintiff was a resident of Leavenworth County.
Plaintiff filed a timely petition in Wyandotte County seeking to recover $840 in property damage and in excess of $50,000 for his personal injuries. Defendant moved to dismiss the action, claiming that venue was improperly laid in Wyandotte County. The trial court refused to dismiss, but it did agree that venue was improper and ordered the action transferred to Leavenworth County.
The trial court noted the venue issue should be resolved by the appellate courts as soon as possible and made the necessary findings to expedite Such an appeal. We granted plaintiff’s application to file an interlocutory appeal.
JURISDICTION
Defendant argues that plaintiff has acquiesced in the judgment of the trial court and that the appeal should be dismissed. This argument is based on the claimed fact that plaintiff is proceeding with discovery and other matters in Leavenworth County.
The defendant’s argument on acquiescence has no factual support in the record. We have examined the record carefully and can find nothing from which we can conclude that plaintiff has acquiesced in the judgment. It is well settled that the burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims. First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan, 595, 602, 647 P.2d 1268 (1982).
The facts recited in defendant’s brief to indicate acquiescence are without citation to the record. The Supreme Court rules governing recitation of facts in a party’s brief provide: “The facts stated therein shall be keyed to the record on appeal so as to make verification reasonably convenient. Any material statement made without such a reference may be presumed to be without support in the record." Supreme Court Rules 6.02, 6.03 (1991 Kan. Ct. R. Annot. 24). (Emphasis added.) Accordingly, we presume that the statements concerning acquiescence made in the brief of the appellee are without support in the record. Further, assertions or arguments of counsel before the trial court or in appellate briefs neither constitute evidence nor remedy inadequacy in the record on appeal. City of Overland Park v. Barnett, 10 Kan. App. 2d 586, 595, 705 P.2d 564 (1985); Rural Water Dist. No. 6 v. Zeigler Corp., 9 Kan. App. 2d 305, 310, 677 P.2d 573, rev. denied 235 Kan. 1042 (1984). We also point out that statements by counsel in oral argument before this court are treated in the same manner.
We find no factual support for defendant’s claim of acquiescence in the record, and we hold it to be without merit.
VENUE
The question we must determine is where venue is properly laid under the facts. The plaintiff argues that venue should be in Wyandotte County and that the trial court erred in transferring venue to Leavenworth County. Defendant submits, with equal fervor, that venue is properly laid in Leavenworth County and that the trial court did not err in its actions.
The answer to the question at hand is found in K.S.A. 1991 Supp. 60-606, which provides:
“(a) Except as provided by subsection (b), any action brought against a public utility, common carrier or transportation system for any liability or penalty or forfeiture, may be brought in any county into or through which such public utility, common carrier or transportation system operates regularly.
“(b) Any action brought against a public utility, common carrier or transportation system ./or damages arising from personal injury, resulting in death or otherwise, shall be brought in either the county in which the injury occurred or in the county in which the plaintiff resided at the time of injury.” (Emphasis added.)
The facts of this case indicate that the injury occurred in Leavenworth County and that plaintiff resided, at the time of the injury, in Leavenworth County. Plaintiff, on the other hand, argues that, since he included an $840 property damage claim along with his $50,000 personal injury claim, 60-606(a) applies. If plaintiff is correct, venue was properly laid in Wyandotte County, since defendant regularly operates in that county. We conclude that plaintiff’s argument in this regard is without merit.
The statute is straightforward and clear in its meaning. K.S.A. 1991 Supp. 60-606(a) applies in all actions “[e]xcept as provided by subsection (b).” (Emphasis added.) Subsection (b) controls venue when the action is one involving damages arising from personal injury or death. Although plaintiff has a cause of action for property damage included in his petition, as well as one for personal injuries, the action is clearly not one contemplated by 60-606(a) and is governed by 60-606(b). As we read the statute, subsection (a) applies to all actions against a public utility except those involving damages arising from personal injuries. These actions are governed by subsection (b). The action filed by plaintiff is, at least in part, an action seeking to recover damages for personal injuries and is, therefore, governed by the language “[ejxcept as provided by subsection (b).” We hold that an action against a public utility seeking to recover property damage and damage for personal injuries or death is controlled by K.S.A. 1991 Supp. 60-606(b). Venue in this action was in the county where the accident occurred or where the plaintiff resided. In this case, both elements of venue are found in Leavenworth County. Neither element can be located in Wyandotte County. We hold the trial court did not err in transferring venue to Leavenworth County.
Further:
“It is the duty of the court to reconcile different statutory provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.] 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. [Citation omitted.]” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989).
K.S.A. 1991 Supp. 60-606(a) is the general statute relating to venue in actions against public utilities. K.S.A. 1991 Supp. 60-606(b) is a special statute and relates to actions against public utilities when the nature of the action is to recover for personal injuries or death. Plaintiff’s petition, which includes causes of action for both property damage and personal injury, appears to create a conflict between subsection (a) and subsection (b); and, under the rule stated above, subsection (b) will prevail. We see no indication that the legislature intended to make subsection (a) controlling in a case of this nature.
In addition, we believe our decision is consistent with the admonition to harmonize and make consistent different statutory provisions. K.S.A. 1991 Supp. 60-606(a) allows the property damage claim to be filed in any county where defendant operates regularly, and that includes Leavenworth County. The personal injury claim must be filed in Leavenworth County under 60-606(b). Our decision that Leavenworth County is the county of proper venue harmonizes and makes subsections (a) and (b) as consistent as possible and avoids a conflict between those two subsections.
CONSTITUTIONALITY
Plaintiff contends that K.S.A. 1991 Supp. 60-606(b) violates the Equal Protection Clause of the Kansas Constitution Bill of Rights. (Sections 1 and 18.) This presents a question of law in which our scope of review is unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). The Bill of Rights of the Kansas Constitution provides in part:
Ҥ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
“§ 18. Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, arid justice administered without delay.”
Plaintiff argues that his rights to equal protection under the law are being infringed on in at least two ways. First, he maintains that defendant public utilities are treated differently than other corporate defendants in cases involving personal injury as a result of the venue options being more limited. He then argues that personal injury plaintiffs who also have suffered property damage by the negligence or fault of a public utility are treated differently than personal injury plaintiffs who did not suffer any property damage. We consider plaintiff’s constitutional arguments to be strained and without merit.
In reviewing arguments concerning equal protection, the courts have offered analysis under a “rational basis” review and a “heightened scrutiny” review. We must first determine which standard of review is to be applied in the instant matter.
Generally, legitimacy and gender-based classifications are reviewed under “heightened scrutiny.” State v. Risjord, 249 Kan. 497, 502, 819 P.2d 638 (1991). Plaintiff fails to point out to us any reason for us to conclude that because of his equal protection claim he is a member of a “quasi-suspect” class deserving “heightened scrutiny.” See Risjord, 249 Kan. at 502. “ ‘Traditionally, the yardstick for measuring equal protection arguments has been the “[rational] basis” test.’ ” Bair v. Peck, 248 Kan. 824, 831, 811 P.2d 1176 (1991). Plaintiff has failed to explain why the statute deserves a “heightened scrutiny.” For that reason, as well as for others, we conclude the “rational basis” test is the proper review to apply to the facts at hand.
Plaintiff, in oral argument, stated to this court on several occasions that he was somehow being denied a “remedy.” We disagree with plaintiff’s argument in this regard. The remedy is to file suit in a proper forum and recover his damages. Plaintiff is not being denied a remedy to seek proper redress for his damages. The only thing plaintiff is being denied by the statute is the right to pick the county of venue. Plaintiff fails to demonstrate to us how he has suffered any prejudice or harm as a result of the legislature’s enactment of the venue statute.
In general, when venue statutes have been attacked as unconstitutional, that attack has been unsuccessful.
“ ‘[I]t is fundamental rights which the Fourteenth Amendment safeguards and not the mere forum which a State may see proper to designate for the enforcement and protection of such rights. Given therefore a condition where fundamental rights are equally protected and preserved, it is impossible to say that the rights which are thus protected and preserved have been denied because the State has deemed best to provide for a trial in one forum or another. It is not under any view the mere tribunal into which a person is authorized to proceed by a State which determines whether the equal protection of the law has been afforded, but whether in the tribunals which the State has provided equal laws prevail.’ [Citation omitted.]” American Motorists Ins. Co. v. Starnes, 425 U.S. 637, 644-45, 48 L. Ed. 2d 263, 96 S. Ct. 1800 (1976).
“The ‘[rational] basis’ test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective.” Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989). “A statute comes before the court cloaked in a presumption of constitutionality, and it is the duty of the party attacking the statute to sustain the burden of proof.” Leiker, 245 Kan. at 364.
Representatives of the public utilities testified when House Bill No. 2452 [K.S.A. 1991 Supp. 60-606(b)] was being debated before the House and Senate Judiciary Committees in favor of the bill as a method to counter the “forum shopping” being done by plaintiffs in suits against the public utilities. In fact, the witnesses at the debate on the bill stated that Wyandotte County was the county most favored by plaintiffs in those cases. See Hearings on House Bill No. 2452 before House Judiciary Committee, 1987 session; Hearings on House Bill No. 2452 before the Senate Judiciary Committee, 1987 session.
Applying the “rational basis” test, it does not appear that this classification is irrelevant if its goal is to decrease “forum shopping” by plaintiffs in public utility cases. We find it to be a legitimate state interest to control “forum shopping” by plaintiffs. Accordingly, K.S.A. 1991 Supp. 60-606(b) passes scrutiny under the “rational basis” test and does not violate the equal protection guarantees of the Kansas Constitution.
In summary, the plaintiff has a full remedy provided by the laws of Kansas to recover for any and all., damages sustained by the fault of the defendant. We know of no “right” possessed by any plaintiff to file his lawsuit wherever and whenever he may please. Such rights simply do not exist. What is required is that the State afford this plaintiff a forum in which his rights may be asserted and litigated. That forum is provided by the legislature for Leavenworth County. We have no information and no suggestion has been made that the law in Leavenworth County is any different than the law in Wyandotte County. Equal laws prevail in both forums, and this is all the Constitution requires. This plaintiff has the same rights as any other similarly situated plaintiff and has demonstrated no denial of his right to equal protection of the law.
Affirmed.
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Pierron, J.:
Leon A. King appeals his conviction of one count of sale of cocaine under K.S.A. 1991 Supp. 65-4127a. King contends the trial court gave a clearly erroneous jury instruction on the defense of entrapment. We affirm.
On October 2, 1990, Willie Willingham was arrested by police in Prairie Village and charged with the crimes of possession of cocaine and driving while under the influence. Police detectives later approached Willingham and offered to seek a reduction in the possession of cocaine charge against him if he would cooperate with them in setting up a purchase of cocaine. Willingham agreed and began working with the police sometime in late 1990.
The detectives testified Willingham told them he normally bought cocaine from a woman named Shellita Greenwood at her home in Overland Park. On January 8, 1991, Willingham called Greenwood from the police station while detectives monitored the call. Willingham told Greenwood he wanted to purchase an “eight ball” of cocaine. An eight ball is a street term for one eighth of an ounce, or approximately three and one-half grams of cocaine. Willingham asked how much it would cost and Greenwood quoted him a price of $250. Greenwood agreed to make a “connection” for Willingham to purchase the cocaine and was told to bring the money to her house the next day around 5 p.m. On January 9, 1991, Willingham called Greenwood again, and she confirmed that the sale had been arranged.
Willingham was outfitted with a hidden radio transmitter (body pack) and both he and his car were thoroughly searched by the police. Police then gave Willingham $250 to make the cocaine buy and followed him to Greenwood’s house, where they set up their surveillance. The police observed Willingham enter Greenwood’s house. Because of background noise from children playing and a television set that was on, it was very difficult for police to monitor what was being said inside Greenwood’s house. Ño recording was made of the radio transmission from the body pack.
When the defendant arrived at Greenwood’s house, Greenwood introduced Willingham to King and they went upstairs. The police detectives, who continued to monitor the transmissions from Willingham’s body pack, were able to hear some of the upstairs conversation between King and Willingham. Detective Dennis Nealey testified he heard a voice which he identified as Willingham’s ask, “ Is this good stuff?’ ” and another voice responded, “ ‘Yes, it’s good, and I guarantee it.’ ” Detective Wesley Jordon testified he heard Willingham say “ ‘Is it good?’ ” and a male voice responded, “ ‘It’s good stuff. I give a money-back guarantee.’ ”
Willingham testified that, when they went upstairs, King told him he could sell him a number of-small bags of cocaine for $10 each. Willingham gave King $250 and received from him 26 small bags containing what a forensic chemist later identified as cocaine. Willingham gave one bag to Greenwood for arranging the sale. The total weight of the cocaine in the other 25 bags was approximately 1.8 grams, or about half of what Willingham had asked for.
Within 10 minutes of King’s arrival, Willingham exited Greenwood’s house. The police followed Willingham to a prearranged meeting place about one-half mile away where they received the crack cocaine he had purchased. King was stopped and arrested after leaving Greenwood's house. The detectives had made a list of the serial numbers of the bills provided to Willingham, and money found in King’s front pants pocket matched those serial numbers.
King was convicted at jury trial and sentenced to prison for a period of not less than 5 nor more than 20 years.
The issue before us is whether the trial court’s instruction to the jury on the defense of entrapment was clearly erroneous.
At trial, King admitted he had access to drugs at the time of his arrest because he was then a drug user. Under King’s version of the facts, Greenwood called him on January 8, 199Í, and then put Willingham on the phone. King claims Willingham asked if he could sell him an eight ball and he answered that he did not sell drugs. King stated that Willingham called him again on January 9 and that he again told him no. King indicated Willingham called him a third time on January 9 and offered him $250, which King maintains is a ridiculously high price, and stated that King would be doing him a favor to sell to him. King testified he told Willingham that all he had was a small amount of cocaine for his personal use. King stated Willingham said that was all right. King testified he was not in the business of selling cocaine and would not have sold to Willingham if Willingham had not called so insistently so many times.
King contends the court’s instruction to the jury on the defense of entrapment was clearly erroneous because it misstated the statutory defense, misled the jury, and unduly emphasized certain evidence.
During the jury trial instruction No. 8, which reads as follows, was given to the jury:
“The defendant claims as a defense that he was entrapped. Evidence in support of this claim should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State’s burden of proof does not shift to the defendant. If the defense asserted causes you to have a reasonable doubt as to the defendant’s guilt, you should find the defendant not guilty.
“The defendant can rely on the defense of entrapment when he is induced or persuaded to commit a crime which he had no previous disposition or intention to commit; however he cannot rely on the defense of entrapment when he began the plan to commit the crime or when he had shown a predisposition for committing the crime and was merely afforded the opportunity to carry out his intention to complete his plan to commit the crime and was assisted by law enforcement officers.
“The defendant cannot rely on the defense of entrapment if you find that in the course of defendant’s usual activities the sale of cocaine was likely to occur and the law enforcement officer or his agent did not mislead the defendant into believing his conduct to be lawful.
“A person’s previous disposition or intention to commit a crime may be shown by evidence of the circumstances at the time of the sale, setting of the price of the cocaine by the defendant, solicitation by defendant to make his sale, prior sales by defendant, or ease of access to the cocaine by defendant.” (Emphasis added.)
All of the instruction except the first paragraph is taken from PIK Crim. 2d 54.14 (1988 Supp.).
King did not object at trial to the entrapment instruction. It is well settled that:
“A party may not assign as error the giving or failure to give an instruction unless the party timely objects to the instruction stating the specific grounds for the objection. Absent such, objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. [Citation omitted.] 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 is a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Dunn, 249 Kan. 488, 491-92, 820 P.2d 412 (1991).
King first contends the jury instruction was clearly erroneous because it did not follow the language of the statute which codifies the entrapment defense. K.S.A. 21-3210 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.)
King contends the trial court, by substituting the word “persuaded” for the word “solicited,” prejudicially misstated the entrapment defense. King argues it is more difficult for a defendant to show that he was persuaded than to show he was solicited. King maintains the jury may have rejected his defense because it did not find he was induced or persuaded by Willingham, yet might have found that he was solicited by Willingham and so found him not guilty if an instruction properly following the statutory language had been given.
Since the entrapment defense is not of a constitutional dimension, our legislature was free to adopt any substantive definition of the defense it found desirable. See United States v. Russell, 411 U.S. 423, 433, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). Under the statutory language, in deciding whether the defense is available, it must first be determined whether an agent of the State has induced or solicited the criminal conduct. K.S.A. 21-3210. If so, the statute then focuses on the defendant’s predisposition to commit the crime. “The extent of government activity in soliciting the crime charged is weighed by the jury against defendant’s willingness to comply, and other evidence of predisposition to determine whether defendant originated the criminal purpose or was entrapped.” State v. Bagemehl, 213 Kan. 210, Syl. ¶ 4, 515 P.2d 1104 (1973).
In State v. Jones, 2 Kan. App. 2d 220, 225, 577 P.2d 357 (1978), this court attempted to define the terms used in K.S.A. 21-3210.
“Webster says that to induce is to move or lead ‘as by persuasion or influence.’ (See, Webster’s Third New International Dictionary.) As opposed to its synonyms persuade’ or ‘prevail,’ the word is said to indicate overcoming indifference, hesitation or opposition, ‘usually by offering for consideration persuasive advantages or gains.’ Thus, ‘inducements’ are generally equated with rewards, and action is generally ‘induced’ by the offer of positive gains, not by threats.
“The same authority gives as its first modem meaning for ‘solicit’ to ‘make petition to’ and especially ‘to approach with a request or plea (as in selling or begging).’ Included in the definitions is ‘to endeavor to obtain by asking or pleading.’ All definitions connote a request which may be refused; none include the concept of a threat.”
Black’s Law Dictionary (6th ed. 1990) defines the terms “solicit,” “persuade,” and “induce” as follows:
“Solicit. To appeal for something; to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain; and though the word implies a serious request, it requires no particular degree of importunity, entreaty, imploration, or supplication.” Black’s Law Dictionary 1392.
“Persuade. To induce one by argument, entreaty, or expostulation into a determination, decision, conclusion, belief, or the like; to win over by an appeal to one’s reason and feelings, as into doing or believing something; to bring oneself or another to belief, certainty or conviction; to argue into an opinion or procedure.” Black’s Law Dictionary 1144-45.
“Induce. To bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on.” Black’s Law Dictionary 775.
While induce and persuade are essentially synonymous terms, it can be argued that solicitation is not the same as inducement or persuasion. “ ‘[Inducement’ represents more than mere . . . solicitation . . . and, in fact, embodies an element of persuasion or mild coercion.” United States v. Hill, 626 F.2d 1301, 1304 (5th Cir. 1980). See U.S. v. West, 898 F.2d 1493, 1502 (11th Cir. 1990), cert. denied 111 S. Ct. 685 (1991); U.S. v. El-Gawli, 837 F.2d 142, 149 (3d Cir.), cert. denied 488 U.S. 817 (1988); United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986). But see United States v. Dunn, 779 F.2d 157, 158 (2d Cir. 1985) (“ ‘soliciting . . . the commission of the offence charged’ does constitute inducement”).
In any event, we find the controlling fact is that the issue of solicitation was not contested in this case. The defendant testified that the undercover agent almost mercilessly solicited him and the agent testified that he did solicit the defendant. The important question was whether, once solicited, the defendant met the factual criteria found in K.S.A. 21-3210 and instruction No. 8 for a defense of entrapment.
The jury could not have been reasonably expected to arrive at a different verdict with the addition of the word “solicit” to the jury instructions. The very nature of the entrapment defense presupposes that, following a solicitation, the defendant is induced or persuaded to commit a crime. Proof that the defendant was induced or persuaded to commit the crime, as opposed to just being provided an opportunity, must logically include actions amounting to solicitation. 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.
King also contends that the jury instruction was clearly erroneous because it permitted the jury to find King was predisposed to commit the crime charged, defeating the defense of entrapment, based solely upon the single factor of “ease of access to the cocaine by defendant.”
PIK Crim. 2d 54.14 instructs that predisposition to commit a crime may be demonstrated by evidence of five types: “circumstances at the time of the sale, setting of the price of the [cocaine] by the defendant, solicitation by defendant to make his sale, prior sales by defendant, or ease of access to the [cocaine] by defendant.”
During its deliberations the jury submitted to the court a written question as follows: “ ‘In definition of intention you list four criteria separated by an “or,” so if we believe that any of the four exist i.e., “ease of access,” does that imply intention?’ ” The court simply instructed the jury to give the word “or” its ordinary meaning. This suggests that the jury may have found King predisposed to commit the crime charged, and so denied him the defense of entrapment, based solely upon a finding of his “ease of access” to cocaine.
King admits he was an active cocaine user at the time of his arrest and seems to admit, therefore, that he had at least sporadic access to some small amount of cocaine for his own personal use. He argues that his access to cocaine for personal use should not be considered controlling evidence on the issue of his predisposition to act as a dealer of cocaine.
In determining whether an instruction is correct, we must look at the entire instruction. Read as a whole, instruction No. 8 fairly sets out the Kansas approach to the entrapment defense. The particular portion questioned here reads: “A person’s previous disposition or intention to commit a crime may be shown by . . . .” (Emphasis added.)
When read in conjunction with the earlier portion of the instruction referring to the inducement versus mere opportunity dichotomy, the instruction is clear* The jury must determine the inducement issue under the “beyond a reasonable doubt” standard with the defendant the beneficiary of the presumption. One factor of the five listed, or all five, may or may not meet that burden, depending on the facts.
When an entrapment defense is asserted and the jury is instructed that it must find a predisposition to commit the crime “beyond a reasonable doubt” and a verdict of guilty is returned, we assume the jury found there was sufficient evidence to reach the verdict and did not rely on a single factor that in itself might not be sufficient.
We must presume the jury read and correctly applied the instructions to the facts. The question submitted by the jury is not a definitive statement of how the jury analyzed the case and decided it. The instruction adequately stated the law and we find no reversible error.
Affirmed.
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Prager, C.J.,
Retired: This case arose after a 1987 Mercury Lynx owned by Kandi Cann, the plaintiff/appellant, was damaged by a tornado on November 15, 1988. The car was insured by Farmers Insurance Company, Inc., (Farmers) the defendant/ appellee.
The controversy between the parties was over the amount of damages to which plaintiff was entitled under the Farmers insurance policy. After a trial to the court, the court made findings of fact which essentially are as follows:
On October 17, 1988, plaintiff leased a 1987 Mercury Lynx from a Lincoln-Mercury dealer. She obtained insurance from Farmers. On November 15, 1988, a tornado struck the vehicle, turning it over and doing extensive damage to it. The vehicle was turned right side up and driven to plaintiff’s home.
Subsequently, plaintiff drove the car to the Farmers office where she discussed the damage with an adjuster, who estimated the repair.1- would cost $3,618.18. Plaintiff took the car to Kars Body Shop for repairs. The choice of Kars to make repairs was made by plaintiff in concert with the lessor.
The car was under repair for six weeks at Kars. On January 12, 1989, plaintiff took possession of the car and signed a payment form authorizing Farmers to pay to Kars the sum of $3,418.18, which was based upon Farmers’ estimate less $200 for the deductible provided in the policy. Farmers paid Kars.
Plaintiff claimed she signed the form under duress because it was the only way she could get possession of the car. She was not satisfied with the condition of the car’s interior, which she believed had not been repaired.
Plaintiff took the car back to the Farmers office where Dave Pauley, claims adjuster for Farmers, personally examined the car, heard her additional complaints, and made a supplemental estimate for repairs to the car’s interior in the amount of $689.30. Pauley told plaintiff to take the car back to Kars and have them repair items she was not satisfied with, and also told her to take the car to Topeka Vinyl to get an estimate for additional repairs to the interior of the car. Plaintiff refused to do so because she wanted to be paid on the basis the car was a total loss.
Plaintiff and Pauley then consulted with James W. Rempe, the Farmers branch claims manager, who told plaintiff to take the car back to Kars to complete the repairs and that the supplemental estimate of $689.30 would provide for total repair of the vehicle. Plaintiff, having made up her mind that she wanted a new car, refused and stated she would talk with her attorney.
Before the case was filed, plaintiff’s attorney telephoned Rempe to see if the case could be settled. ■ Rempe advised the attorney that Farmers was willing to pay the additional sum of $689.30 as calculated in the supplemental estimate. Rempe testified that the offer to pay the additional $689.30 was absolute and unconditional and that the company had the ability to immediately write a check if it was accepted.
Plaintiff’s counsel refused to accept the offer , and the case was filed and tried to the court without a jury. The trial court entered a judgment in favor of plaintiff in the amount of $689.30, the same amount Farmers offered to pay prior to the filing of the case and which was rejected by plaintiff.
The trial court declined to award plaintiff her attorney fees, which plaintiff claimed under the provisions of K.S.A. 40-908. Plaintiff then appealed to this court.
The plaintiff raises three primary issues on the appeal. She first maintains that the trial court erred in finding that Farmers made a tender to pay plaintiff before the commencement of the action pursuant to K.S.A. 40-908 and, therefore, erred in refusing to award plaintiff her attorney fees as required by that statute. K.S.A. 40-908 provides as.follows:
“That in all actions now pending, or hereafter commenced in which judgment is rendered against any insurance company on any policy given to insure any property in this state against loss by fire, tornado, lightning or hail, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action including proceeding upon appeal to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.”
Plaintiff’s argument, in substance, is that Farmers did not make a tender in the amount of $689.30 because it failed to actually deliver a check in that amount to her before the commencement of the action.
On the basis of the evidence as summarized above, we find this point to be without merit. The trial court, in its opinion, correctly relied on Carpenter v. Riley, 234 Kan. 758, 761, 675 P.2d 900 (1984), where the court defined a “tender” in the following language: “Tender is an unconditional offer to perform a condition or obligation. The party making tender must have the ability for immediate performance. The tender must be absolute and unconditional to be effectual.”
The court, in Carpenter, further held that tender of future payment was waived by plaintiff’s declaration refusing tender. It stated that tender would serve no purpose as far as plaintiff was concerned and tender by defendant would be a mere formality. Equity does not insist on purposeless conduct and disregards mere formality. A tender or demand otherwise indispensable is no longer required when its futility is shown. 234 Kan. at 762.
There are no Kansas cases defining the word “tender” as used in K.S.A. 40-908. However, K.S.A. 60-2006 provides a similar scheme for awarding attorney fees in an action to recover for negligent operation of a motor vehicle except when a tender equal to or in excess of the amount recovered was made by the adverse party before the commencement of the action in which judgment is rendered.
In Layton v. Heinlein, 14 Kan. App. 2d 104, 106, 782 P.2d 1254 (1989), which involved the question of attorney fees under K.S.A. 60-2006, the court adopted the definition of “tender” set forth in Carpenter as “an absolute and unconditional offer to perform a condition or obligation. The party making tender must have the ability for immediate performance.”
In the present case, the trial court found that plaintiff would not listen to Farmers’ offer of the supplemental repair estimate of $689.30, which would have provided for total repair. Her actions made further tender of the supplemental estimate a futile gesture.
Furthermore, béfore the case was filed, Farmers offered to pay to plaintiff’s attorney the sum of $689.30 to complete the repairs on her car. Farmers’ offer was absolute and it had the ability to pay immediately if the offer had been accepted. Further offers would have been futile.
We hold that, in order to avoid the payment of attorney fees under the provisions of K.S.A. 40-908, an insurance company must make an offer to the insured before the case is filed to pay to the insured a specific amount of money in settlement of the claim. The insurance company must have the ability for immediate performance and the offer must be absolute and unconditional to be effective. When the amount recovered in the judgment is not in excess of the amount offered, attorney fees of the plaintiff insured are not recoverable as part of the costs.
The trial court was correct in finding that Farmers made a tender before commencement of this action within the meaning of K.S.A. 40-908. The amount of the judgment was the same as the amount of the tender. Therefore, plaintiff is not entitled to attorney fees.
Plaintiff next contends that the trial court erred in ignoring uncontroverted evidence as to additional damage. The trial court heard the conflicting testimony of witnesses from both sides as to additional damages. The trial court weighed the testimony and made findings of fact which are supported by substantial competent evidence. We find this point to be without merit.
As her final point, plaintiff contends that the trial court erred in finding that the damaged vehicle could be restored for $689.30: This point is also without merit because there is substantial competent evidence to support the trial court’s findings.
Affirmed.
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Lewis, J.:
This is a civil action brought by the State of Kansas to forfeit $31,550 in cash under K.S.A. 1991 Supp. 65-4135(a)(6). After trial, the trial court ordered the cash forfeited. The appellants, or claimants, are Randy Kroening and Douglas Koehler, who contend that the cash is their legitimate property and not subject to forfeiture. After a review of the record, we affirm the decision of the trial court.
The problems of the claimants began when the vehicle in which they were riding was pulled over for speeding by Trooper Alphonse Sanchez, Jr., of the Kansas Highway Patrol. The automobile in question, a 1978 Chevrolet, was owned by Kroening and was driven by Koehler. In addition to the two claimants, a third passenger in the vehicle was Annette Hays, the girlfriend of Kroening.
After the vehicle was stopped, Koehler produced his drivers’ license. However, he could not produce any proof of insurance. Kroening then spoke up and advised the trooper that the vehicle was uninsured. After ascertaining that the vehicle was not properly insured, Trooper Sanchez arrested Kroening for permitting his vehicle to be operated without insurance and Koehler for driving an uninsured vehicle.
At some point during the proceedings, the occupants were asked to exit the vehicle and did so. When Kroening got out of the car, Sanchez noted he appeared to be extremely nervous and was concealing something under his jacket. Upon further inquiry, Kroening advised Sanchez that he had $30,000 in cash under his jacket and, upon request, turned the cash over to Sanchez.
At this point, Sanchez asked for permission to search the vehicle. Permission was granted. The vehicle was searched, and no issue was raised on this appeal concerning the validity of that search.
The search of the vehicle revealed a rather insignificant amount of marijuana. There was a total of 1.6 grams of marijuana found in the car, part of it in the front seat and part of it in a duffle bag located in the trunk.
There is evidence that traces of marijuana were found on the money seized from Kroening. The KBI examination failed to show evidence of marijuana on the money. However, a trained police dog made a “hit” on the money, which was construed to be positive for narcotics.
The money initially concealed under Kroening’s coat totaled $30,900. It was packed in a number of white envelopes sealed with duct tape. Each envelope had numbers written on it to indicate the amount of cash in the envelope. There were nine envelopes in all: four with $1,000 each in them; one with $1,900; three with $5,000 each; and one with $10,000. In addition to these amounts, $650 in cash was taken from Kroening’s wallet.
Koehler maintained that $8,000 of the cash belonged to him, while the rest was Kroening’s. Claimants insisted the money was not drug related and was to be used by them to purchase old junk cars in Oklahoma. Kroening had a business in Wisconsin in which he purchased old cars and used the parts to make various items of furniture. His uncle had advised him of an opportunity to purchase 30 old cars in Oklahoma that were about to be crushed. Kroening insists he and Koehler had gathered up their cash and set off for Oklahoma to purchase the old junk cars. On questioning, however, he could not name the salvage yards in Oklahoma that allegedly had the vehicles available.
At trial, Trooper Sanchez testified that he was trained in narcotics trafficking. In his opinion, the packaging of the money in separate envelopes, as described, was indicative of and consistent with the manner used by drug traffickers. He also indicated that the occupants of the vehicle fit the profile of drug traffickers and appeared to be on a direct trip to buy drugs and planning an immediate return. He premised this latter opinion on the limited amounts of luggage and clean clothing in the vehicle when it was stopped. He also felt it significant that the occupants of the vehicle had not bathed in some time and had not stopped to freshen up.
David Majors, a federal drug enforcement agent, was also called as a witness for the State. He testified that the money was packaged in a manner consistent with drug trafficking.
At the completion of the evidence, the trial court ordered the $31,550 forfeited to the State. Claimants appeal that decision and raise several issues.
K.S.A. 1991 Supp. 65-4135(a)(6)
This is a civil action in which the State seeks to forfeit money allegedly related to the sale or purchase of illicit drugs. This action is provided for by K.S.A. 1991 Supp. 65-4135(a)(6), which states in pertinent part:
“(a) The following are subject to forfeiture:
“(6) everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of the uniform controlled substances act, all proceeds traceable to such an exchange, and all moneys, negotiable instruments and securities used, or intended to be used, to facilitate any violation of the uniform controlled substances act, except that no property shall be forfeited under this subsection (a)(6), to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the owner’s knowledge or consent. All moneys, coin and currency found in close proximity to forfeitable controlled substances, to forfeitable drug manufacturing or distributing paraphernalia or to forfeitable records of the importation, manufacture or disposition of controlled substances, are presumed in the manner provided in K. S.A. 60-414 and amendments thereto to be forfeitable under this subsection (a) (6). Under this subsection (a) (6), the burden of proof shall be upon claimants of the property to rebut this presumption.” (Emphasis added.)
As is highlighted, the statute provides that money found in close proximity to a controlled substance is presumed to be forfeitable. The statute contemplates a showing by the State to raise the presumption and, once that is done, the burden is shifted to the claimant to rebut the presumption. In this case, the $31,550 in question was found in “close proximity” to a quantity of marijuana. Marijuana is a forfeitable controlled substance under the statute. Thus, by proving these basic facts, the State raised a presumption that the money was forfeitable. It is not relevant that the marijuana found was insignificant in amount. The statute does not specify that any minimum amount of controlled substance is required to raise the presumption. Once the presump-
tion comes into existence, the claimants must produce evidence to rebut it to successfully defend against forfeiture.
In this case, the trial court determined that the claimants’ evidence was not sufficient to rebut the presumption. The claimants argue this finding is not adequately supported by the evidence. We disagree.
In a case of this nature, our standard of review is that of substantial competent evidence. State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, Syl. ¶ 1, 799 P.2d 1043 (1990). If the trial court’s finding is supported by substantial competent evidence, it will not be disturbed on appeal. Substantial competent evidence is evidence that is legal and relevant such that a reasonable person might accept it as being sufficient to support a conclusion. Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988). In reviewing the trial court’s decision on this issue, it is not our function to weigh the evidence or pass on the credibility of the witness. If the evidence and all reasonable inferences drawn from it, when viewed from the perspective most favorable to the prevailing party, supports the trial court’s decision, that decision will be affirmed. Tetuan v. A.H. Robins Co., 241 Kan. 441, Syl. ¶ 1, 738 P.2d 1210 (1987); Ratterree v. Bartlett, 238 Kan. 11, Syl. ¶ 13, 707 P.2d 1063 (1985).
When we apply these standards of review to the record before us, we find that the trial court’s decision that claimants did not rebut the presumption is supported by substantial competent evidence.
The claimants argue that the record is devoid of any hard evidence that the money in question was from the sale of drugs or was to be used to buy drugs. We concede this to be an accurate statement, but it is still of no benefit to claimants. The statute does not require proof that the money was from the sale of drugs or was to be used to buy drugs. The statute requires only that the State prove the money was found “in close proximity” to a controlled substance. The State was able to prove this fact; consequently, it became the beneficiary of a presumption in favor of forfeiture which claimants were required to rebut. There is no requirement that the State “prove” the money was obtained to buy or sell drugs. Once the presumption is raised, the claimants must “prove” the money was not to be used for drug-related purposes.
The claimants presented evidence in an attempt to rebut the statutory presumption. The trial court concluded that this attempt was unsuccessful. That conclusion is supported by substantial competent evidence.
Claimants introduced evidence to indicate that Kroening had a legitimate business from which these funds were derived and for which they were to be used. The trial court examined Kroening’s books and records, which were apparently introduced into evidence, and found them to be sloppy and unreliable and kept contrary to ordinary business practices. As a result, the trial court rejected the evidence as being insufficient to establish a legitimate source for the funds in question.
We will not second-guess the trial court’s handling of Kroening’s business records. As pointed out earlier in this opinion, decisions on the credibility and weight of the evidence submitted are the province of the trial court. The court has the function of deciding what weight to place on the evidence, and there is no basis in the record for this court to usurp that function.
In addition, we are hampered in considering the claimants’ arguments by the lack of an adequate record. The business records which claimants insist the trial court had no right to disbelieve are not in the record. We are not in a position to hold that the trial court mishandled documentary evidence where appellants have failed to make that evidence available to us for review. The appellants have the burden to designate a sufficient record on appeal. On this issue, claimants have failed to do so, and we are required, under such circumstances, to affirm the finding of the trial court. First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602-03, 647 P.2d 1268 (1982).
The trial court also found that the packaging of the money was consistent with drug trafficking. Claimants contend this finding ignores their explanation of how and why the money was packaged in the manner shown. Once again, claimants failed to appreciate our standard of review.
The weight and credibility to be given to the evidence is a decision for the trier of fact. In this case, the State produced evidence that the money was packaged in a manner consistent with drug trafficking. The claimants presented another, more benign, explanation for the money packaging. The trial court chose to believe the testimony of the witnesses for the State. This decision is peculiar to the trier of fact, and we will not intervene and redetermine which version should be believed.
We hold that the decision of the trial court that claimants did not rebut the presumption of forfeitability is supported by substantial competent evidence. We affirm that finding.
K.S.A. 60-414
K.S.A. 1991 Supp. 65-4135(a)(6) states that the presumption raised in that statute is governed by K.S.A. 60-414 and amendments thereto. K.S.A. 60-414 has in the past proven to be somewhat of an enigma. See McMurray v. Crawford, 3 Kan. App. 2d 329, 594 P.2d 1109 (1979). Under the facts of this case, we find no mystery in the application of the statute. It reads as follows:
“Subject to K.S.A. 60-416, and except for presumptions which are conclusive or irrefutable under the rules of law from which they arise, (a) if the facts from which the presumption is derived, have any probative value as evidence of the existence of the presumed fact, the presumption continues to ,exist and the burden of establishing the nonexistence of the presumed fact is upon the party against whom the presumption operates; (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved.” (Emphasis added.) K.S.A. 60-414.
In this case, claimants argue that the trial court erroneously applied 60-414(a), whereas it should have applied 60-414(b). Such error, claimants argue, caused the trial court to misapply the burden of proof to their detriment. We do not agree.
We hold that K.S.A. 60-414(a) was applicable to the facts shown by the record. The application of subsection (a) or subsection (b) depends on whether the facts from which the presumption is derived have any “probative value as evidence of the existence of the presumed fact.” If they do have probative value, subsection (a) applies. If they do not, then subsection (b) applies.
“Probative evidence is evidence that tends to prove an issue; it furnishes, establishes or contributes toward proof.” State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 698, 648 P.2d 249 (1982), aff’d 233 Kan. 223 (1983). See Akin v. Estate of Hill, 201 Kan. 306, 311, 440 P.2d 585 (1968).
In analyzing the issue raised by claimants, we first note the statute provides that subsection (a) applies if there is any probative evidence of the presumed fact. As a result, we are not required to consider the nature or weight of the evidence; our only question is whether the evidence is probative of the presumed fact. If the presence of a controlled substance in close proximity to the money is probative of the fact that the money is drug related, the presumption is a subsection (a) presumption. It is not relevant whether the evidence shows five pounds or 1.6 grams of the substance. The statute raises the presumption on the showing of any probative evidence, and we are not required to quantify that evidence. We conclude that the statute is rather liberal in raising a presumption and that no particular amount of probative evidence is required to do so. The following comments are instructive:
“This court must assume that the Kansas Supreme Court is familiar with Kansas statutory law, and that it does not fashion its holdings in derogation to the intent of the Kansas elected branches. Fortuitously, the court need not accept defendant’s implicit invitation to reconsider the Wooderson decision for the Kansas Supreme Court, because it finds defendant’s argument to be based upon the erroneous assumption that this presumption comes within subsection (b) of the statute. Under subsection (a), a presumption derived from evidence that itself has any probative value is not eliminated simply because some evidence contrary to the presumed fact is introduced. Kansas as well as federal law provides that evidence having any tendency in reason to establish a material fact has probative value. Schmeck v. City of Shaumee, 232 Kan. 11, 32, 651 P.2d 585 (1982); State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 698, 648 P.2d 249 (1982), aff’d 233 Kan. 223, 662 P.2d 1183 (1983); Fed. R. Evid. 401 & advisory committee’s note. Thus, the court must conclude that the presumption of causation falls under subsection (a) of the statute if evidence of an inadequate warning has any tendency to render the inference of causation ‘more probable than it would be without the evidence. . . .’ Blackman, 7 Kan. App. 2d at 698, 648 P.2d 249.
“The court finds that evidence of an inadequate warning easily meets the liberal test for probative value under the Kansas and federal rules. It must be borne in mind that evidence need not establish a fact, by any standard of proof, for it to have probative value. All that is required is that it have any tendency to make the existence of the fact more probable than it would be without the evidence. Fed. R. Evid. 401. And the clear language of K.S.A. § 60-414(a) directs that presumptions created by evidence having any probative value in establishing the presumed fact continue to exist notwithstanding the introduction of ‘some’ contrary evidence.” Mason v. Texaco, Inc., 741 F. Supp. 1472, 1506 (D. Kan. 1990).
In the instant matter, evidence of a controlled substance in close proximity to the money is certainly some probative evidence of the presumed fact. The “close proximity” evidence has a tendency to make the existence of the presumed fact more probable than it would be without such evidence. We are of the opinion that the Legislature, in enacting 65-4135(a)(6), intended that the close proximity of cash to a controlled substance is probative evidence that the cash is drug related. We reject the argument that a presumption would be raised based on evidence which is not probative of the presumed fact. Accordingly, we have no hesitation in concluding that the presumption raised by K.S.A. 1991 Supp. 65-4135(a)(6) is a subsection (a) presumption under K.S.A. 60-414.
Even if subsection (b) were to be applied to these facts, it would be of no benefit to claimants. We have examined the entire record and conclude that the evidence is sufficient to support a finding ordering forfeiture of the money under subsection (b), as well as subsection (a). The State’s evidence in this case included not only the close proximity of the money to a controlled substance, but a number of other factors which indicated the money was forfeitable. Among the facts shown which we consider significant are the following:
(a) evidence that the money was packaged in a manner consistent with drug trafficking;
(b) evidence that claimants fit the profile of persons who deal in drugs;
(c) evidence that claimants appeared to be making a direct trip to a specified location and planning an immediate return; and
(d) evidence of Kroening’s prior involvement with drug trafficking.
These factors, along with the close proximity of the money, support a conclusion that the money should have been forfeited within the terms of the statute. As a result, while we hold that the facts gave rise to a 60-414(a) presumption, we consider that the record, in its entirety, supports a finding ordering a forfeiture of the money.
KROENING’S PRIOR DRUG CONVICTIONS AND CHARGES
Claimants argue that the trial court erred in admitting into evidence the past criminal record of Kroening. Specifically, claimants argue it was error to admit an exhibit showing a pending charge against Kroening for conspiracy to possess a controlled substance. The argument is that there is no probative value in a pending charge and that the charge was eventually dismissed. They also contend it was error for the court to take notice of Kroening’s conviction of marijuana possession in the underlying criminal case, as that case is still on appeal. Finally, Kroening contends the trial court erred in admitting exhibits that showed his 1979 conviction for sale of marijuana and his 1981 conviction for delivery of a controlled substance.
There are several problems with claimants’ approach to this issue. Claimants argue, for instance, that the court erred in admitting into evidence Exhibits A and B. As we understand the record, Exhibits A and B related to the pending charge against Kroening and the 1979 and 1981 convictions.
The problem is that Exhibits A and B are not made part of the record on appeal. The claimants argue that the documents are not probative of the presumed fact and that they are hearsay. We do not have the documents to examine and, under those circumstances, are unable to satisfactorily deal with claimants’ argument. As pointed out earlier, it is the duty of appellants to designate a complete record on appeal, and failure to do so prevents this court from reversing the trial court. As a result, we affirm the trial court’s decision admitting Exhibits A and B. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. at 602-03.
Kroening argues the trial court should not have considered his most recent conviction for possession of marijuana. This conviction was based upon the marijuana found in the car by Trooper Sanchez as related above. Kroening argues that this conviction should not have been considered because it is on appeal, is not final, and is not probative.
Federal case law indicates that past charges and convictions are probative in considering forfeiture cases. Federal courts have reasoned that arrests or convictions are probative for forfeiture purposes because the government is required to prove only a probability of connection between the criminal conduct and the property forfeited, which is quite unlike the burden of proving a crime beyond a reasonable doubt. See U.S. v. Thomas, 913 F.2d 1111, 1116 (4th Cir. 1990); U.S. v. U.S. Currency Totalling $92,000.00, 707 F. Supp. 540, 542-43 (N.D. Ga. 1989). We agree in general with the federal court position on this issue. We hold that proof of prior arrests or prior convictions are probative in forfeiture cases. It is important to keep in mind that this is not a criminal case. It is a civil case, and the State is not required to prove its case beyond a reasonable doubt. The State is required to prove, by evidence available to it, that the money in question should be forfeited because it is related to drug trafficking. We consider that prior drug trafficking convictions of a defendant are relevant and probative on the issue before the trial court and were properly admitted.
The fact that the pending criminal conviction of Kroening is still on appeal does not require a reversal of the trial court. A judgment will be overruled as a result of erroneously admitted evidence only when the error was not harmless. K.S.A. 60-261. In other words, the judgment of the trial court will not be reversed if the error does not prejudice the substantial rights of a party. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715 P.2d 2 (1986). If the trial court did err in considering the most recent possession conviction, that error was harmless. There is ample evidence in the record without considering the most recent possession conviction to permit the trial court to find that the presumption was not overcome and that the money was forfeitable.
The trial court did not err in admitting evidence of Kroening’s criminal history as it related to previous drug convictions and charges.
THE OPINION TESTIMONY OF TROOPER SANCHEZ AND AGENT MAJORS
Kansas Highway Patrol Trooper Sanchez and Federal Drug Enforcement Agent Majors both testified that the money was drug related. Their testimony was in the form of opinion testimony. Trooper Sanchez testified that, in his opinion, the occupants of the vehicle in which the money was found fit the profile of drug traffickers and that the money found was packaged in a manner consistent with drug trafficking. Agent Majors expressed his opinion that the money was packaged in the manner used by drug traffickers. The claimants argue the trial court erred in permitting this testimony.
The principal case relied upon by claimants is that of State v. Clements, 244 Kan. 411, 420, 770 P.2d 447 (1989). In Clements, the Supreme Court of Kansas held that evidence which describes the characteristics of a typical offender is not relevant and cannot be used to find that a person who matches this profile is guilty. The claimants argue that, based on the Clements decision, the testimony regarding the packaging of the money and the profile of the occupants in the vehicle was irrelevant and could not be used to establish the State’s case.
We believe that, for various reasons, this argument is without merit.
The State contends that this issue is not properly before the court. The. State points out that, in this appeal, the claimants are arguing that the testimony of Trooper Sanchez and Agent Majors should not have been admitted on a relevancy basis. This objection was not raised at trial.
At trial, when Trooper Sanchez began to give his opinion, defense counsel objected on the basis that Sanchez had not been qualified as an expert witness in the field of narcotics detection. There was no objection lodged on the grounds that the evidence was irrelevant for the purpose of establishing guilt. This is equally true in the case of the testimony of Agent Majors.
This is not a criminal action. The guilt or innocence of the claimants was not an issue. The argument that opinion evidence could not be used to establish guilt is misplaced in this case since guilt was not an issue.
The failure of defense counsel to object to the testimony on the grounds now raised appears to be fatal to the claimants’ argument. K.S.A. 60-404 states that a verdict or judgment will not be set aside for the reason of erroneous admission of evidence “unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” Further, the appellate courts of this state have repeatedly stated: “[A] matter to which no objection was raised in the trial court is not to be considered on appeal.” State v. Troy, 215 Kan. 369, 373, 524 P.2d 1121 (1974).
Based on the contemporaneous objection rule in this state, the failure of claimants to raise the question of relevancy in objecting to the opinion testimony prohibits them from raising the issue on appeal.
The issue raised by appellants has no validity on its merits. Both Trooper Sanchez and Agent Majors were qualified as experts. In determining if the trial court erred in the admission of expert testimony, our standard of review is abuse of discretion. “The admissibility of expert testimony lies within the sound discretion of the trial court and its determination will not be reversed on'appeal absent a showing of an abuse of discretion.” State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). Discretion is abused when no reasonable person would agree with the trial court. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
If there was an abuse of discretion in this case in the admission of the experts’ testimony, it would have to be based on the Kansas Supreme Court decision in State v. Clements, 244 Kan. 411. In Clements, an expert in the field of sexual abuse of children testified in general as to the profile of adults who sexually abuse children. The expert had not evaluated the defendant, but was merely giving general information about the profiles of abusers. After a lengthy discussion of similar cases from other states, the Kansas Supreme Court held the expert testimony was inadmissible because it allowed the jury to infer that, because the defendant had some of the characteristics discussed by the expert, the defendant had abused the victim in Clements. The court stated:
“The thrust of [these cases] is that (1) evidence which only describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question; and (2) the only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” 244 Kan. at 420.
The opinion testimony of Trooper Sanchez and Agent Majors would not have been admissible in a criminal action in which guilt or innocence was at issue. This would clearly violate the rule of Clements. The instant matter is not a criminal action, and in no manner is the guilt or innocence of claimants at issue. This is a civil action, and the sole question to be decided is whether the money found is forfeitable. In deciding that question, it is neither necessary nor required that the guilt or innocence of claimants be adjudicated. Under these circumstances, the testimony of Sanchez and Majors was proper opinion testimony and not subject to the rule of Clements. We hold that the rule of State v. Clements is not applicable in a civil action in which guilt or innocence is not an issue. As a result, we conclude the trial court did not err in admitting this evidence.
Our decision is in accord with similar federal forfeiture cases. The federal courts have routinely held profile factors to be relevant and admissible testimony and have permitted opinion testimony on the subject. In U.S. v. $321,470, U.S. Currency, 874 F.2d 298 (5th Cir. 1989), a special agent for the DEA testified, as to factors that are typical of people trafficking in drugs. One of the factors he testified to was the way the money was packaged. The Fifth Circuit held that, based on profile evidence, a sufficient nexus was established between the money and drug trafficking to meet the probable cause standard. The factors the court considered were the following: (1) The two grams of cocaine found indicated that claimant was a consumer and had access to drug dealers; (2) the claimant purchased his vehicle with cash; (3) the claimant exhibited a suspicious demeanor when he was pulled over; and (4) the money was packaged in bundles. The court noted that packaging money in old bundles of cash in small denominations is characteristic of large drug deals. 874 F.2d at 305. See U.S. v. Sixty Thousand Dollars, 763 F. Supp. 909 (E.D. Mich. 1991); U.S. v. $111,980.00 in U.S. Currency, 660 F. Supp. 247 (E.D. Wis. 1987). We believe these federal cases are relevant, and that profile testimony is admissible in a case of this nature.
Finally, we point out that, in the instant matter, the case of the State appears to be affirmable on the basis of the statutory presumption and the failure of claimants to rebut that presump tion. The presumption arose because of the proof of close proximity of the money to controlled substances and would not have been defeated by the absence of the opinion testimony discussed. As a result, any error in the admission of this opinion testimony would have to be considered harmless, at best.
We affirm the decision of the trial court ordering the cash in question forfeited to the State of Kansas.
Affirmed.
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Rulon, J.:
Jack and Judy Stroud, defendants, appeal the judgment of the district court which ordered a forfeiture of defendants’ security deposit under a residential lease agreement with Steve Burgess, plaintiff. We reverse and remand the cause with directions.
Essentially, we must decide if a tenant’s tendering of notice to vacate leased premises unaccompanied by any action to pay late rent is sufficient to forfeit the tenant’s security deposit under K.S.A. 58-2550(d).
The undisputed facts reduced to their essence are as follows: Plaintiff, d/b/a Garden Spot Rentals, filed a limited action against defendants for various amounts due and owing upon their vacating property leased to them by plaintiff. Plaintiff alleged he and the defendants entered into a written residential lease agreement on April 1, 1990, and the defendants vacated the residence without giving 30 days’ written notice, thereby forfeiting their security deposit pursuant to K.S.A. 58-2550(d). Plaintiff further alleged that the defendants owed $669 in unpaid rent for February 1 through March 25, 1991, when they left the premises. Plaintiff requested this amount along with damages for various repairs he made to the property after the defendants left, for a total of $1,317. Plaintiff asked the district court to award him this total, the forfeited security deposit, and costs.
The defendants admitted entering into the lease agreement on April 1, 1990, and owing plaintiff $669 in unpaid rent when they quit the premises. Defendants specifically denied the allegation that their notice to vacate was insufficient. Furthermore, defendants filed a counterclaim for the return of their security deposit.
The lease before us established rent of $440 per month with rent being due on the first day of each month. The term of the lease was from April 1, 1990, through March 31, 1991. The defendants paid a security deposit of $400. The lease contained these provisions:
“2. LEASE AGREEMENT
“If notice is not given by either party by the end of the 11th month Contract will continue on a thirty day basis. Thirty days written notice must be given in order to terminate this Lease Agreement. All security deposits shall be forfeited and the Landlord may recover the rent due as if the deposit had not been applied or deducted from the rent due, if thirty days written notice is not given to terminate Lease. Notice must be (30) days prior to the next periodic rental due date. This (30) day notice requirement is effective as of the date of the agreement. It is not dependent upon the Tenant actually taking possession. In other words and by further clarification to terminate this lease, the Tenant must give (30) days notice even if the Tenant has not actually taken possession.
“4. SECURITY DEPOSIT
“Tenants [sic] hereby agrees to pay a security deposit of $400.00, to be refunded upon vacating, return of the key to the office and termination of this contract according to the terms herein agreed. This deposit will be held to cover any possible damages to the property. No interest will be paid on this money and in no case will it be applied by the Tenant to back or future rent. It will be held intact by Landlord until at least fourteen days after Tenants have vacated the property. Landlord will inspect the premises thoroughly and assess any damages and/or needed repairs. This deposit money minus any repairs, damages, charges and expenses of cleaning, will then be returned to Tenant with a written explanation of deductions, within thirty days after they have vacated the property.
“10. FORFEITURE
“THE TENANT MAY NOT APPLY OR DEDUCT ANY PORTION OF THE SECURITY DEPOSIT FROM THE LAST MONTH’S RENT OR USE OR APPLY SUCH SECURITY DEPOSIT AT ANY TIME IN LIEU OF PAYMENT OF RENT. IF TENANT FAILS TO COMPLY WITH THIS SECTION, THE SECURITY DEPOSIT SHALL BE FORFEITED AND THE LANDLORD MAY RECOVER THE RENT DUE AS IF THE DEPOSIT HAD NOT BEEN APPLIED OR DEDUCTED FROM THE RENT DUE.”
Ultimately, the district court found that plaintiff and defendants entered into a written rental contract providing for forfeiture of the security deposit. The court further found in paragraph 10 of the contract the parties contemplated circumstances under which the deposit could be forfeited, which are very similar to the circumstances described in K.S.A. 58-2550(d). Additionally, the court found the only way a tenant could act to forfeit a security deposit under this statute was “by conduct expressed or implied by not paying rent at the time the notice to terminate [is] given.”
The district court concluded that defendants simply sent notice of their termination of the lease without payment on the rent due and that notice without payment was sufficient to result in a forfeiture of the deposit under paragraph 10 of the lease and K.S.A. 58-2550(b) and (d). Additionally, the district court awarded plaintiff $1,153 in damages for repair and cleaning of the premises.
Before us, the defendants contend that K.S.A. 58-2550(d) requires that a tenant affirmatively act to apply the security deposit to rent due before it is forfeited. Defendants argue they only gave notice of their intent to vacate without affirmatively indicating that they intended their security deposit to be applied to rent they owed; therefore, the deposit was not forfeited. Plaintiff argues that pursuant to the language of the statute, the intent to apply the security deposit to rent due is properly inferred from a notice to vacate unaccompanied by payment of the rent.
Here, the defendants mailed to plaintiff on March 1, 1991, notice of their intent to vacate the leased premises. Not only did the defendants owe rent for the month of March on March 1, they were delinquent on part of the rent for the month of February. Yet they did not include any rent payment with their notice to vacate. Additionally, the parties also agree that the defendants did not otherwise attempt to pay rent due before leaving the premises.
Our standard of review is clear. Whether K.S.A. 58-2550(d) permits forfeiture of a security deposit under these circumstances is a question of statutory interpretation. “ ‘Interpretation of a statute is a question of law.’ ” Todd v Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court. ” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 58-2550 reads in pertinent part as follows:
“(b) Upon termination of the tenancy, any security deposit held by the landlord may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant’s noncompliance with K.S.A. 58-2555 and the rental agreement, all as itemized by the landlord in a written notice delivered to the tenant. If the landlord proposes to retain any portion of the security deposit for expenses, damages or other legally allowable charges under the provisions of the. rental agreement, other than rent, the landlord shall return the balance of the security deposit to the tenant within fourteen (14) days after the determination of the amount of such expenses, damages or other charges, but in no event to exceed thirty (30) days after termination of the tenancy, delivery of possession and demand by the tenant. If the tenant does not make such demand within thirty (30) days after termination of the tenancy, the landlord shall mail that portion of the security deposit due the tenant to the tenant’s last known address.
“(d) Except as otherwise provided by the rental agreement, a tenant shall not apply or deduct any portion of the security deposit from the last month’s rent or use or apply such tenant’s security deposit at any time in lieu of payment of rent. If a tenant fails to comply with this subsection, the security deposit shall be forfeited and the landlord may recover the rent due as if the deposit had not been applied or deducted from the rent due.”
“ ‘It is a fundamental rule of statutory construction to which all others are subordinate that the intent of the legislature governs when the intent can be ascertained.’ ” Martindale v. Tenny, 250 Kan. 621, 626, 829 P.2d 561 (1992).
“ ‘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.’ ” Todd v. Kelly, 251 Kan. at 516, (quoting Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 F.2d 791 [1975]).
In reading and construing the pertinent sections of K.S.A. 58-2550 together, we understand the legislature intended a security deposit to do just what its label indicates — secure the landlord from expenses remaining unpaid by the tenant after the tenant quits the premises. Subsection (b) of the statute allows a landlord to apply the security deposit to payment of accrued rent and to the amount of damages suffered as a result of a tenant’s noncompliance with duties imposed either by statute or the rental agreement. These damages may include the cost of cleaning and repairing the premises upon the tenant’s termination of the lease. See K.S.A. 58-2555. This security for the landlord is protected by subsection (d), which states the tenant forfeits the deposit if the tenant applies or deducts any portion of the deposit from the last month’s rent, or uses or applies the deposit at any time during the tenancy in lieu of payment of rent. Our Supreme Court recognized the significance of this protection in Clark v. Walker, 225 Kan. 359, 364-65, 590 P.2d 1043 (1979):
“In examining the forfeiture provision, it is evident that the legislature regarded the security deposit as an important source for the protection of the landlord. This is pointed out in the defendants’ brief in the following language:
‘The security deposit serves the widely understood and accepted function of guaranteeing that the landlord will have a fund to draw upon in the event of a breach by the tenant causing actual damages by way of unpaid rent, waste, or some other breach. The availability of the fund is guaranteed by the landlord’s possession of it.’
As the defendants apparently recognize, the landlord’s retention of a security deposit until the tenants have vacated the leased premises is an important protection of the landlord’s investment — as an immediate compensation for damaged property and as an incentive for the tenant to leave the premises in the same condition as he found them. Any diminution in the value or amount of the security deposit increases the landlord’s risk while decreasing the tenant’s incentive to return the property in a good condition.”
Both parties here cite and discuss Clark in support of their respective positions on whether delivery of notice to vacate without payment of rent due forfeits a security deposit under K.S.A. 58-2550(d). Clark involved a constitutional challenge to K.S.A. 58-2550(b) and (d).
The defendants argue the tenant in Clark affirmatively acted to apply the security deposit to the rent due by tendering a check for only the balance remaining after the deposit was deducted from the amount of monthly rent. Defendants further argue, in contrast, that they took no action to indicate their security deposit was to be applied to the rent they owed plaintiff. Plaintiff, on the other hand, argues the defendants’ silence is action similar to the tendering of the check in Clark from which the intent to apply the deposit to the rent may be inferred.
The Clark court, in discussing the constitutionality of K.S.A. 58-2550(d), said:
“Those persons who attempt to apply the security deposit against their obligation to pay rent are penalized. Without such a penalty, the landlord would be without a means of retaining the full security deposit until the termination of the tenancy. The tenant who abandons his apartment is not equally penalized, but then he is not attempting to stay in the apartment for the full term. ... If the so-called honest’ tenant attempts to apply his security deposit toward rent, the landlord is faced with the prospect of both having possible property damage and being forced to initiate the process of having the tenant evicted.” 225 Kan. at 366-67.
The Clark court went on to say that “the statutory forfeiture of the security deposit does . . . impose a drastic remedy and must be strictly construed. Subsection (d) . . . provides that ‘the security deposit shall be forfeited’ if the tenant attempts to apply the deposit toward the payment of rent.” The court held that a forfeiture clause must be contained in the rental agreement to be effective against a tenant. Because the agreement involved in Clark contained a provision only prohibiting the application of the security deposit to rent due, but not for its forfeiture if such was done, tenant’s deposit was not forfeited. The court awarded judgment for landlord in the amount of $20, the total of the balance due on the rent after application for the security deposit and a late payment fee. 225 Kan. at 367-68.
We believe because the remedy sought here is a harsh one and must be strictly construed, the statutory forfeiture provision of K.S.A. 58-2550(d) requires affirmative action on the part of the tenant and not simply inaction or silence such as delivering notice to vacate without any payment for rent then due. The tenant in Clark did affirmatively act to indicate his intent to apply the security deposit to the last month’s rent. He not only tendered a check for the balance of the rent due after deducting the amount of the deposit, he expressly discussed his reasons for doing so with the building manager. The defendants here did nothing in reference to their security deposit, either when they gave notice or during the remainder of their leasehold. Under this circumstance, it would be unjustly harsh for us to conclude defendants intended to forfeit their deposit. Equally, it would be unjust under this circumstance for plaintiff to receive a $400 windfall when he has already obtained a judgment for the rent due and damages to the premises. We are persuaded the legislature intended that K.S.A. 58-2550(d) be construed to require an affirmative act by a tenant in applying a security deposit to rent due before the deposit is forfeited.
Plaintiff incidentally argues to us that defendants forfeited their security deposit by failing to give plaintiff timely notice of their intent to terminate the lease.
We need not reach that issue because the district court made no such finding on whether the defendants’ notice to vacate mailed March 1, 1991, was untimely and caused forfeiture of their security deposit. As the district court made no findings regarding this issue and no objection to this omission appears in the record on appeal, the omission in the district court’s findings presents nothing for appellate review. First American Investment Group, Inc. v. Henry, 11 Kan. App. 2d 671, 678, 732 P.2d 792 (1987).
We reverse the judgment declaring the defendants forfeited their $400 security deposit and remand the cause with instructions that the district court order the security deposit be applied to plaintiff’s judgment for unpaid rent and damages.
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Larson, J.:
James W. Schwien appeals the judgment of the trial court in this divorce action, contending (1) abuse of discretion in not allowing credit to each party for the value of nonmarital property brought into the marriage or received by gift; (2) abuse of discretion in the division of the parties’ marital property; and (3) abuse of discretion in ordering him to pay $800 per month child support.
The issues of interest in this case involve an attempt to require credit to be given to each party for the value of nonmarital property brought into the marriage and a ruling as to when assets must be valued, but it is necessary for our decision to set forth in detail the facts related to this failed marriage.
The marriage of Ellen and James Schwien in 1978 united a young man starting a farming business with a school teacher. The marriage resulted in the birth of two children, J.W.S. and R.C.S., currently ages 10 and 8.
At the time of the marriage, James owned a remainder interest in 240 acres of rural real estate, livestock, equipment, and the right to occupy a residence rent-free for 10 years resulting from the repair and improvement of the property. Ellen had $2,000 in a certificate of deposit and a bond.
James worked for his father and commenced farming independently in 1980, utilizing his father’s fuel and equipment for three years during which time Ellen worked part-time and assisted James.
In November of 1983, James and Ellen entered into an agreement with James’ father, mother, brother, and sister-in-law that created Schwien Farms Partnership of which James and Ellen each owned a one-sixth interest. Ellen assisted with the partnership bookkeeping. James and Ellen rented land and farmed independently of the partnership as well.
Unfortunately, the marital relationship soured, and on July 11, 1989, Ellen filed for divorce. Ellen moved from the farm to a residence in Russell and worked when she could as a paraprofessional in the school system.
The trial was held on July 23, 1990. James and Ellen each presented evidence concerning the values of their one-third interest in Schwien Farms Partnership, assets and liabilities of their independent farming operation, household goods, vehicles, stocks, commodities, investments, and bank accounts. James valued all marital property as of the date the parties separated. Ellen’s evidence provided a partnership valuation as of December 31, 1989, and the remaining marital estate as of the date of trial.
The parties agreed with the appraisal of Don Haberer that the Schwien Farms Partnership machinery had a value of $200,275, but as to most other assets and liabilities, the testimony and contentions of the parties were divergent.
Ellen testified that James’ remainder interest in the 240 acres of rural real estate was worth $24,800. She claimed no interest in the property and proposed it be set aside to James in the property division. James presented no evidence as to the value of his remainder interest in this property.
James testified that prior to the marriage he owned livestock and equipment worth $10,100; that the prepaid lease under which the couple could live rent free for 10 years was valued at $15,195; that during the marriage he and Ellen had received cash gifts from his parents totalling $3,000; and both had received gifts of fuel and use of equipment valued at $26,637 from his parents during the years 1980 through 1983 to start their separate farming operation. The trial court allowed this testimony over Ellen’s objection and James requested credit in the amount of $54,932 for this nonmarital property in the division of assets.
Ellen did not request credit be given to her for premarital assets in the property division.
Testimony showed Ellen received stock, money market accounts, investments, and bank accounts worth approximately $30,000 on July 11, 1989. Ellen used $7,852 to purchase household items necessary for the Russell home and $503 per month to pay monthly expenses. The assets remaining were worth $16,214 at the time of trial. Ellen had received no temporary maintenance, but James was paying her $800 per month child support at the time of trial.
James owned livestock at the time of separation, which he opined was worth $49,550 while Ellen’s testimony showed a value of $52,450. He testified his shop equipment was worth $615 while she claimed it to be worth $3,415. Likewise, he claimed livestock equipment valued at $350, which she valued at $750.
Both agreed that James individually owned grain on hand worth approximately $3,100. Ellen included on an exhibit, which was admitted without objection, hay owned by the parties valued at $12,000. James now claims on appeal that this hay does not exist.
Testimony showed James held patronage refunds worth approximately $4,100, that he had a pickup worth $2,000, cycles worth $500, and that Ellen had a 1983 Chevrolet Caprice in her possession worth $3,500. The parties disagreed concerning the value of household items. James claimed they were worth $6,800 of which Ellen was claimed to have taken $5,600 in value. Ellen claimed the items were worth $3,000 and that they had been evenly divided.
The largest bone of contention was over the value of a one-third interest in the Schwien Farms Partnership. Ellen’s partnership valuation expert was a certified public accountant who opined the one-third interest had a $77,201 value by capitalizing the partnership’s assumed cash flow. The value was computed by taking an average cash flow of $89,437 before debt reduction, deducting an assumed and fictitious salary of $24,000 (although evidence showed the partnership paid no salaries and the annual withdrawal to all partners was in the area of $60,000 annually) and capitalizing $65,437 over seven years at 11.5% interest. The resulting figure was increased by the year end cash balance and value of the co-operative patronage accounts and then reduced by the indebtedness of the partnership plus a further reduction for deferred federal and state income tax because the equipment had been depreciated substantially below its market value.
The validity of this valuation is questionable because it is based on an assumed salary which, if lowered, results in a higher valuation and, if increased, results in a lower valuation. There was no substantial competent evidence as to the basis for the usage of the assumed salary.
The valuation of Schwien Farms Partnership was further complicated because of the failure of its 1989 wheat crop. The partnership had followed a practice of selling the previous years’ crops in a subsequent year. It was paid approximately $66,000 in crop insurance and government deficiency payments in 1989, but the partnership was not required to report these amounts for 1989 income tax purposes because this represented what would normally have been 1990 crop sales.
James’ certified public accountant valued the Schwien Farms Partnership as of the date of separation of the parties on July 11,
1989. He utilized the liquidated value of the assets. He used $200,275 as the value of the farm equipment, assumed a disposition cost of 6%, added bank accounts of $13,832, grain on hand of $56,914, and 50% of the patronage accounts, or $10,967, for total assets of $269,971. From this amount, he reduced the notes payable of $74,000, accounts payable of $18,079, and accrued interest expense of $8,266, for total partnership liabilities of $100,345. This resulted in a net worth of the partnership of $169,626, of which James’ and Ellen’s one-third share was testified to be $56,542 before application of deferred tax liability on appreciation, which was computed to be $21,385, for a net realizable value of the one-third interest in the partnership of $35,157.
Cross-examination of James showed that he had deposited almost $40,000 in his personal account in the first six months of
1990. This appeared to have come from distributions from Schwien Farms Partnership and the sale of his separately held assets. He further testified he had on hand 8,511 bushels of wheat at the time of trial as a result of the 1990 harvest, and it was shown that at the time of trial the partnership had on hand approximately 18,000 bushels of wheat. The indebtedness of the partnership had changed by the time of the trial and the partners had, without consultation with Ellen, purchased a $52,000 tractor, which it paid for by trading in a tractor worth $14,000 and assuming a $39,000 loan.
This confusing factual scenario was further complicated by the parties utilizing evidence of three different dates of valuation with no attempt to provide the trial court with a reconciliation thereof.
The trial court granted a divorce to the parties on the basis of incompatibility; granted joint custody of the minor children with Ellen as the residential parent and reasonable visitation to James; ordered James to continue paying $800 per month child support; and then took the issues of permanent child support, division of property, and attorney fees under advisement.
The trial court issued its opinion on March 27, 1991, in which each party was given the personal property in their respective possession. James was given all of the farming operations and his interest in Schwien Farms Partnership. He was ordered to assume all liabilities and pay Ellen a cash settlement of $90,000 in monthly installments of $1,500 per month until paid in full. James was further ordered to continue to pay $800 per month child support. Each party was ordered to pay their respective attorney fees.
The trial court placed a value of $6,500 on the household items, and granted one-half that value to each party. Ellen was given the remaining stocks, bonds, and bank accounts in her possession with the value of $16,564.71. James received all the remainder interest in the real estate, which the court valued at $40,000. The trial court further found that James was to receive the shop equipment, farm equipment, cattle equipment, cattle, grain, and one-third of the farm partnership, which the court valued at $200,000. The trial court’s order made James responsible for the liabilities, which were found to be $60,000, leaving James with assets worth $180,000 according to the trial court’s calculations. In order to balance the assets, the trial court ordered James to make the payment described above, which the court indicated would leave him with a net value of properties of $100,000 and Ellen with a net value of $109,814.71.
James’ motion to alter and amend judgment was denied on August 5, 1991. This appeal followed.
Did the trial court abuse its discretion in not allowing credit to each party when dividing the property for the value of nonmarital property brought into the marriage or received by gift during the marriage?
Although the trial judge properly allowed James to present evidence of the value of nonmarital property brought into the marriage and received by gift during the marriage, he contends neither was given any consideration by the court in arriving at property settlement and division.
What James contends is an abuse of discretion is the trial court’s failure to adopt the reasoning of guidelines of several of our metropolitan counties, which provide that nonmarital property should be restored to the spouse bringing it into the marriage, with any appreciation or enhancement of value occurring during the marriage being credited equally to the parties.
The well-known change in our divorce law made by the Kansas Legislature in 1963 was recognized in Zeller v. Zeller, 195 Kan. 452, 459, 407 P.2d 478 (1965), when the court stated:
“The significant change in the law regarding division of property is that the court is no longer required to set aside to the wife the separate property which she brought to the marriage or acquired with her own funds after the marriage. The court now is given authority to divide all of the property owned by the parties, regardless of the source or manner in which acquired, in a just and reasonable manner.”
This decision recognized a legislative statement that it is no longer necessary to return nonmarital property to a wife, although we recognize many trial judges now return nonmarital property or an amount equivalent in value to the respective spouse. What the legislature did in effect was to provide a level playing field so that wives and husbands were subject to the same rules.
In making a division of property, the trial court, pursuant to K.S.A. 1991 Supp. 60-1610(b)(l), is obligated to consider
“the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property, family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property.” (Emphasis added.)
It is significant that K.S.A. 23-201(b), which applies to this issue, states in relevant part:
“All property owned by married persons . . . whether described in subsection (a) [premarital property and property received during the marriage' by gift or inheritance] or acquired by either spouse after marriage . . . shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce. . . . Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto.”
K.S.A. 1991 Supp. 60-1610(b)(l) states: “The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses’ joint efforts.” A trial court is not obligated to award to each party all property owned by such party prior to the marriage, or property inherited or received by gift during the marriage. McCain v. McCain, 219 Kan. 780, Syl. ¶ 3, 549 P.2d 896 (1976). See 1 Elrod, Kansas Family Law Handbook § 10.011 (rev. ed. 1990).
Our scope of review of a division of property is well known. Trial courts are vested with broad discretion which will not be disturbed on appeal absent a clear showing of abuse. Powell v. Powell, 231 Kan. 456, Syl. ¶ 1, 648 P.2d 218 (1982).
In this case, it is clear that all of the gifts were made equally for the benefit of both James and Ellen during the marriage and refusal to give only James credit for such gifts is logical.
It was reasonable to award James his remainder interest in the rural real estate although the current value assigned to this asset by the trial court had no evidentiary basis. James failed to provide any evidence of the value of this property at the time of the marriage and, in fact, it has been of no economic benefit to either party during the marriage because James’ father has continued to enjoy the benefits of his life estate in the property.
The parties may have received a benefit from not paying rent for a 10-year period, but the valuation is questionable' and the trial court’s refusal to place $15,195 in James’ pocket before dividing the rest of the property is understandable.
It is likewise not an abuse of discretion for the trial court to refuse to credit James with the premarital value of the livestock and equipment before dividing the rest of the marital property.
We do not question the importance of guidelines or that they may represent what should be the reasonable expectations of the parties to a marriage. What we are not willing to do is require a trial court to credit a spouse with the entry value of property brought into the marriage or acquired by gift during the marriage before the remaining net worth of the parties is divided.
Unless and until guidelines are adopted by the Kansas Supreme Court of required application throughout the state (as exists with respect to child support guidelines), it is not an abuse of discretion for a trial court to refuse to restore nonmarital property to either spouse or to give direct credit for gifts acquired during the term of the marriage.
The trial court is obligated under K.S.A. 1991 Supp. 60-1610(b)(1) to consider “the time, source and manner of acquisition of property,” which appears to have been done in this instance. The court considered the 11-year marriage, the future earning capacities of both parties, and that both parties worked during the marriage in attaining the estate they acquired. This is reflected in the trial court’s memorandum of decision. Reasonable persons would agree with the trial court’s handling of this issue.
Did the trial court abuse its discretion in the division of the parties’ marital property?
This issue first raises the question of the dates used by the parties and the trial court in the division of the marital estate. James argues the court correctly found all property was divided as of the separation date, but erred in making its division thereof. For example, he contends the trial court should have valued the stocks and investments awarded to Ellen at their separation date value of $30,715 instead of the $16,565 value as of the trial date.
We were cited no Kansas statute or case which specifically commands the date that should be utilized in the valuation and division of the marital estate. There is no universal rule applied in the United States. Some states apply the date of separation, some require valuation at the time of trial or at the time the divorce is granted, and others allow the time of valuation to be decided by the trial court as the facts in each case dictate. One of the problems in this case was that the parties were extremely adversarial and utilized different valuation dates, which made the trial court’s decision difficult.
James relies on Taylor v. Taylor, 436 N.E.2d 56 (Ind. 1982); In re Marriage of Halverson, 230 Mont. 226, 749 P.2d 518 (1988); and Johnson v. Johnson, 771 P.2d 696 (Utah App. 1989), to support his contention that the parties’ marital property should have been valued as of July 11, 1989, the date the parties separated and the divorce action was filed.
In Taylor, it was not found to be an abuse of discretion for the marital home to be valued at the time of separation rather than at the time the divorce was decreed almost five years later because the property had greatly appreciated in value as a result of the wife’s attention. 436 N.E.2d at 59.
In Halverson, the general rule was stated that proper distribution of marital property requires a finding of net worth at or near the time of dissolution, but created an exception when the application of the rule would create an inequitable disposition. 230 Mont, at 230.
In Johnson, 771 P.2d at 699, the trial court’s decision was that a wife was not entitled to 50% of her husband’s post-separation income, but in Utah marital assets are valued as of the date the divorce is granted. Berger v. Berger, 713 P.2d 695, 697, (Utah 1985).
In several of our sister states, marital property is valued at the time of trial or when the divorce is granted. See, e.g., Ogard v. Ogard, 808 P.2d 815, 819-20 (Alaska 1991); In re Marriage of Brooks, 138 Ill. App. 3d 252, 260, 486 N.E.2d 267 (1985), Holbrook v. Holbrook, 103 Wis. 2d 327, 334, 309 N.W.2d 343 (1981).
An excellent discussion of this problem is found in Goldberg, Valuation of Divorce Assets § 1.10 (1984), which states:
“Even though the majority of jurisdictions which have addressed the issue of when assets should be valued have chosen the termination date as the target date for valuations, many other jurisdictions have been innovative in their approach to this problem. For example, some hold that where hearing on disposition of marital property takes more than one day and a substantial interval occurs between hearing days, the ‘date of the hearing’ for purpose of a statutory requirement that marital property and debts be valued as of ‘the date of the hearing’ (if such hearing precedes the date of the decree) is the day when the last evidence is presented on the matter. Some courts have taken a simple approach and tried to value the assets as nearly as practicable to time of trial, or have simply chosen as the proper date for valuation that of the beginning of the dissolution action.”
Golden, Equitable Distribution of Property § 7.01 p. 251 (Turner 1992 Supp.) states:
“A growing number of courts are refusing to establish any one mandatory date of valuation. These courts recognize that different dates should control in different cases and they leave the decision to the trial court’s discretion. [Citations omitted.]
“Flexible valuation date jurisdictions generally prefer to value the property as of the date of trial, in order that the court’s division of property be based upon the most current available financial information. [Citations omitted.]”
Golden recognizes several factual situations may arise in which property will be valued earlier than the trial date: when the parties have a lack of financial involvement with each other after the separation, when one party dissipates marital assets, when one spouse deliberately delays the divorce, or when marital assets appreciate during separation due to the efforts of one spouse. Golden, Equitable Distribution of Property § 7.01 p. 252.
In several states, the trial court is given the discretion to value the property at the time of separation, at the time the divorce petition is filed, or at the time of the divorce hearing. See Bachtle v. Bachtle, 494 A.2d 1253, 1256 (Del. 1985); Eyler v. Eyler, 492 N.E.2d 1071, 1074 (Ind. 1986); Thompson v. Thompson, 189 Mich. App. 197, 199, 472 N.W.2d 51 (1991); Bednar v. Bednar, 193 N.J. Super. 330, 332, 474 A.2d 17 (1984); Sergi v. Sergi, 351 Pa. Super. 588, 506 A.2d 928 (1986).
In Sergi, the Pennsylvania Superior Court stated:
“[W]e do not attempt to establish a valuation [date] to be used in every situation. To recognize a specific valuation date as a matter of law would deprive the trial court of the necessary discretion required to effectuate economic justice.” 351 Pa. Super, at 594.
■ In In re Marriage of Harrison, 13 Kan. App. 2d 313, 315-16, 769 P.2d 678 (1989), we held military retirement pay is marital property subject to division upon dissolution of the marriage. In discussing the two methods commonly used to value a retirement benefit, the present cash value and the reserve jurisdiction method, we expressed no absolute rule as to when the assets had to be valued. The finality of litigation makes it desirable to value retirement benefits at the time a divorce is granted, but we have not in any previous case set down any hard and fast rule that the trial court must follow.
It is essential, however, that a trial court be presented with a common valuation date or testimony of changes in valuation if different dates are being used by both parties as was the case herein. In Bednar, the Superior Court of New Jersey concluded that “principles of equity required a common evaluation date for all.marital assets. . . . There is no absolutely iron-clad rule for determining the date of evaluation but use of a consistent date is preferable.” Bednar, 193 N.J. Super, at 332. Some states do allow the trial court to value different marital assets at different times. See, e.g., Halverson, 230 Mont, at 230; Rosenberg v. Rosenberg, 145 App. Div. 2d 916, 918, 536 N.Y.S.2d 605 (1988). See also Golden, Equitable Distribution of Property § 7.01 p. 256 (“Flexibility to value different assets on different dates is important, because the factors . . . may not be the. same for all assets.”).
In this case the parties should use a comparable date for valuation of the partnership to insure fairness and consistency because, with 1989 being a crop failure year and a bountiful wheat crop having been harvested in 1990 just prior to the trial, the farming operations may well have had materially different values based upon the time selected.
We announce no hard and fast rule that requires application in every case. We believe that when the time of valuation becomes an issue in a contested case, the trial court should set such time at the pretrial. This will assist the court to “make a just and reasonable division of property.”
We reverse this case because the use of divergent valuation dates resulted in the absence of substantial competent evidence to support the trial court’s division of property. “Substantial evidence is evidence which possesses both relevance and substance and which famishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.] 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. [Citation omitted.]” Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
We direct that a common valuation date be agreed upon or directed by the trial court and evidence on retrial be presented with a consistent valuation time. If assets are utilized for living purposes or to purchase other assets, the court should take into consideration the value of the assets at the time of separation as well as those available at the time a distribution is being ordered.
James’ arguments that some of the trial court’s other findings are not supported by substantial competent evidence also have merit. The values assigned to marital property must be within the range of evidence before the court. Pennock v. Pennock, 356 N.W.2d 913, 914 (S.D. 1984).
The trial court valued thé shop equipment, farm equipment, cattle equipment, cattle, grains, and one-third partnership inter est at a lump sum of $200,000. The evidence produced at trial does not support this valuation. By her evidence and testimony, Ellen valued the property in question at $140,021, while James’ testimony and exhibits placed a value of $91,375 on these assets.
A review of the record reveals Ellen included both her value of the one-third interest in the partnership computed based upon its available cash flow and then added thereto a one-third value of the partnership assets. This represents a doubling of the valuation. Ellen’s argument that the trial court could easily have valued the property at over $200,000 is erroneous. She includes deferred salaries without evidentiary basis; a tractor that actually had no effect on valuation; grain in storage based on different dates and without any tax effect; and hay which may be of questionable value, although James did not properly challenge its basis.
James did not place a value upon his remainder interest in the real property. Ellen testified the remainder interest was worth $24,800, which does not support the trial court’s valuation of $40,000.
Further, there is a difference in the parties’ valuation of the liabilities, with Ellen valuing them at $63,835 and James at $40,434, although the trial court’s valuation of $60,000 in this instance is within the testimony.
An analysis of the record shows the trial court’s decision was not based upon substantial competent evidence. The trial court’s findings are in part in excess of the evidence offered by either party, and relying upon those findings to order a cash payment from James to Ellen is an abuse of discretion and reversible error.
James contends the trial court should have equally divided the marital estate. We stated in Grant v. Grant, 9 Kan. App. 2d 671, Syl. ¶ 2, 685 P.2d 327, rev. denied 236 Kan. 875 (1984), that: “Kansas law does not require an equal split of all property acquired during the marriage, but rather gives the trial court discretion to consider all property to arrive at a just and reasonable division.” See In re Marriage of Sedbrook, 16 Kan. App. 2d 668, 827 P.2d 1222 (1992).
With a new trial being ordered, we hold this is not one of those “extremely gross and rare situations” where financial penalties should be imposed on the basis of fault. See In re Marriage of Sommers, 246 Kan. 652, 657, 792 P.2d 1005 (1990). Evidence of fault should not be considered in the retrial of this case.
Did the trial court abuse its discretion by ordering James to pay $800 per month child support?
At trial, both parties presented child support worksheets to the court. Ellen’s calculations showed James’ net parental child support obligation to be $1,701 per month, while James’ figures showed his obligation to be $387 per month. James’ contention that the trial court abused its discretion by ordering him to pay $800 per month child support without factual findings on a proper child support worksheet has merit.
In In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, Syl. ¶ ¶ 1, 2, 809 P.2d 1251 (1991), Judge Lewis of our court opined:
“The Kansas Child Support Guidelines established by Kansas Supreme Court Administrative Order No. 75 (1990 Kan. Ct. R. Annot. 56) must he followed by all judges and hearing officers in establishing child support orders in cases where the guidelines apply.
“A rebuttable presumption of the appropriate amount of child support to be ordered is created by the amount arrived at through the mandatory use of the Kansas Child Support Guidelines.” (Emphasis supplied.)
We held in Schletzbaum that the failure to follow the guidelines is reversible error and in the absence of the trial court making factual findings we are unable to know if it has done so.
There was highly conflicting testimony as to the income that James received during the first six months of 1990, but sufficient evidence was presented to sustain the trial court’s order had the required child support worksheet been prepared to show the guidelines were followed.
The parties suggested to us on oral argument that there may have been a material change in circumstances which has occurred between the time of trial and the date of this opinion.
The child support award is reversed with instructions to the trial court to make the necessary findings and determine the awards required under the guidelines as of the time of trial as well as at the time of the new trial, which is required under our ruling herein.
Reversed and remanded for retrial in accordance with the instructions of this opinion.
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Becker, J.:
Northwest Kansas Production Credit Association (NWK) appeals the district court’s decision enforcing an artisan’s lien in favor of Double S, Inc., (Double S) against two pieces of farm equipment sold by NWK at a foreclosure sale. NWK contends the administration of the oath as part of the lien statement did not meet statutory requirements. We affirm.
NWK held a security interest in two tractors owned by a farm management company. Double S leased the two tractors and repaired them while the tractors were in its possession. Those repairs are the basis of the artisan’s lien.
Double S surrendered possession of the tractors to NWK and filed its lien statement within 90 days. The tractors were sold at a sheriff’s sale, foreclosing on NWK’s security interest. NWK was informed of the lien prior to the sheriff’s sale. The district court granted summary judgment in favor of Double S.
NWK first contends that the lien statement filed by the president of Double S was not given under oath as required by K.S.A. 1991 Supp. 58-201 because the statement was limited to the affiant’s knowledge and belief.
Double S’s lien statement contained the following qualified acknowledgment: “I, Kevin L. Stoppel, President of Double S Inc., being first duly sworn, upon oath say that I am the above named claimant within named; that the within statement of lien is true and correct, to the best of my knowledge and belief.” NWK argues that, because Stoppel stated the statement was true “to the best of my knowledge and belief,” the certification was qualified and, therefore, not given under oath.
K.S.A. 1991 Supp. 58-201 provides:
“If such property shall come into the lien claimant’s possession for the purpose of having the work, repairs or improvements made or the equipment replaced, added or installed thereon, such lien shall be valid as long as the lien claimant retains possession of the property, and the claimant of the lien may retain the same after parting with the possession of the property by filing within 90 days in the office of the register of deeds, under oath, a statement of the items of the account and a description of the property on which the lien is claimed, with the name of the owner thereof, in the county where the work was performed and in the county of the residence of the owner, if such is known to the claimant.”
NWK argues that the requirement in this statute that the lien statement be made “under oath” should be interpreted the same as the requirement for verification in K.S.A. 60-1102, governing mechanics’ liens, and K.S.A. 55-209, governing mechanics’ liens in oil and gas cases. NWK extends the argument to conclude that the present lien statement is invalid because this court has concluded that similar qualifying language invalidated the verification required by these two statutes. Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 102, 692 P.2d 397 (1984) (applying verification required by K.S.A. 60-1102), and DaMac Drilling, Inc. v. Shoemake, 11 Kan. App. 2d 38, 42-44, 713 P.2d 480 (1986) (applying the verification requirement of K.S.A. 55-209).
Verification has been defined as “an affidavit attached to a statement as to the truth of the matters therein set forth.” D. J. Fair Lumber Co. v. Karlin, 199 Kan. 366, 369, 430 P.2d 222 (1967); and Trane Co. v. Bakkalapulo, 234 Kan. 348, 352, 672 P.2d 586 (1983). This court defined an oath in the context of the mechanic’s lien statute as
“ ‘a declaration or promise made by calling on God to witness what is said.’ [Citation omitted.] Oath is also defined as ‘[a]ny form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully’ and as ‘[a]n affirmation of truth of a statement, which renders one willfully asserting untrue statements punishable for perjury.’ ” Kansas Lumber Co. v. Wang, 12 Kan. App. 2d 20, 23, 733 P.2d 1266 (1987).
K.S.A. 1991 Supp. 21-3805 defines perjury as “willfully, knowingly and falsely swearing, testifying, affirming, declaring or subscribing to any material fact upon any oath or affirmation legally administered in any cause, matter or proceeding before any court, tribunal, public body, notary public or other officer authorized to administer oaths.”
The difference in these definitions suggests that a verification is a type of statement given under oath where the declarant must not only refrain from making a knowingly false statement, but he must also have affirmative knowledge of the statement’s truthfulness. This conclusion is consistent with the approach taken by the Kansas Supreme Court in State v. Kemp, 137 Kan. 290, 20 P.2d 499 (1933). In Kemp, R.S. 1923, 60-734 required pleadings to be verified by an affidavit. R.S. 1923, 60-732 provided: “ ‘The affidavit shall be sufficient if it states that the affiant believes the facts stated in the pleading to be true.’ ” 137 Kan. at 293. The defendant Kemp was convicted of perjury for false statements that were asserted in his answer in a mortgage foreclosure case. Kemp contended that he was not under oath because the verifying affidavit concluded that the statements were true “ ‘according to his best knowledge and belief.’ ” 137 Kan. at 291. The court interpreted the statement to mean that the defendant believed the facts stated in the pleading were true and concluded that the defendant could be subjected to perjury, although the statement was based merely on belief rather than upon specific knowledge of the underlying facts. 137 Kan. at 293-94.
K.S.A. 1991 Supp. 58-201 does not require the lien statement to be verified. Double S’s statement was given under oath as required by the statute, although it was based merely on the declarant’s belief and knowledge without asserting that the declarant had actual knowledge of the underlying facts. To conclude otherwise would read a requirement of verification into K.S.A. 1991 Supp. 58-201 that is not present.
Based on the plain language of the statute, K.S.A. 1991 Supp. 58-201 does not require verification, and this court will not impose that requirement on the parties. The lien statement was given under oath, although the qualifying language that it was based only on declarant’s knowledge and belief prevented it from being verified.
NWK next contends Kevin Stoppel, the president of Double S, failed to comply with the formalities of K.S.A. 54-102 and K.S.A. 54-104 when executing the oath and, therefore, the lien is defective.
At the hearing on Double S’s motion for summary judgment, Stoppel admitted that he did not comply with the statutory formalities of K.S.A. 54-102 and K.S.A. 54-104 for executing an oath. Stoppel stated that his attorney explained that Stoppel had to verify that the statements in the lien were true and that he was under oath. Stoppel also stated that he understood that he was under oath as if he were on the witness stand.
The parties cite two different lines of cases to support their conflicting conclusions. NWK relies upon a series of driver’s license revocation cases culminating in Dewey v. Kansas Dept. of Revenue, 11 Kan. App. 2d 72, 713 P.2d 490 (1986). Prior to 1985, K.S.A. 8-1001 required an officer to make a report “verified on oath” to the Division of Vehicles if a person refused to submit to a breath or blood alcohol test. K.S.A. 8-1001(c) (Ensley). In 1985, the legislature deleted this section from K.S.A. 8-1001 (L. 1985, ch. 48, § 3), and enacted K.S.A. 1985 Supp. 8-1002(c)(2), which provided that certification could be accomplished by merely signing the report without any acts of oath, affirmation, acknowledgment, or execution. L. 1985, ch. 50, § 2. This provision is currently found in K.S.A. 8-1002(b). In Dewey, this court relied upon this statutory change to conclude that prior to 1985 the officer s certification was insufficient if the officer did not comply with the statutory formalities of K.S.A. 54-101 et seq. when executing the oath. 11 Kan. App. 2d at 74.
Double S relies on a series of perjury cases stemming from State v. Kemp, 137 Kan. 290. In Kemp, the court concluded that the defendant could be charged with perjury for statements contained in an affidavit verifying pleadings even though the defendant did not comply with the statutory formalities of R.S. 1923, 54-102 and R.S. 1923, 54-104 when executing the oath. In its conclusions, the court stated:
“The notary had before him the certificate to be executed, which if executed would declare Kemp was sworn. The notary executed the certificate. Manifestly, both parties intended that out of Kemp’s visit to the notary there should come what would have the effect of administration of an oath; and the court holds that in the absence of clear proof the ceremony, or lack of ceremony, was designed by the participants to leave Kemp unsworn, the legal effect of what occurred was the same as if Kemp was sworn according to formalities prescribed for administration of an oath.” 137 Kan. at 292-93.
This language has been followed in State v. Seven Slot Machines, 203 Kan. 833, 457 P.2d 97 (1969), cert. denied 396 U.S. 1037 (1970), and State v. Anderson, 178 Kan. 322, 285 P.2d 1073 (1955). Following these cases, because the lien statement was notarized and Stoppel signed it under oath, it should be considered as having been given under oath unless it is proven that the lack of ceremony was intended to leave Stoppel unsworn.
It should be noted that in 1989, after the lien statement in this case was signed, the legislature enacted K.S.A. 1991 Supp. 53-601, which allows a statement subscribed by the person as true under the penalty of perjury to have the same force and effect as a sworn written declaration, verification, certificate, statement, oath, or affidavit. L. 1989, ch. 93, § 1. The legislature’s intent in enacting K.S.A. 1991 Supp. 53-601 in 1989 was to codify the ruling of State v. Kemp. K.S.A. 1991 Supp. 53-601(c) specifically provides that notarial acts performed prior to the effective date of this statute shall not be affected by the statute.
Notwithstanding the provisions of subsection (c), the same result is reached in this case because the notarial acts are controlled by the principle set forth in Kemp, which existed at the time the lien was executed.
Stoppel testified that, when he executed the lien statement, he understood the statement was true and understood that he was under oath. The lien statement is valid notwithstanding the absence of the statutory formalities.
Affirmed.
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Davis, J.:
The natural father, K.P., appeals the severance of his parental rights to his minor child, D.V., claiming that (1) hearsay evidence was erroneously admitted, (2) the evidence was insufficient, and (3) no adjudication was made as to him that his child was a child in need of care. We affirm.
D.V. was bom to C.V. and K.P. in 1982. In December 1986, D.V. was adjudicated a child in need of care. The allegations in that petition concerned the natural mother’s conduct only. K.P. was not present at the hearing, although he was represented by counsel. In 1987, after efforts failed to reintegrate D.V. into the natural mother’s home, the child was placed temporarily in K.P.’s care on a trial basis. The child stayed with K.P. in Arizona for about one and one-half years.
In January 1989, the court ordered the child’s return to the custody of Kansas officials. After a hearing at which K.P. appeared in person and with counsel, the court severed his parental rights.
Hearsay Evidence
K.P. claims that the court erroneously admitted an SRS caseworker’s testimony about a conversation that took place between D.V. and the SRS caseworker during the return trip from Arizona to Kansas. The evidence was admitted pursuant to K.S.A. 1991 Supp. 60-460(dd), which provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
(dd) In a criminal proceeding or a proceeding pursuant to the Kansas juvenile offender s code or in a proceeding to determine if a child is a child in need of care under the Kansas code for care of children, a statement made by a child, to prove the crime or that a child is a juvenile offender or a child in need of care, if:
(1) The child is alleged to be a victim of the crime or offense or a child in need of care; and
(2) the trial judge finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable and the child was not induced to make the statement falsely by use of threats or promises.”
K.P. does not challenge the adequacy of the hearing, the court’s findings regarding the witness’ unavailability, or the statement’s reliability. He claims only that the exception does not apply because it was admitted during a severance hearing, not a pro ceeding to determine if the child was a child in need of care as set forth in the statute.
In support of his position, K.P. cites In re Mary P., 237 Kan. 456, 701 P.2d 681 (1985), in which the court held that the exception as it existed then did not apply to proceedings under the juvenile offenders code. The court noted that the statute was clear and unambiguous and by its terms applied only to three proceedings: criminal proceedings, proceedings to determine if a child was deprived, and proceedings to determine if a child was in need of care. The court held that the exception did not apply to juvenile offender proceedings. 237 Kan. at 458-59. K.P. therefore claims that because K.S.A. 1991 Supp. 60-460(dd) does not expressly deal with proceedings to terminate parental rights, the statute clearly and unambiguously does not apply to such proceedings.
Such a construction is entirely too narrow. We believe that the legislature intended to include severance proceedings within the context of its statement that such exception applies to child in need of care proceedings under the Kansas Code for Care of Children.
The statutory provisions for termination of parental rights, K.S.A. 38-1581 et seq., are part of the Kansas Code for Care of Children, K.S.A. 38-1501 et seq. The termination statutes are part of the same statutory scheme as the statutes authorizing proceedings to adjudicate a child in need of care. Severance proceedings need not be separate proceedings at all, but may be a component of child in need of care proceedings. K.S.A. 38-1581 permits a party to request termination of parental rights either by separate petition or in a motion made in proceedings under the Code. That a child in need of care proceeding and a termination proceeding are both part of the same statutory scheme is apparent in that a child in need of care adjudication is required to terminate parental rights. K.S.A. 1991 Supp. 38-1583(a). The two proceedings are statutorily intertwined under the Code for Care of Children.
In the case of In re Mary P., the Supreme Court was faced with a very different situation. The juvenile offender code expressly stated that proceedings under it were not “ ‘deemed or held to import a criminal act on the part of any juvenile.’ ” 237 Kan. at 457 (quoting K.S.A. 1984 Supp. 38-1601). In contrast, to interpret the hearsay exception of K.S.A. 1991 Supp. 60-460(dd) to apply to severance proceedings under the same code that provides for an adjudication of a child in need of care is quite another matter, because both proceedings are incorporated under one act.
The Supreme Court has recognized that child victims are often the only witnesses to their own mistreatment. State v. Myatt, 237 Kan. 17, 21, 697 P.2d 836 (1985). The court has also recognized the difficulty that a mistreated child likely would have in testifying in a court about that mistreatment. See 237 Kan. at 21-22. The overall concern of the Code for Care of Children is to protect children from such mistreatment. It would defy logic to allow such evidence to be used in proceedings to determine if a child is a child in need of care and disallow such evidence to establish the more serious misconduct and potentially greater danger to the child that supports termination of parental rights.
We recognize that the severance proceedings present much more serious consequences to the parents than do child in need of care proceedings, but we must balance the best interests of the child against the parents’ right to cross-examine witnesses, whether it be in a proceeding for adjudication of child in need of care or in a severance proceeding. The procedural safeguards in the hearsay exception protect the parents’ interests. Admitting the evidence after compliance with those procedural safeguards protects the interests of the child and the interests of the parents. Although K.S.A. 1991 Supp. 60-460(dd) does not expressly list proceedings to terminate parental rights,
“[t]he fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained. [Citation omitted.] A statute is not to be given an arbitrary construction according to the strict letter, but one that will advance the sense and meaning fairly deducible from the context.” Brown v. Tubbs, 2 Kan. App. 2d 522, 525, 582 P.2d 1165 (1978).
Accord Mahone v. Mahone, 213 Kan. 346, 350, 517 P.2d 131 (1973). We hold that the hearsay exception in K.S.A. 1991 Supp. 60-460(dd) applies to proceedings to terminate parental rights.
Sufficiency of Evidence Under the Kansas Code for Care of Children
K.P. argues that without the alleged hearsay statements, the evidence to support termination of his parental rights was not clear and convincing. He does not challenge the sufficiency of evidence if it is determined that D.V.’s statements to the SRS worker were admissible. Because we have held that D.V.’s statements fall within the hearsay exception of K.S.A. 1991 Supp. 60-460(dd), we need not treat K.P.’s sufficiency argument in detail.
The question raised by K.P. involves our standard of review in proceedings to terminate parental rights. K.P. suggests that this court ought to make a determination whether the evidence presented below was clear and convincing. However, the appropriate standard of review in this case is not whether the record contains substantial competent evidence of a clear and convincing nature, but rather whether the record, when viewed in the light most favorable to the party who prevailed, contains substantial competent evidence to support the trial court’s decision. In re S.M.Q., 247 Kan. 231, 234, 796 P.2d 543 (1990). We “must not reweigh the evidence, substitute [our] evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.” In re S.M.Q., 247 Kan. at 234.
The district court made 37 separate findings of fact to support its determination of severance. Only one, number 29, is based on the alleged hearsay testimony. Most of the. fact's in finding number 29 are corroborated with other evidence. In fact, much of this corroboration is furnished by K.P.’s own testimony. K.P. does not challenge the truthfulness or the evidentiary basis for the court’s 36 other factual findings, but asks this court to reevaluate the evidence in light of the other evidence. We, however, decline because we do not reweigh the evidence or substitute our evaluation of the evidence for that of the district court. The record contains substantial competent evidence to support severance of the natural father’s parental rights.
Adjudication of Child in Need of Care
K.P. claims that the proceedings in this action did not satisfy the requirement in K.S.A. 1991 Supp. 38-1583(a) that a child be adjudicated to be a child in need of care before the court may terminate parental rights. We disagree.
K.P. moved for a directed verdict at trial and seeks reversal here based on his argument that there can be no termination of his parental rights until there has been an adjudication that his acts or omissions caused the child to be adjudicated a child in need of care.
K.S.A. 1991 Supp. 38-1583(a) provides that a court may terminate parental rights “[w]hen the child has been adjudicated to be a child in need of care.” K.P. asks this court to insert language into the statutory requirement so that it allows a court to terminate a parent’s parental rights only after the court has determined that such parent’s actions or inactions caused the child to be a child in need of care. The statute simply does not require this. In this case, the express provisions of the statute were satisfied in that the child was adjudicated to be a child in need of care.
The apparent underlying basis for K.P.’s argument is that it would be unfair to terminate one parent’s rights because of the other parent’s conduct. The legislature, however, protected against such a possibility when it specified the factors that a court must consider in severance proceedings. See K.S.A. 1991 Supp. 38-1583(b), (c). All of the factors, with the exception of 38-1583(b)(6), relate to the conduct of the parent whose parental rights are at issue. Based on the evidence and K.P.’s conduct, the court found clear and convincing evidence to support statutory grounds for termination. The trial court’s decision is supported by substantial competent evidence.
Affirmed.
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BRISCOE, C.J.:
This is a product liability case raising issues of statutory interpretation which are of first impression in the appellate courts of Kansas. David Baumann brought this action on July 27, 1990, for injuries he suffered when he attempted to prime the fuel pump of a lawn mower while the mower’s engine was running. The mower was manufactured by Excel Industries, Inc., in May 1966. Baumann was injured on July 31, 1988. The district court entered summary judgment in favor of Excel, after concluding Baumann’s action was barred by the “useful safe life” 10-year period of repose. The court also found the statutory exception to the 10-year period of repose, K.S.A. 1991 Supp. 60-3303(b)(2)(D), was inapplicable because the injury-causing aspect of the mower was readily discoverable by a reasonably prudent person at the time of delivery. Baumann appeals the district court’s entry of summary judgment in favor of Excel.
In determining whether Baumann’s product liability action is time barred, we affirm the district court’s application of the statute of repose in 60-3303 of the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq. While concluding the court erred in holding Baumann to a clear and convincing standard rather than a preponderance of the evidence standard at the summary judgment stage, we affirm the district court’s ultimate conclusion that Baumann failed to overcome the presumption under 60-3303(b)(l) that the mower’s useful safe life had expired. Finally, we affirm the court’s ruling that the injury-causing aspect of the mower was discoverable by a reasonably prudent person within 10 years of delivery.
The parties do not dispute the underlying facts. The injury-causing product in this case was a Model XL 172 Hustler heavy-duty riding lawn mower which was manufactured in 1966. The mower was last in the control of Excel no later than 1978 as Leroy Tenbarge bought the used mower from Excel in 1977 or 1978. Baumann purchased the mower from Tenbarge in 1980. When Baumann purchased the mower, he had to make some repairs to it.
Baumann was injured on July 31, 1988, when he attempted to prime the engine of the mower while the engine was running. Before the injury occurred, Baumann placed his hand between moving parts of the mower in an attempt to prime the mower’s fuel pump by using the manual valve to pump fuel into the engine. This manual valve is located between the upper and lower sides of the drive belt, which rotates rapidly when the engine is running and moves the pulleys to transfer power from the mower’s engine to the mower’s transmission and blades. Four fingers of Baumann’s left hand were severed when his hand was pulled into the drive belt and against a moving pulley. Two of his fingers were later reattached, but have not regained full mobility. Prior to his injury, Baumann was a mechanic. He now supervises the work of other mechanics.
I. Applicable statute of repose.
The threshold question in this case is whether the general statute of repose, K.S.A. 1991 Supp. 60-513(b), controls over the specific statute of repose, 60-3303(b). A statute of repose limits the time during which a cause of action can arise and usually runs from an act of the alleged tortfeasor. A statute of repose abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. By contrast, a statute of limitations extinguishes the right to prosecute an ac crued cause of action after a period of time. See Harding v. K. C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992). In Harding, the court concluded both 60-513(b) and 60-3303(b) are statutes of repose.
Excel argues Baumann’s claim is barred by 60-513(b), which provides:
“Except as provided in subsection (c), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if 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 an action be commenced more than 10 years beyond the time of the act giving rise to the cause pf action.” (Emphasis added.)
Excel alleges the act that gave rise to the cause of action was the manufacturing of the mower in 1966. Excel argues Baumann’s action filed in 1990 is barred by 60-513(b).
Baumann counters that Excel did not raise the statute of limitations as an affirmative defense before the district court and cannot now raise it on appeal. While 60-513(b) is not a statute of limitation, a statute of repose would fall within the description in K.S.A. 1991 Supp. 60-208(c) of defenses which must be raised as affirmative defenses. A statute of repose would qualify as “any other matter constituting an avoidance or affirmative defense.” K.S.A. 1991 Supp. 60-208(c). Although Excel made substantial and repeated references to the statute of repose in 60-3303, it never directly cited 60-513(b). Excel did raise a statute of repose issue, but did not directly raise it under 60-513(b).
As a general rule, issues raised for the first time on appeal will not be reviewed. However, there are three recognized exceptions to that general rule:
“ ‘(f) Cases 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;
“ ‘(2) cases where consideration of a question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
“ ‘(3) cases where a judgment of a trial court may be upheld on appeal even though the court may have relied on the wrong ground or assigned a wrong reason for its decision.’ [Citation omitted.]” In re Conservatorship of Marcotte, 243 Kan. 190, 196, 756 P.2d 1091 (1988).
Even if not directly raised before the district court as an affirmative defense, the issue of whether 60-513(b) would bar this action presents a question of law arising on proved or admitted acts. Here, it had been proved or admitted that the mower was manufactured in 1966, that the last time the mower was in the control of Excel was no later than 1978, that the injury occurred on July 31, 1988, and that this action was filed July 27, 1990. The only questions remaining are questions of law. Further, the resolution of whether 60-513(b) applies to and bars this action could provide an alternate ground for upholding the district court’s decision that this action was time barred.
Baumann argues 60-3303 applies to determine whether his action is time barred. In fact, Excel moved for summary judgment, arguing it had no liability because the useful safe life of the mower had expired under 60-3303. K.S.A. 1991 Supp. 60-3303 provides in pertinent part:
“(a)(1) Except as provided in paragraph (2) of subsection (a) of this section, a product seller shall not be subject to liability in a product liability claim if the product seller proves by a preponderance of the evidence that the harm was caused after the product’s ‘useful safe life’ had expired. ‘Useful safe life’ begins at the time of delivery of the product and extends for the time during which the product would normally be likely to perform .... ‘[T]ime of delivery’ means the time of delivery of a product to its first purchaser . . . who was not engaged in- the business of . . . selling such products ....
“(2) A product seller may be subject to liability for harm caused by a product used beyond its useful safe life to the extent that the product seller has expressly warranted the product for a longer period.
“(b)(1) In claims that involve harm caused more than 10 years after time of delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by clear and convincing evidence.
“(2)(A) If a product seller expressly warrants that its product can be utilized safely for a period longer than 10 years, the period of repose, after which the presumption created in paragraph (1) of this subsection arises, shall be extended according to that warranty or promise.
“(D) The ten-year period of repose established in paragraph (1) of this subsection shall not apply ... if the injury-causing aspect of the product that existed at the time of delivery was not discoverable by a reasonably prudent person until more than 10 years after the time of delivery ....
“(c) . . . [NJothing contained in subsections (a) and (b) above shall modify the application of K.S.A. 60-513, and amendments thereto.” (Emphasis added.)
Excel argues the legislature’s reference to 60-513 in 60-3303(c) indicates 60-513 controls. K.S.A. 1991 Supp. 60-513(b) bars the filing of any action “more than 10 years beyond the time of the act giving rise to the cause of action.” K.S.A. 1991 Supp. 60-3303(b) allows a product liability action beyond 10 years after time of delivery if the plaintiff can successfully rebut the presumption that harm caused more than 10 years after delivery is harm that was caused after the useful safe life of the product had expired. Although 60-3303(b) can provide a plaintiff with additional time to file an action if certain conditions are met, Excel argues the reference to 60-513 in 60-3303(c) negates whatever exceptions to the 10-year statute of repose that 60-3303(b) would provide.
As a general rule, a specific statute, such as 60-3303, controls over a general statute, such as 60-513. See Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989). In particular, statutes that provide a different limitation than that found in Article 5 of the Kansas Code of Civil Procedure control over the statutes found in Article 5. See Gifford v. Saunders, 207 Kan. 360, 362, 485 P.2d 195 (1971); K.S.A. 60-501. An exception to the specific statute controlling over the general statute rule arises when “the legislature intended to make the general statute controlling.” Kansas Racing, 244 Kan. at 353. When interpreting two statutes which appear to address similar subject matter, the statutes should be read together and harmonized if possible. Kansas Racing, 244 Kan. at 353.
The KPLA was adopted in 1981 (L. 1981, ch. 231). In enacting the KPLA, the Kansas Legislature used the Model Uniform Product Liability Act (MUPLA) as a reference, but did not adopt the MUPLA in its entirety. Westerbeke, Some Observations on the Kansas Product Liability Act (Part I), 53 J.K.B.A. 296 (1984). The MUPLA, developed by the United States Department of Commerce, was published, with commentary, at 44 Fed. Reg. 62,714 et seq. (1979). The purpose of both the MUPLA and the KPLA is to merge all legal theories of products liability into one single product liability claim. Chamberlain v. Schmutz Mfg. Co., Inc., 532 F. Supp. 588, 590 (D. Kan. 1982), citing K.S.A. 60-3302(c).
The MUPLA § 110(C) contained a provision for a statute of limitation that was not included in the KPLA: “No claim under [the MUPLA] may be brought more than two (2) years from the time the claimant discovered, or in the exercise of due diligence should have discovered, the harm and the cause thereof.” 44 Fed. Reg. at 62,732. Instead of that provision, the Kansas Legislature provided: “[N]othing contained in subsections (a) and (b) above shall modify the application of K.S.A. 60-513, and amendments thereto.” K.S.A. 1991 Supp. 60-3303(c).
It has been argued that the reference to 60-513 in 60-3303(c) nullified the exemption in 60-3303(b)(2)(D) for harm caused by prolonged exposure to harmful material or where the injury-causing aspect of the product was not discoverable by a reasonably prudent person. See Westerbeke, 53 J.K.B.A. at 308. In Harding, the Supreme Court disagreed. The court in Harding held that the categories of claims covered by 60-3303(b)(2)(D) are exempt from the 10-year statute of repose. 250 Kan. at 670.
In Harding, plaintiff contracted malignant pleural mesothelioma in 1988 after prolonged exposure to asbestos-containing products. Plaintiff’s last exposure to products manufactured by defendant was prior to January 1, 1977. He died on October 26, 1988; and his wife filed the action on September 5, 1990.
The defendant in Harding moved for summary judgment under the 10-year statute of repose in 60-513(b). By passage of 60-3303(e), the legislature provided a revival statute designed to allow claims such as Harding’s to escape the effect of the 10-year statute of repose. Defendant challenged the constitutionality of the revival statute.
The Kansas Supreme Court traced the evolution, both in case law and in legislative enactments, of the tort statute of limitations. It found no reason to invalidate 60-3303(e) as unconstitutional, either under the federal or the state constitution. In particular, the court stated the provision of 60-3303(c), which provides nothing contained in 60-3303(a) and (b) shall modify 60-513, does not nullify the exceptions in 60-3303(b)(2)(D). Those exceptions include prolonged exposure to a defective product, which is not present in this case, and if the injury-causing aspect of the product was not discoverable by a reasonably prudent person, which is an issue in this case.
The court in Harding also reiterated the rule that “ ‘statutes complete in themselves, relating to a specific thing, take precedence over general statutes.’ ” 250 Kan. at 661. In doing so, the court found that the specific statute of 60-3303 applied instead of 60-513.
We find the court’s reasoning in Harding instructive and conclude 60-513(b) does not control over 60-3303(b). To find otherwise would ignore the general rule of statutory interpretation that a specific statute should control over a general statute. The legislature has not clearly expressed an intent to have the general statute control. Further, to apply 60-513(b) would render the rebuttable presumption in 60-3303(b)(l) meaningless. It is presumed the legislature would not enact meaningless legislation. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Finally, to allow 60-513(b) to control would remove the quid pro quo for adopting the KPLA statute of repose, which was designed to balance the concerns of the manufacturer with the right of a consumer to recover for injuries suffered.
II. Useful safe life.
Baumann contends the district court erred in ruling as a matter of law that the useful safe life of the mower had expired. He argues he should not have been held to a clear and convincing evidence standard at the summary judgment stage of the proceeding. Baumann bases this argument on Justice Rehnquist’s dissent in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 268, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (“The Court, apparently moved by concerns for intellectual tidiness, mistakenly decides that the ‘clear and convincing evidence’ standard governing finders of fact in libel cases must be applied by trial courts in deciding a motion for summary judgment in such a case.”). The Kansas Supreme Court has followed the Anderson application of the clear and convincing evidence standard at the summary judgment stage of the proceedings in a state court libel action. Ruebke v. Globe Communications Corp., 241 Kan. 595, 602, 738 P.2d 1246 (1987). In Ruebke, 241 Kan. at 602, the majority opined the purpose of the Anderson decision regarding the summary judgment eviden tiary standard was “[t]o provide added protection to the press from libel suits.”
Although Anderson and Ruebke were both libel actions, Justice Brennan’s dissent in Anderson opined the rule announced extended to all civil actions, not just libel or defamation suits. 477 U.S. at 257-58. If that is true, the district court in the present case did not err in “view[ing] the evidence presented through the prism of the substantive evidentiary burden.” 477 U.S. at 254.
We conclude the application of a clear and convincing evidence standard at the summary judgment stage is unique to libel cases because First Amendment rights are at issue. In Ruebke, 241 Kan at 602, the court stated:
“To provide added protection to the press from libel suits, the United States Supreme Court recently changed the direction of summary judgment under the federal rules. In a libel action brought by a ‘public figure,’ that individual is required under the First Amendment to prove by clear and convincing evidence that the defendant acted with ‘actual malice, a knowing or reckless disregard of the truth.’ That the clear and convincing standard of proof of malice applies at the summary judgment stage was decided in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court stated:
‘[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. .. . [Wjhere the First Amendment mandates a ‘clear and convincing’ standard, the trial judge in disposing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that the plaintiff had shown actual malice with convincing clarity.’ 477 U.S. at 252.”
Federal court decisions interpreting the federal code of civil procedure are highly persuasive in applying the Kansas Code of Civil Procedure, which is based on the federal code. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975). However, in the context of fraud, the Kansas Supreme Court has stated that, although a party alleging fraud must prove it by clear and convincing evidence, “a party resisting a motion for summary judgment need not present this quantum of evidence in order to succeed in opposing the motion.” Gorham State Bank v. Sellens, 244 Kan. 688, 691, 772 P.2d 793 (1989). The Supreme Court has subsequently opined that clear and convincing evidence is a quality and not a quantum of proof. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 448, 827 P.2d 24 (1992).
We conclude the district court erred in requiring Baumann to meet the clear and convincing evidence standard at that stage of the proceedings. However, because all of the evidence is documentary, this does not prevent us from reviewing the evidence de novo and applying the proper standard, preponderance of the evidence. See Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990).
On appeal, the standard of review is well established. “When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. [Citations omitted.]” Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).
The question then is whether the court erred in ruling Baumann did not meet his evidentiary burden. K.S.A. 1991 Supp. 60-3303(a)(l) states in part:
“Examples of evidence that is especially probative in determining whether a product’s useful safe life had expired include:
(A) The amount of wear and tear to which the product had been subject;
(B) the effect of deterioration from natural causes, and from climate and other conditions under which the product was used or stored;
(C) the normal practices of the user, similar users and the product seller with respect to the circumstances, frequency and purposes of the product’s use, and with respect to repairs, renewals and replacements;
(D) any representations, instructions or warnings made by the product seller concerning proper maintenance, storage and use of the product or the expected useful safe life of the product; and
(E) any modification or alteration of the product by a user or third party.”
Baumann asserts the following undisputed facts to support his claim that the mower s useful safe life had not expired:
1. Baumann’s expert witness testified: “I see the useful life being as long as you want to keep repairing the mower.” However, the expert admitted he had not been “asked to address” whether the useful safe life of the mower had expired and his opinion was based upon his looking at the parts list, coupled with his knowledge of the components of the mower. He also stated he felt useful life was more an “academic” than a “practical” phrase in the industry. The expert testified the only tíme he had inspected the mower, “[i]t was not operative, hadn’t been run for a year and a half or two years.” He took photographs of the mower but did not do any “destructive analysis.”
2. Excel manufactured and sold replacement parts for the mower even though that particular model of mower was no longer manufactured. This assertion does not affect whether the useful safe life of the mower had expired. Installation of defective parts would not reset the clock for the entire product.
3. The owner’s manual for the mower stated Excel “furnishes information and instructions that will help you achieve years of dependable performance.” The manual stated the mower had been “designed to give its owner many hours of trouble free operation with a minimum amount of maintenance, but like any industrial machine proper servicing and repair will prolong its total productive life.” Neither of these assertions provides a basis to conclude the useful safe life would exceed 10 years.
4. Excel admitted the mower’s useful life was between 1,000 and 2,000 hours. Baumann testified he had used the mower an average of 25 times per year, approximately 3 hours each time, over the 8 years he had owned the mower prior to his accident, which would total 600 hours. This evidence is not by itself probative. There is no evidence as to the number of hours of use occurred prior to Baumann’s purchase of the mower.
5. The mower was operating and in good condition when the accident occurred. Baumann performed routine repairs and maintenance on the mower from 1981 until the date of the injury and few parts ever needed replacing. These facts border on a circular argument that the useful safe life had not expired because the mower was still being used. If this argument had merit, the 10-year presumption would be useless because most, if not all, injuries would occur while a product was being used.
None of these assertions meets the burden of proof necessary to establish a genuine issue of fact exists as to whether the useful safe life of the mower had expired. Baumann has not rebutted the presumption that his injury occurred after the useful safe life of the mower had expired by a preponderance of the evidence.
III. Injury-causing aspect discoverable by reasonably prudent person.
Baumann next contends the district court erred in ruling the injury-causing aspect of the mower was discoverable by a reasonably prudent person within 10 years of the time of delivery. By this ruling, the court found the exception to the 10-year statute of repose in 60-3303(b)(2)(D) did not apply. K.S.A. 1991 Supp. 60-3303(b)(2)(D) states in pertinent part: “The ten-year period of repose established in paragraph (1) of this subsection shall not apply if . . . the injury-causing aspect of the product that existed at the time of delivery was not discoverable by a reasonably prudent person until more than 10 years after the time of delivery.” Finding no case law interpreting or applying 60-3303(b)(2)(D), both Baumann and Excel analogize the question to the longstanding rule that there is no duty to warn of open and obvious dangers. See, e.g., Long v. Deere & Co., 238 Kan. 766, 772-73, 715 P.2d 1023 (1986), and Siruta v. Hesston Corp., 232 Kan. 654, 664, 659 P.2d 799 (1983). Siruta is factually closer to the situation in this case, but it provides little guidance.
In Siruta, plaintiff lost an aim in an accident involving a hay baler manufactured by Hesston. The accident occurred on November 12, 1979, and the KPLA did not apply. One of Hesston’s defenses was that the danger was open and obvious. The court responded that the fact that a danger is open and obvious goes to the question of comparative fault, not to the issue of whether the product was defective. 232 Kan. at 664. .
The phrase in question is, with one minor difference, the same as in the MUPLA. The analysis of MUPLA § 110(B)(2) states it is “[a]n exception .... made for the unusual situation in which a product contains, at the time of delivery, a hidden defect that is not discoverable by a reasonably prudent product user and does not manifest itself until after a ten-year period has expired.” 44 Fed. Reg. at 62,734.
“ ‘Discoverable’ clearly implies means by which the user can without danger to himself reasonably detect the hidden danger and guard against it.” Gisriel v. Uniroyal, Inc., 517 F. 2d 699, 704 (8th Cir. 1975). Reasonable is defined as “suitable under the circumstances.” Black’s Law Dictionary 1265 (6th ed. 1990). Pru dent is defined as “careful” or “sensible.” Black’s Law Dictionary 1226 (6th ed. 1990)'.
Under the circumstances of this case, would a careful person, without placing himself or herself in danger, have been able to comprehend the danger and determine how to avoid the danger? A careful person would have read the manual, would have known where the manual valve was located, and would have seen the proximity of the valve to the moving belts and pulleys. Upon preliminary examination of the mower at the time of delivery, a reasonably prudent person would have seen that an attempt to use the manual valve when the mower’s engine was running could result in injury.
Affirmed.
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The opinion of the court was delivered by
Nuss, J.:
This eminent domain controversy arises out of Doyle and Lea Harsches’ efforts to appeal a district court’s denial of their motion to stay proceedings. After the denial, the Harsches and their counsel refused to participate in a scheduled jury trial, claiming that their fihng of a docketing statement with the clerk of the appellate courts deprived the district court of jurisdiction. That court disagreed. When the Harsches and counsel failed to appear for trial, the district court dismissed the action for lack of prosecution, held counsel in contempt, and levied costs and fees against him. The Harsches appeal pursuant to K.S.A. 26-504 (direct appeal to Supreme Court of any final order under the Eminent Domain Procedure Act [EDPA], K.S.A. 26-501 et seq.).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court lose jurisdiction to proceed with the trial once the Harsches filed their docketing statement with the clerk of the appellate courts? No.
2. Did the district court abuse its discretion in denying the Harsches’ motion to stay and ordering the jury trial to proceed? No.
3. Did the district court commit reversible error in its contempt holdings? Yes.
Accordingly, we affirm the district court’s dismissal of the action but reverse its contempt holdings.
FACTS
The essential facts are not in dispute. Debra Miller, as Secretary of the Kansas Department of Transportation (KDOT), instituted eminent domain proceedings against property owned by the Harsches pursuant to K.S.A. 2007 Supp. 26-501. The Harsches then filed an action pursuant to K.S.A. 2007 Supp. 26-508 in Coffey County District Court, 07-CV-36, appealing die amount of the damages award of the court-appointed appraisers. In August 2007, the district court set February 6-7, 2008, for the jury trial on the damages issue.
In December 2007, the Harsches filed a separate action in Coffey County District Court, 07-CV-67, contending that K.S.A. 26-513(c) of the EDPA was unconstitutional on its face and as applied. They simultaneously filed a motion in 07-CV-36 to temporarily stay that district court damages appeal pending the outcome of their constitutional challenge.
That same month the Harsches also filed an action in the United States District Court for the District of Kansas, again challenging the constitutionality of 26-513(c). The next day, after hearing oral arguments, the state district court temporarily denied the motion to stay 07-CV-36 but acknowledged the federal court action and ruled that the motion would be reconsidered on or about January 11 after further briefing. Soon thereafter the Harsches dismissed their state constitutional challenge: 07-CV-67.
On December 27, 2007, the Harsches filed a pleading with the state district court formally waiving their request for additional briefing and “accepted the finality of the court’s order” denying the stay. They also filed with that court their notice of appeal of its denial of their motion to stay pending resolution of the federal constitutional challenge which was set for trial June 16, 2009.
Eleven days later, on January 7, 2008, the Harsches filed their docketing statement with the clerk of the appellate court in Harsch v. Miller, No. 99,807. In their statement they acknowledged that the order appealed from was not a “final order” and that the district court had not directed entry of judgment in accordance with K. S. A. 60-254(b). Rather, they asserted the “collateral order doctrine” as the authority for their appeal. The district court received notice of the docketing.
Three days later the Court of Appeals issued a show cause order. According to the order, no final appealable order was apparent; nor was it clear that the requirements of the collateral order doctrine had been met. It directed that by January 22 the parties should provide argument on why the appeal should not be dismissed as interlocutory.
In the Harsches’ response, they continued to argue that the collateral order doctrine did apply. They now also argued, however, that they were appealing a “final decision immediately appealable under K.S.A. 60-2102(a)(4),” citing Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983). KDOT’s response to the show cause order primarily cited Gansert v. Colorado Student Loan Program, 122 Fed. Appx. 924, 925 (10th Cir. 2004) (unpublished opinion), as support for the argument that the “denial of a motion to stay proceedings which does no more than postpone the resolution of an action is not an appealable collateral order” (citing GulfStream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 99 L. Ed. 2d 296, 108 S. Ct. 1133 [1988]).
Nine days after the responses, on January 31, the district court conducted a pretrial conference. The Harsches’ counsel, Mark B. Rockwell, appeared by telephone. The court reminded everyone that the jury trial remained scheduled to begin February 6.
The next day, February 1, the Harsches filed with the district court a pleading titled “Suggestion of Absence of Jurisdiction.” They argued that the district court lost jurisdiction on January 7 when their “appellate docketing statement was accepted for filing” by the appellate court clerk. Among other things, their pleading stated:
“Until the supreme court either dismisses the appeal or otherwise remands the case, the district court is powerless to proceed as has been the case since January 7th. Consequently, district court proceedings, orders, and rulings in effect or issued subsequent to January 7, 2008, are null and void.”
On February 4, the district court conducted a telephone hearing on the Harsches’ recent pleading. Their counsel orally reiterated the pleading’s argument: that while the supreme court might eventually dismiss their appeal, until that time that court, and not the district court, had jurisdiction.
The district court disagreed and criticized the Harsches’ reasoning with an example:
“The Court does not believe that this is a correct interpretation of state statutes. If that were the correct interpretation, parties could file docketing statements and notice cases up for appeal and continue litigation forever. A case could go on and on and never get to trial.
“[T]hey could motion up any type of hearing and depending upon what the Court decided in that particular hearing they could file a notice of appeal, docket it, and the court allows the appeal until such time as the court or Court of Appeals dismissed it, it could continue on to infinity.”
The court interpreted the Harsches’ appeal of an order denying stay as a type of interlocutory appeal. It noted that the procedures contained in K.S.A. 2007 Supp. 60-2102 for obtaining such an appeal had not been followed. Accordingly, the court ruled that it still had jurisdiction to proceed with the jury trial scheduled to begin 2 days later and ordered counsel to appear.
Harsches’ counsel responded that because the district court no longer had jurisdiction, any trial would be a nullity. Consequendy, neither he nor his clients would show up for, much less participate in, the juiy trial. In response to the court’s question, counsel acknowledged he understood that “the court goes to a huge expense to have a jury come here.” The court then warned that should
“you fail to appear that day [of trial], there will be consequences for that failure to appear. Those will not only be against your client and their appeal of that appraisers’ award, but there will be consequences against you personally as an attorney.”
After the Harsches’ counsel reiterated that the district court no longer had jurisdiction, the judge responded:
“Well, the Court has made determinations that in fact it does and the Court will expect you to act accordingly. The Court intends on having a juiy trial starting on Wednesday here in Coffey County. If you fail to appear I guess you do so at your own risk.”
The Harsches’ counsel again stated that they would not be present: “We aren’t participating in district court proceedings at this time, Your Honor.”
True to counsel’s representations, on February 6, he and his clients failed to appear for the jury trial. The district court noted that the jury was present and ready to proceed. It also stated that it had called counsel’s office the day before to see whether they would attend and whether the jury should be dismissed, but it had received no return call. The court then dismissed 07-CV-36 for lack of prosecution, confirmed the original appraisers’ award, and held Rockwell in contempt:
“In the Court’s opinion Mr. Rockwell’s failure to appear today is in direct contempt of court in violation of K.S.A. 20-1203. The Court directed Rockwell to appear today. He chose not to do so. Therefore the Court finds him in direct contempt of court and assesses those costs accordingly.”
The court assessed $3,769 in costs and fees against Rockwell personally for the county’s costs for convening a jury and for juror questionnaires; KDOT’s attorney fees for travel and trial appearance; and the costs for KDOT’s factual and expert witnesses’ time and travel for trial.
One week later, on February 13, this court — having taken the case from the Court of Appeals on January 11 under K.S.A. 26-504 — dismissed “for lack of jurisdiction” the Harsches’ appeal of the district court order denying the stay. Later that month, the Harsches filed their notice of appeal of the district court’s dismissal of their K.S.A. 2007 Supp. 26-508 appeal for lack of prosecution and holding their counsel in contempt.
ANALYSIS
Issue 1: The district court did not lose jurisdiction once the Harsches filed their docketing statement with the clerk of the appellate courts.
The Harsches argue that the district court lost jurisdiction on January 7, 2008, when they filed their docketing statement (No. 99,807) for appealing the denial of their motion to stay, citing Honeycutt v. City of Wichita, 251 Kan. 451, 461, 836 P.2d 1128 (1992) (“[I]n Kansas . . . the trial court keeps jurisdiction until the appeal is docketed in the appellate court.”). While they do not dispute the propriety of our dismissing their original appeal for lack of jurisdiction on February 13, 2008, they do assert that the district court should not have proceeded “as if this court’s eventual dismissal was inevitably foreseeable.”
The Harsches further contend that dual jurisdiction in trial and appellate courts with concurrent proceedings also violates the policies of judicial economy, orderly court procedures, and litigation cost minimization. Consequently, they argue that the district court’s February 6 dismissal for lack of prosecution of their appeal to that court of the eminent domain compensation award, as well as the holding of their counsel in direct contempt, should be declared void for lack of jurisdiction.
KDOT generally responds that the filing of the docketing statement did not deprive the district court of jurisdiction for all purposes, citing Carson v. Eberth, 3 Kan. App. 2d 183, 592 P.2d 113 (1979). It points out that the existence of jurisdiction is a question of law over which our scope of review is unlimited. Schmidtlien Electric v. Greathouse, 278 Kan. 810, 830, 104 P.3d 378 (2005). We agree with KDOT.
We begin our analysis by recognizing that Kansas appellate courts have indeed sometimes made general statements that appear supportive of the Harsches’ position. For example, in addition to Honeycutt, 251 Kan. at 461, the Court of Appeals has stated: “In Kansas, the district court retains jurisdiction until an appeal is docketed with the appellate court.” Sanders v. City of Kansas City, 18 Kan. App. 2d 688, 692, 858 P.2d 833, rev. denied 253 Kan. 860 (1993), cert. denied, 511 U.S. 1052 (1994).
Kansas appellate courts, however, have also acknowledged instances where this general principle does not apply:
“ ‘Without exception it is held that an appeal under the civil code does not automatically stay further proceedings in the court below. The latest expression to this effect is Barstow v. Elmore, 177 Kan. 30, [276 P.2d 360 (1954),] where it was held that the appeal did not deprive the trial court of jurisdiction to grant a new trial while the appeal was pending. Again, in Owen v. Stark, 175 Kan. 800, [267 P.2d 948 (1954),] defendants appealed from an order overruling their demurrer to the petition. Notwithstanding such appeal, the district court proceeded to try the case and rendered judgment on the pleadings in favor of plaintiffs. Defendants again appealed, the two appeals being considered together. The defendants argued that their first appeal operated to stay further proceedings in the trial court. The opinion states ([Owen, 175 Kan. at] 808), “This view is erroneous. No statute provides for that.” This holding is in accord with earlier cases. [Citations omitted.] ‘The law is thus settled that an appeal in a civil case does not, of itself, prevent the lower court from proceeding with the case.’ ” (Emphasis added.) State v. Hess, 180 Kan. 472, 476, 304 P.2d 474 (1956).
See also Carr v. Diamond, 192 Kan. 377, 379, 388 P.2d 591 (1964) (“An appeal to this court does not of itself operate as a stay of further proceedings in the trial court.”); Fields v. Blue Stem Feed Yards, 195 Kan. 167, 170, 403 P.2d 796 (1965) (same). Indeed, in In re Estate of Robinson, 232 Kan. 752, 754, 659 P.2d 172 (1983), this court held that while a trial court does not have jurisdiction to modify a judgment after it has been appealed and the appeal docketed at the appellate level, this rule did not prevent the trial court from allowing attorney fees and expenses while the case was on appeal.
More important than this particular case law, however, is our recognition that the right to appeal is entirely statutory and that the limits of our jurisdiction are imposed by the legislature. See Kan. Const. art. 3, § 3 (Supreme Court has “such appellate jurisdiction as may be provided by law”). We have acknowledged that because Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute, “the appellate courts do not have discretionary power to entertain appeals from all district court orders.” Flores Rentals v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007). And the legislature clearly has not authorized parties to unilaterally appeal from any or all orders of the district court in the middle of litigation with the hope, perhaps vain, that the appellate court will ultimately decide that the order is indeed properly appealable. See Johnson v. Johnson, 219 Kan. 190, 193, 547 P.2d 360 (1976) (the Supreme Court has the exclusive responsibility of determining whether its jurisdiction has been properly invoked).
As the district court suggested, such a practice would be comparable to an appellate yo-yo. A trial court order, however minor, would be appealed and all trial court proceedings would be stayed until the appeal’s legitimacy eventually was ruled upon by the appellate court. Even if the appeal of the order were dismissed for lack of jurisdiction, another trial court order could be appealed and the trial court proceedings would again be stayed until ruled upon by the appellate court, and so on.
The Harsches discount these concerns, arguing that the docketing statement will force an appellant to reveal all jurisdictional weaknesses and that sanctions may be imposed for frivolous appeals. Nevertheless, we observe that even in the instant case, where counsel argues he proceeded with the greatest of respect and good faith, approximately 7 weeks — of potential delay — transpired between the time of the notice of appeal and the dismissal of the appeal for lack of prosecution.
In short, this proposed practice is inconsistent with the clearly stated Kansas policy to avoid piecemeal appeals. “The policy of the new [Code of Civil Procedure] leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy and inexpensive determination of every action.” Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964); see also Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008) (“ In Kansas, “piecemeal appeals are frowned upon.” ’ ”). Indeed, this court has held that even a trial court’s sincere, but erroneous, attempt to certify a particular order as final for appellate purposes under K.S.A. 60-254(b) ran counter to this policy:
“Piecemeal appeals are undesirable and cannot be sanctioned by allowing a trial court to circumvent the finality requirement simply by granting certification under K.S.A. 60-254(b) to an interlocutory ruling, which otherwise would require permission from the Court of Appeals [pursuant to K.S.A. 60-2102(c)] before an appeal could be taken.” (Emphasis added.) Wilkinson v. Shoney’s, Inc., 265 Kan. 141, 146-47, 958 P.2d 1157 (1998).
Additionally, this proposed practice not only endorses the appellate yo-yo, but it also allows the yo-yo to be primarily controlled by the appealing party — not by the district court or by the appellate court. While parties have certain rights, the trial court must maintain overall control of its proceedings. Cf. In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008) (A district court has substantial discretion in controlling the proceedings before it.); see also Landis v. North American Co., 299 U.S. 248, 254, 81 L. Ed. 153, 57 S. Ct. 163 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants.”).
We further observe that as part of the legislature’s desire to reduce the chances of piecemeal appeals, the legislature has limited appeals to certain circumstances only. See generally K.S.A. 2007 Supp. 60-2102. As we discussed in Flores, these legislative categories of appeal include: (1) final decisions, under subsection (a)(4), which are of right; and (2) interlocutory appeals under subsection (c), which are discretionary with the appellate courts. 283 Kan. at 481.
We acknowledged in Flores that the United States Supreme Court has addressed a “very narrow exception” to the final decision requirement — the collateral order doctrine. 283 Kan. at 481-82, 490. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978). Illustrative of the policy of hmiting categories of appeals is the Flores court’s holding that “[t]here is no sound policy to liberalize the [collateral order] doctrine, especially when the opportunity exists for an interlocutory appeal if the Court of Appeals is persuaded, in the exercise of its discretion, to allow the appeal.[Citation omitted.]” (Emphasis added.) 283 Kan. at 490.
Here, the Harsches seemingly made no effort to ascertain that the order which they were attempting to appeal was actually a final order under K.S.A. 2007 Supp. 60-2102(a)(4) or K.S.A. 26-504 (“Appeals to the supreme court may be taken from any final order under the provisions of’ the EDPA). They apparently failed both through their own research and through action requested of the district court, e.g., arguably certification as a final order pursuant to K.S.A. 60-254(b). See, e.g., Wilkinson, 265 Kan. at 146-47.
Indeed, they admitted in their docketing statement that the order was not final. The admission was with good reason. See Moses H. Cone Hospital, 460 U.S. at 10-11 (district court decision to stay litigation “is not ordinarily a final decision” for appeal purposes); Crystal Clear Communications v. Southwestern Bell, 415 F.3d 1171, 1176 (10th Cir. 2005) (“If a stay merely delays litigation and does not effectively terminate proceedings, it is not considered a final decision.”); cf. Delta Traffic Service v. Occidental Chemical Corp., 846 F.2d 911 (3d Cir. 1988) (District court refusal to stay action and refer matter to the Interstate Commerce Commission (ICC) was not appealed from as a final order because apparently it was not. Rather, it was appealed as collateral order, or one essentially involving injunction denial. Because it was neither, appeal dismissed for lack of jurisdiction and remanded.); Oertel v. Phillips, 197 Kan. 113, 115, 415 P.2d 223 (1966) (“An order overruling a motion to dismiss an action is not a final or appealable order.”) (quoting Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P.2d 164 [1965]).
Clearly, the Harsches also never made any attempt to take the safer approach to ascertain the legitimacy of their appeal by seeking interlocutory status as provided for in K.S.A. 2007 Supp. 60-2102(c). See In re Condemnation of Land v. Stranger Valley Land Co., 280 Kan. 576, 123 P.3d 731 (2005) (interlocutory appeal conducted in eminent domain proceeding). That statute provides in relevant part:
“(c) When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such an order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order . . . Application for an appeal hereunder shall not stay proceedings in the district court unless ... so order[ed].”
While the Harsches obviously relied upon the collateral order doctrine, such reliance is risky, particularly through an attempted appeal during the middle of the litigation. As mentioned, less than 1 year before their attempted appeal of the denial of their motion to stay we had stated that the doctrine was a “very narrow exception” to the final decision requirement and that there was no sound policy to liberalize it when an interlocutory appeal opportunity existed. Flores, 283 Kan. at 490; see Feldspar Trucking v. Greater Atlanta Shippers, 849 F.2d 1389 (11th Cir. 1988) (district court refusal to stay action and refer matter to ICC was not collateral order; appeal dismissed for lack of jurisdiction and remanded); Delta Traffic Service, Inc., 846 F.2d 911; see also Gansert, 122 Fed. Appx. 924 at 925 (“denial of a motion to stay proceedings which does no more than postpone the resolution of an action is not an appealable collateral order”).
We recognize that the Harsches did file a request with this court to stay the district court action. See Supreme Court Rule 5.01 (2008 Kan. Ct. R. Annot. 33). Cf. State v. Johnston, 78 Kan. 615, 618, 97 P. 790 (1908) (proper manner for parties and their counselors to test the validity of an order of court is not to defy it, but to move, in the court which issued it or in some court having supervisory jurisdiction, to have it set aside). But while they filed such a motion on January 25, 2008, they withdrew it 7 days later, believing it to be “only appropriate and necessaiy in the case of an interlocutory appeal,” and not for their asserted bases of a final order and a collateral order. They cited “K.S.A. §§ 60-2102(c) and 60-2102a(c).”
We also observe that the Harsches failed to take ascertaining steps even after they had been notified by the Court of Appeals that their appellate position was doubtful. That court expressly advised the Harsches in its January 10, 2008, show cause order that apparently there was no final appealable order and that it was not clear that the requirements of the collateral order doctrine had been met. The Court of Appeals directed that the parties provide argument why the appeal should not be dismissed as interlocutory (when the statutory steps for perfecting such an appeal obviously had not been attempted).
We further observe that the Harsches had also been advised by the district court on several occasions in January and February 2008 that their appellate position was tenuous when the court refused to stay the jury trial. The court rejected not only their written motion to stay but also their position announced in the “Suggestion of Absence of Jurisdiction” after filing their docketing statement. Nevertheless, they chose to not participate in the trial.
Apparently, the Harsches attempted to use the appeal as the functional equivalent of a stay of the state court proceedings to help protect their June 16, 2009, trial in federal court. In other words, they gambled, and they lost.
In a letter of additional authority provided to this Court pursuant to Supreme Court Rule 6.09 (2008 Kan. Ct. R. Annot. 47), the Harsches argue that trying their case while their appeal was pending would have constituted acquiescence in the district court’s refusal to stay and a waiver of their right of appellate review. They cite Tice v. Eberling, 238 Kan. 704, 715 P.2d 397 (1986), in support. We disagree.
In Tice, the plaintiff s counsel did not object to the court’s ruling but merely proceeded. We stated:
“The plaintiff s counsel did not object to the court’s ruling. As a general rule, anything which savors of acquiescence in a judgment cuts off the right of appellate review. [Citations omitted.] The gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment. McDaniel v. Jones, 235 Kan. 93, 102, 679 P.2d 682 (1984).
"... Appellate review is not available where there has been acquiescence' and a failure to object to actions at trial.” (Emphasis added.) Tice, 238 Kan. at 713.
By contrast, several times the district court in the instant case ordered the Harsches, and their counsel, to proceed. Their objections and the bases for their objections to proceeding were clearly stated in the record and were thus preserved for appeal. Additionally, they were warned by the district court that failure to participate in the scheduled jury trial would be at their own risk and have consequences. Instead, they chose to disobey such orders. Compare Haberer v. Newman, 219 Kan. 562, 568, 549 P.2d 975 (1976) (court rejected defendants’ claim that their actions were done involuntarily under threat of being held in contempt of court; acquiescence therefore found and right to appeal foreclosed).
Because the Harsches did not appear for trial, the district court dismissed their appeal of the appraisers’ award under K.S.A. 2007 Supp. 26-508 for lack of prosecution. Because they argue only that the court had no jurisdiction to take any action and they take no other issue with the propriety of the dismissal, we need not decide whether the dismissal was an abuse of the district court’s discretion. See Frost v. Hardin, 218 Kan. 260, 263, 543 P.2d 941 (1975).
Issue 2: The district court did not abuse its discretion in denying the motion to stay and ordering the jury trial to proceed.
The parties agree that we review the district court’s denial of the Harsches’ motion to stay for abuse of discretion. See Henry, Administrator v. Stewart, 203 Kan. 289, 293, 454 P.2d 7 (1969). As mentioned, “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis, 299 U.S. at 254. We have held that discretion is abused when no reasonable person would take the view adopted by the district court. State ex rel. Stovall v. Meneley, 271 Kan. 355, 368, 22 P.3d 124 (2001).
KDOT observes that “a stay in a civil case is an extraordinary remedy,” quoting Meneley, 271 Kan. at 367. The party seeking the stay not only bears the burden of proof to establish that the stay is necessary (271 Kan. at 368), but also the party who asserts abuse of discretion bears the burden of showing it. Vorhees v. Baltazar, 283 Kan. 389, Syl. ¶ 2, 153 P.3d 1227 (2007).
Nevertheless, the Harsches argue that the district court abused its discretion in denying the motion to stay and in ordering the juiy trial to proceed. We disagree.
We first observe that according to the record, the district court gave the parties opportunity to argue before issuing a temporary ruling to deny the stay in December 2007. It then allowed the parties to additionally brief the issue and argue on reconsideration before making its final ruling. The Harsches waived those opportunities and accepted the finality of the order denying the stay.
We next observe that the Harsches filed their constitutional challenge in a separate action in state court, 07-CV-67, and then dismissed it within days, essentially refiling it in federal court. They asked that the eminent domain proceeding, 07-CV-36, which was scheduled for state trial in February 2008, be stayed until the resolution of their federal court challenge. The federal action was set for trial in June 2009 — 16 months later. Presumably, if the Harsches had lost their federal trial, they would have desired to appeal to the Tenth Circuit Court of Appeals and would have asked that the state action remain stayed.
Similarly, if they had lost at that level, they would presumably have desired to file a petition for a writ of certiorari with the United States Supreme Court and would have asked that the state action remain stayed. If that petition were eventually denied, presumably they would then have been ready to proceed with their jury trial on damages in state court and with the Kansas appellate process, if necessary. We note that under K.S.A. 26-504, appeals of final orders under the EDPA “shall take precedence over other cases,” which suggest a legislative intent to expedite such appeals. As a result, we cannot say that no reasonable person would agree with the trial court in wanting to move the Harsches’ case faster than the pace they requested.
The Harsches also expend considerable effort arguing that “res judicata and mootness” would bar their subsequent federal constitutional challenge if the state court condemnation damages action proceeded to judgment first. We disagree. Their rights to proceed on their constitutional claim in federal court would not have been cut off.
We observe that the Harsches could not bring their constitutional claim in the Coffey County District Court eminent domain proceedings or the appeal of those proceedings. The court has no jurisdiction to hear such claims there. Miller v. Bartle, 283 Kan. 108, 117-19, 150 P.3d 1282 (2007). Rather, “ ‘the constitutional issue should be raised in a separate judicial proceeding.’ ” 283 Kan. at 118 (quoting In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, 683, 683 P.2d 1247 [1984]). The Harsches announced in their docketing statement that the Miller holding was the reason why they filed their constitutional challenge to K.S.A. 26-513(c) in a separate action in state court. Had they pursued their state court constitutional challenge instead of dismissing and filing in federal court, we would be hard pressed indeed to bar it because of res judicata and mootness in light of our directions to litigants contained in Miller. Accordingly, we believe the federal courts would make the same determination.
We find no abuse of discretion.
Issue 3: The district court committed reversible error in its contempt holdings.
The Harsches’ counsel, Rockwell, raises a number of reasons why the contempt order against him should be reversed and, if not, the accompanying monetary sanctions should be reduced. The State simply responds that the district court had jurisdiction to find him in direct contempt for not appearing as the court directed.
We need only reach one of Rockwell’s arguments, as it is clearly dispositive in his favor: The district court’s contempt order is void due to a jurisdictional defect. The existence of jurisdiction is a question of law over which our scope of review is unlimited. Schmidtlien Electric, 278 Kan. at 830.
The district court’s contempt ruling was memorialized in an entry of judgment which identified K.S.A. 20-1203 as the basis for the direct contempt. That statute provides:
“That a direct contempt may be punished summarily, without written accusation against the person arraigned, but if the court or judge in chambers shall adjudge him guilty thereof a judgment shall be entered of record, in which shall be specified the conduct constituting such contempt, with a statement of whatever defense or extenuation the accused offered thereto, and the sentence of the court thereon.” (Emphasis added.)
As noted, Rockwell repeatedly advised the court of the reasons why neither he nor his clients would appear for the jury trial. However, the journal entry contains no reference as to why he failed to appear, i.e., “a statement of whatever defense or extenuation [Rockwell] offered.” K.S.A. 20-1203.
Kansas appellate courts have held that such a failure to follow the requirements of 20-1203 is fatal; indeed, the defect is jurisdictional and the order therefore void. See State v. Jenkins, 263 Kan. 351, 357, 950 P.2d 1338 (1997) (failure to comply with 20-1203 is jurisdictional); In re Gambrell, 160 Kan. 620, 623, 164 P.2d 122 (1945), reh. denied 161 Kan. 4, 165 P.2d 760 (1946); Wallace v. Weber, 134 Kan. 201, Syl. ¶ 1, 5 P.2d 855 (1931); State v. Williams, 28 Kan. App. 2d 97, Syl. ¶ 4, 11 P.3d 1187 (2000); State v. Flanagan, 19 Kan. App. 2d 528, Syl. ¶ 4, 873 P.2d 195 (1994). And while counsel’s reasons presented to the district court are amply contained in the record on appeal, their presence there cannot cure the defect caused by their absence in the journal entry. Williams, 28 Kan. App. 2d at 101-02.
The decision of the district court dismissing for lack of prosecution the Harsches’ appeal of the appraisers’ award to that court is affirmed. The decision of the district court holding their counsel in contempt and assessing sanctions is reversed.
Affirmed in part and reversed in part.
McFarland, C.J., not participating.
Hill, J., assigned.
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The opinion of the court was delivered by
Biles, J.:
Walter G. Spotts was sentenced under K.S.A. 2006 Supp. 21-4643 after he pled no contest to two counts of rape for engaging in sexual intercourse with a 12-year-old girl in violation of K.S.A. 21-3502(a)(2), with each count an off-grid person felony. See K.S.A. 21-3502(c). On the first count, he was sentenced to life imprisonment without the possibility of parole for 620 months (51 years, 8 months). On the second count, he was sentenced to life imprisonment without the possibility of parole for 300 months (25 years). The district court ordered the sentences to run consecutively.
On appeal, Spotts makes two arguments. First, he challenges his sentences as cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights. Second, he claims the district court abused its discretion in denying his motion for downward durational departures under K.S.A. 2006 Supp. 21-4643(d). We reject both arguments and affirm his sentences.
Factual and Procedural Background
Spotts initially was charged with three counts of rape, three counts of indecent liberties with a child, and one count of aggravated sodomy after he admitted to engaging in sexual intercourse on multiple occasions with a 12-year-old girl. Ultimately, Spotts pled no contest to two counts of rape in violation of K.S.A. 21-3502(a)(2), sexual intercourse with a child under the age of 14. Each crime constitutes an off-grid person felony.
In his sentencing proceedings, Spotts filed a motion seeking downward durational departure sentences, which were authorized under K.S.A. 2006 Supp. 21-4643(d). Spotts argued his case presented substantial and compelling reasons for departure based on the following mitigating circumstances: (1) no prior sexually motivated convictions; (2) he took responsibility for his actions and showed deep remorse for what happened; (3) the no contest plea saved the victim from having to testify at trial; (4) the sexual acts were not committed by force or threat of force; and (5) Spotts was taking an antidepressant and prescription sleep aid when the offenses occurred and “just wasn’t thinking right.” Spotts also noted he would serve a considerably long sentence even if the durational departures were granted.
The State opposed the motion. In doing so, the State noted: (1) Spotts had a substantial criminal history with numerous prior person felony convictions, all of which resulted in a severity level A criminal history score; (2) Spotts was on felony parole when he committed the offenses; (3) Spotts understood the victim was 12 years old and repeatedly engaged in sexual intercourse with her; and (4) the medications Spotts was taking were for anger control, stress, and to aid with sleep.
The district court denied the motion for downward durational departures and found none of the asserted mitigating circumstances justified departures. Spotts was sentenced to life imprisonment without the possibility of parole for 620 months (51 years, 8 months) for the first offense and life imprisonment without the possibility of parole for 300 months (25 years) for the second offense, with lifetime postrelease supervision for both convictions. The sentences were ordered to run consecutively.
Spotts made a timely appeal. This court’s jurisdiction is under K.S.A. 22-3601(b)(10) (off-grid crime; life sentence).
Cruel or Unusual Punishment
Spotts challenges the life sentences that were imposed under K.S.A. 2006 Supp. 21-4643(a)(1). Spotts claims his sentences constitute cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights. But in making the argument, Spotts concedes he did not raise this issue with the district court. This failure presents Spotts with an insurmountable obstacle because two recent decisions by this court already determined a defendant may not argue this issue for the first time on appeal. State v. Thomas, 288 Kan. 157, Syl. ¶ 1, 199 P.3d 1265 (2009); State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2, 194 P.3d 1195 (2008).
As explained in those decisions, when a defendant fails to argue a constitutional challenge at the district court level, but later tries to make the argument at the appellate level, the defendant runs counter to the long-standing general rule that constitutional issues cannot be asserted for the first time on appeal. Ortega-Cadelan, 287 Kan. at 159 (citing State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 [2007]). For an appellate court to proceed under these circumstances, it is necessary for the party raising the constitutional issue to satisfy one of three recognized exceptions to the general rule, which are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court is right for the wrong reason. Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967).
In Ortega-Cadelan, this court reviewed fully the applicability those Pierce exceptions have in the context of a challenge under § 9 of the Kansas Constitution Bill of Rights to a defendant’s life sentence imposed under K.S.A. 2006 Supp. 21-4643(a)(1) when that challenge is raised for the first time on appeal. In that case, the court determined the issue was too fact intensive to be considered for the first time on appeal. The court noted that whether a life sentence under K.S.A. 2006 Supp. 21-4643(a)(1) was cruel or unusual punishment must be analyzed using the three-prong test set out in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). Ortega-Cadelan, 287 Kan. at 160-61. Those considerations are:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
In reviewing those factors, the Ortega-Cadelan court determined that a Freeman analysis necessarily intertwines both factual and legal questions, and further noted that no single legal consideration under Freeman controls the outcome. Ortega-Cadelan, 287 Kan. at 161. Accordingly, the Ortega-Cadelan court determined that it needs a record developed at the district court level to address the factual aspects embedded within the Freeman analysis in order for a defendant to properly bring a challenge to his or her life sentence under K.S.A. 2006 Supp. 21-4643(a)(1) as cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights. Ortega-Cadelan, 287 Kan. at 161. A short time thereafter, this court in Thomas followed Ortega-Cadelan and reiterated that the intermingling of these factual and legal questions makes development of a record at the district court level critical because appellate courts do not make factual findings. Thomas, 288 Kan. at 161 (citing In re Adoption of A.A.T., 287 Kan. 590, 599, 196 P.3d 1180 [2008]).
This appeal by Spotts brings to us the same arguments already addressed in Ortega-Cadelan and Thomas. Since Spotts raises his cruel or unusual punishment argument for the first time on appeal, this court has no factual findings upon which to base an analysis of his arguments. His claim that his life sentences under K.S.A. 2006 Supp. 21-4643(a)(1) constitute a cruel or unusual punishment is not properly before this court.
Downward Durational Departure Motion
Spotts next argues the district court erred by denying his request for downward durational departure sentences. We disagree.
Under the statute in effect when the offenses were charged, a first-time offender who is 18 years or older and convicted of committing rape of a child under the age of 14 must be sentenced to a mandatory lifetime sentence with a minimum of not less than 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 2006 Supp. 21-4643(d). If the sentencing judge departs from the mandatory minimum term, the departure sentence “shall be the sentence pursuant to the sentencing guidelines act, . . . and no sentence of a mandatory minimum term of imprisonment shall be imposed.” K.S.A. 2006 Supp. 21-4643(d).
The statute specifies a nonexclusive list of mitigating factors the judge may consider in determining whether substantial and compelling reasons for departure exist: (1) The defendant has no significant criminal history; (2) the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) the victim was an accomplice, and the defendant’s participation was relatively minor; (4) the defendant acted under extreme distress or substantial domination of another person; (5) the defendant’s capacity to appreciate the criminality of his or her conduct or conform such conduct to the requirements of the law was substantially impaired; and (6) the defendant’s age at the time of the crime. K.S.A. 2006 Supp. 21-4643(d)(l)-(6).
Spotts argues that the issue as to whether a district court erred by denying a downward durational departure under K.S.A. 2006 Supp. 21-4643(d) is a question of law involving statutory interpretation. Accordingly, Spotts contends our standard of review is unlimited. But this court has already determined that an abuse of discretion standard applies when an appellate court reviews a district court’s determination as to whether mitigating circumstances presented under K.S.A. 2006 Supp. 21-4643 are substantial and compelling. See Thomas, 288 Kan. at 164; Ortega-Cadelan, 287 Kan. at 165. Spotts’ argument here is rejected. This court will continue to apply an abuse of discretion standard in these cases. Judicial discretion is abused “when no reasonable person would take the view adopted by the district judge. [Citation omitted.]” State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005).
Spotts argues his case presents substantial and compelling reasons for departure based on the following mitigating circumstances: (1) no prior sexually motivated convictions; (2) he took responsibility for his actions and showed deep remorse for what happened; (3) the no contest plea saved the victim from having to testify at trial; (4) the sexual acts were not committed by force or threat of force; and (5) Spotts was taking an antidepressant and prescription sleep aid when the offenses occurred and “just wasn’t thinking right.” Spotts also contends he would serve a considerably long sentence even if the durational departures were granted.
But the State argues the district court was justified in denying departure because: (1) Spotts had a substantial criminal history with numerous prior person felony convictions, all of which resulted in a severity level A criminal histoiy score; (2) Spotts was on felony parole at the time of the offenses; (3) Spotts understood the victim was 12 years old and repeatedly engaged in sexual intercourse with her; and (4) the medications Spotts was taking were for anger control, stress, and to aid with sleep.
This court has determined the statutoiy language dealing with departure sentences is clear and unambiguous. Ortega-Cadelan, 287 Kan. at 164. The statute plainly provides that a judge is required to impose a life sentence “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 2006 Supp. 21-4643(d). The statute establishes a two-step procedure. First, the judge reviews mitigating circumstances. Second, the judge determines if there are substantial and compelling reasons for a departure. Ortega-Cadelan, 287 Kan. at 164.
The sentencing transcript in this case shows the district court heard and reviewed the mitigating circumstances offered by the defendant and the arguments against the downward departures made by the State. The district court then explained why the mitigating circumstances listed by the defendant did not justify a finding of substantial and compelling reasons to impose downward departures. Reasonable people could agree with the district court’s assessment.
The district court did not abuse its discretion by denying Spotts’ motion for downward durational departure sentences.
Affirmed.
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The opinion of the court was delivered by
Beier, J.:
Rural Water District #2, Miami County, Kansas, appeals the district court’s decision affirming an appraisers’ award of $133,200 for territory annexed by the City of Louisburg. We discern five potential questions raised by this appeal; (1) Were the appraisers and the district judge required as a matter of law to consider or award going concern value in arriving at the award amount? (2) What was die appropriate procedure to be followed in a district court action to challenge an appraisers’ award under K.S.A. 12-527? (3) What standard of review or standard of proof was to be applied in district court? (4) If the district judge employed the appropriate procedure and applied the correct standard of review or standard of proof under K.S.A. 12-527, was the process adequate to satisfy the Fifth' Amendment? and (5) If the district judge employed the appropriate procedure and applied the correct standard of review'or standard of proof, and the process was adequate to satisfy the Fifth Amendment, did the Water District carry its burden of demonstrating that the appraisers’ award amount was unreasonable?
Factual and Procedural History
Rural Water District #2 (the Water District), established in the 1960s as a quasi-municipal corporation, serves approximately two-thirds of Miami County, or approximately 252,590 acres, including the land surrounding the City of Louisburg (the City).
The city, in 37 annexations, annexed approximately 1,900 acres of the Water District’s service area. The annexed land included 22 meters serving customers and 500 linear feet of 2-inch service line.
After the annexations, the Water District filed a petition for mandamus and mandatory injunction in district court, seeking an order requiring the City to appoint a qualified appraiser and follow the process established in K.S.A. 12-527. K.S.A. 12-527 provides:
“(a) Whenever a city annexes land located within a rural water district . . . , the city shall negotiate with the district to acquire title to all facilities owned by the water district and used for the transportation or utilization of water distribution to the water district benefit units within the area annexed by the city. Title shall vest in or become the property of the city upon payment by the city to the water district of the reasonable value of such property, as agreed upon by the governing body of the city and the board of directors of the district. If the district is unable to reach agreement with the city on the reasonable value for such facilities, then the reasonable value shall be determined in the following manner:
(1) The district and the city shall each select one qualified appraiser and the two appraisers so selected shall then select a third appraiser for the purpose of conducting appraisals so as to determine reasonable value of the property, facilities and improvements of the district annexed by the city.
(2) The agreement or decision of at least two of the three appraisers shall be the fair market value presented to the city for payment and the district for acceptance.
(3) If either the district or the city is dissatisfied with the decision of the appraisers, then the district or the city may institute an action in the district court to challenge the reasonableness of the value determined by the appraisers.”
After the Water District filed its petition, each party appointed an appraiser. Although the district judge ordered the parties’ designated appraisers to select a third appraiser, it appears from the district judge’s ultimate written decision that he chose the third appraiser.
The district judge then instructed the panel of three appraisers on its role in arriving at a reasonable value for the annexed territory:
“1. ‘Reasonable value’ means the value of the property, facilities, and improvements as determined by you. Reasonable value is that amount in terms of money that such property, facilities and improvements are worth as you shall determine. Reasonable value means full compensation for everything or element of value taken, and that nothing less than such reasonable compensation can be legally awarded.
“2. In determining the compensation to be allowed, you must give consideration to all factors you determine that have bearing on the reasonable value. There is no factor excluded or mandatorily included. You may determine (1) whether or not any compensation is owed, and (2) if compensation is owed, what is the reasonable value thereof.
“3. In determining reasonable value, you should consider any element of value including the going concern value and the value of physical assets, but your consideration must not be speculative, conjectural, or remote.
“4. [The Water District] is entitled to full reasonable compensation for all property, facilities and improvements annexed.”
The appraisers conducted a 2-day hearing, recorded by a court reporter, in which the parties provided extensive evidence supporting their positions. The Water District’s expert witnesses valued the annexed territory at $8,490,000 and $12,895,898. The City’s expert witness valued the territory at $65,200.
Two of the appraisers on the panel set the reasonable value for the Water District’s award at $133,200; they did not explain how they arrived at this figure. The appraiser selected by the Water District dissented, stating: “[I]t is my opinion that the value computed by the other appraisers did not include all of the elements contemplated by [K.S.A. 12-527], the instructions to the appraisers, and . . . the evidence presented at the hearing.” He opined that the two other appraisers erred by not awarding an amount for the potential value related to the right to serve annexed areas or the costs the Water District incurred in preparing to serve those areas. Further, he criticized the majority’s valuation opinion for failing to include “at least a brief description of the rationale used and the items considered or not considered.”
The Water District filed a petition in the district court to challenge the reasonableness of the award and argued that it was entitled to a trial de novo. In response, the City argued that no trial de novo was required and that the district court’s standard of review should be merely whether there was substantial competent evidence in the record to support the award.
The district judge determined that the standard of review should be whether there was substantial competent evidence to support the appraisers’ award. He then ordered that the parties submit only evidence already presented to the appraisers — either on the record or by reading the hearing transcript aloud. The district judge also placed the burden on the Water District to prove the appraisers’ award was unreasonable, a feature of the procedure the Water District does not dispute. The district judge further stated that he would not adjust the appraisers’ award unless he concluded it was so outside a “zone of reasonableness” that it was unlawful.
During the proceedings in district court, the City acknowledged that the appraisers should have considered the going concern value of Water District’s property, facilities, and improvements. But it contended that the Water District erroneously expected to receive the value attached to an imagined right — including the present value of theoretical future customers, based on an incorrect population density calculation.
The district court affirmed the appraisers’ $133,200 award, holding the Water District to a negative fact finding standard that demanded it demonstrate the appraisers’ award was based on an arbitrary disregard of undisputed evidence or an extrinsic consideration such as bias, passion, or prejudice. Moreover, the district court discounted the precedential value of City of DeSoto v. Consolidated Rural Water District No. 6, 23 Kan. App. 2d 407, 930 P.2d 624, rev. denied 261 Kan. 1084 (1997), in which a panel of our Court of Appeals had remanded an appraisers’ award for an evidentiary hearing and consideration of going concern value. The district court reasoned that neither City of DeSoto nor K.S.A. 12-527’s legislative history required an award to include the value to be derived from future customers; such avalué should be included in an award only if it would be reasonable to do so. Finally, the district judge focused on the legislative history of a 1987 amendment to the statute, in particular, a letter written by legislator Robert Vancrum that suggested a specific valuation formula was deleted from the statute purposely, thus enabling appraisers to consider any element of value in setting an award.
The Water District appealed and filed a motion requesting this case be transferred to this court. Our court granted the motion.
Going Concern Value
The question of whether the appraisers and the district judge were required as a matter of law to consider or award going concern value in arriving at an award requires analysis of K.S.A. 12-527. Our court’s review of questions of statutory interpretation or construction is de novo. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 204 P.3d 1156, 1158 (2009).
The most fundamental rule of statutory interpretation and construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). The court’s first task is to determine “the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
‘When a statute is plain and unambiguous, we must give effect to its express language, rather than determine what the law should or should not be. We will not speculate on the legislative intent and will not read the statute to add something not readily found in it. If the statute’s language is clear, there is no need to resort to statutory construction.” Graham, v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).
“If, on the other hand, a plain reading of the text of a statute yields an ambiguity or a lack of clarity, statutory construction becomes appropriate. In such circumstances, a court must move outside the text of the provision at issue and examine other evidence of legislative intent, such as legislative history, or employ additional canons of statutory construction to [determine] the legislature’s meaning.” Board of Leavenworth County Comm’rs v. Whitson, 281 Kan. 678, 685, 132 P.3d 920 (2006).
Moreover, if constitutional interpretation of a statute is required, our court has held:
“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. This court not only has the authority, but also the duty, to construe a statute in a manner that it is constitutional, if the same can be done within the apparent intent of the legislature in passing the statute. [Citation omitted.] However, we may not rewrite a clear and unambiguous statute to make it pass constitutional muster. [Citation omitted.]” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629-30, 176 P.3d 938 (2008).
The plain language of K.S.A. 12-527 is nonspecific and internally variable. A city acquires “title to all facilities owned by tire water district and used for the transportation or utilization of water distribution to the water district benefit units within the area annexed by the city,” and it is required to pay a water district “the reasonable value of such property.” If no agreement is reached on the “reasonable value for such facilities,” then the “reasonable value” will be determined by the procedures set forth: (1) Three appraisers will conduct appraisals- to determine the “reasonable value of the property, facilities and improvements of the district annexed by the city”; (2) the decision of at least two of the three appraisers “shall be the fair market value” to be paid; and, (3) if the parties disagree with the appraisers’ award, the reasonableness of the “value” can be challenged in district court.
We conclude from these assorted formulations that K.S.A. 12-527 contemplates that the appraisers’ and, possibly later, the district court’s calculation of the reasonable value covers at least the value of facilities, property, and improvements. The statute makes no mention of going concern value.
Given the statute’s silence on this precise point, we must look beyond its plain language to determine whether the concept was meant to have a role in the calculation as a component of the reasonable value of facilities, property, and improvements or as necessary additions to it.
Examining the legislative history of K.S.A. 12-527, we learn that the statute was originally enacted in 1968. At that time, the statute required an annexing city to pay the value of:
“[F]acilities used for the transportation or utilization of water belonging to the water district. ... In addition to compensation for such physical facilities the city may pay to the water district an amount equal to that portion of outstanding indebtedness of the dstrict which is properly attributable to the portion of the water district annexed by the city.” L. 1968, ch. 80, sec. 1.
The 1968 statute provided that the value of “such property” would be determined “as agreed by the governing body of the cily and the board of directors of the district, or if such agreement is not made, then as determined by the city.” If a city’s unilaterally set value was disputed, the statute permitted a district to “bring an action in the district court to determine the reasonableness of the amount of compensation fixed and determined by any such city.” K.S.A. 1968 Supp. 12-527(a).
The legislature amended K.S.A. 12-527 in 1986. While the initial description of the value to be paid remained the same, the legislature then described “reasonable value” and required consideration of certain bonded indebtedness:
“(b) Such compensation shall include an amount to reimburse the district for any bonded indebtedness of the district existing at the time the annexation ordinance took effect and attributable to the annexed area based on the following factors:
(1) The cost of the construction of the facilities within the annexed area in proportion to the construction costs for the entire district at the time of annexation;
(2) the number of benefit units connected to and served within the annexed area in proportion to the number of benefit units connected to and served by the entire district at the time of annexation; and
(3) the current revenue received from benefit units within the annexed area in proportion to the current revenue received from all benefit units of the entire district at the time of annexation.” K.S.A. 1986 Supp. 12-527(b).
The 1986 version of the statute still provided in the first instance for an agreement between a city and a water district on value; failing that, for the city to set the value; and, in the event of a disagreement, for the water district to “bring an action” in district court to determine the reasonableness of the value set by the city. K.S.A. 1986 Supp. 12-527(a).
The next year, 1987, the legislature passed another amendment to K.S.A. 12-527. The governor, however, vetoed this amendment. The language the governor rejected shifted the power to set a value unilaterally from cities to water districts. It also listed specific “factors” to be among those included in “reasonable value”:
“(1) An amount to reimburse the district for any bonded indebtedness of the district existing at the time of payment by the city and attributable to the annexed area based upon the ratio of the benefit units in the annexed area compared with the total benefit units served by the district; and
“(2) an amount to reimburse the district for all the facilities to be transferred to the city based upon the ratio of the benefit units in the annexed area compared with the total benefit units served by the district, applied to the original construction cost adjusted to the current construction value and depreciated at a straight line rate over a forty-year period. The depreciated reduction of value shall be applied for the actual number of years the system has been in service or 30 years whichever is the lesser of the time expended; and
“(3) an amount equal to the gross revenue loss for the immediate past one business year from those benefit units in the annexed area or the actual current benefit unit costs for those benefit units in the annexed area whichever is the greater.” H.B. 2480
Ultimately in that session, the legislature passed and the governor signed a later bill amending K.S.A. 12-527 to its current format. This version omitted the language vetoed by the governor earlier that year and that portion of the language added in 1986 that had required consideration of certain bonded indebtedness and set forth the factors used to determine it. In support of this second effort at a 1987 amendment, Representative Vancrum wrote a letter to the House Energy Committee explaining the new language. Vancrum said that the amendment would force cities to pay for a water district’s assets and customer base; would permit appraisers to consider any element of value; and would make the statute’s language comparable to that used in K.S.A. 66-1, 176, which requires “fair and reasonable compensation” when annexation affects retail electric suppliers.
In addition to the legislative history described above, case law may guide us to a decision in this case. Although K.S.A. 12-527 has rarely been the subject of litigation, the Court of Appeals addressed the meaning of its current language in City of DeSoto. In that case, DeSoto annexed land belonging to the largest existing customer of Consolidated Water District No. 6, arguing it should pay only for the value of the water district’s physical facilities located on the land. The water district sought compensation for the going concern value of the land taken. Although both parties, following K.S.A. 12-527, had selected appraisers, DeSoto brought a declaratory judg ment action in district court to determine the correct method for arriving at a reasonable value under the statute. This action was brought before the appraisers had settled on an amount. City of DeSoto, 23 Kan. App. 2d at 408-09.
The district court initially declined to determine the correct statutory method, ordering the appraisers to determine the value under each of the parties’ suggested methods. The appraisers valued the physical assets at $19,300 and the going concern value at $41,000. City of DeSoto, 23 Kan. App. 2d at 409. Without further hearing, the district court granted summary judgment to the water district in the amount of $41,000, holding:
“ ‘[T]he term reasonable value used in K.S.A. 12-527 is an open ended term granting to the appraisers . . . the discretion to consider whatever evidence they deem to be relevant in determining the reasonable value of the property taken. . . . K.S.A. 12-527 does not limit the value of the property taken to the value of the physical property taken.’ ” City of DeSoto, 23 Kan. App. 2d at 409.
DeSoto appealed. Reviewing K.S.A. 12-527’s language and legislative history, the Court of Appeals endorsed the district court’s decision that going concern value should be considered in the setting of an award under the statute.
“[A]ppraisers should be instructed to take into consideration the going concern value of the facilities within an annexed area in determining fair market value. Such an approach recognizes and properly considers not only the physical assets taken by a city but also the going concern value, which a city receives and a water district loses. To interpret the statute as only providing for the physical value of the assets would financially damage a water district to the advantage of a city. We do not believe that the legislature intended such an unfair outcome.” City of DeSoto, 23 Kan. App. 2d at 411.
Nevertheless, the Court of Appeals reversed and remanded the case for a district court evidentiary hearing, because the parties were never “given an opportunity ... to challenge the reasonableness of the appraisal before the entry of summary judgment.” City of DeSoto, 23 Kan. App. 2d at 411.
Based on the legislative choice evident in the current general wording of K.S.A. 12-527, as opposed to the specificity of its earlier iterations, and on the content of the Vancrum letter and on the common sense of the Court of Appeals’ decision in City of DeSoto, we hold that going concern value is a potential component of “reasonable value,” as that term is used in K.S.A. 12-527. As a matter of law, under the open-ended statute, going concern value should be considered for inclusion in any appraisers’ award and any district court’s reconsideration of the same in district court.
In this case, however, this holding does not necessarily take the Water District where it wants to go. The record shows that the appraisers were instructed explicitly by the district judge to include going concern value in their calculus. It is obvious that the appraisers and the district court understood the possible importance of this element. Consistent with K.S.A. 12-527, the appraisers were free to decide whether going concern value was pertinent and, if so, the amount the evidence demanded be attributed to it as part of the reasonable value of the annexed territory. Any re-examination of the award in the district court was governed by the same legal standard.
Thus the Water District’s complaint actually is not that the appraisers were prevented from considering or failed to consider going concern value, but, as the dissenting appraisers’ comments made clear, that they did not place a high enough number next to that potential component of reasonable value. The trouble with this is the statute’s undifferentiated, or, perhaps, egalitarian approach. No city and no water district is irrevocably bound to any particular component or any specific formula in the presentation of evidence or argument about “reasonable value” under K.S.A. 12-527. The appraisers in this case and in any similar water district annexation case may evaluate any and all factors bearing on “reasonable value.” They may assign those factors any or no weight and any or no dollar amount, as compelled by the evidence and its persuasive force. There will be times when going concern value is enormously influential and a high-doflar component of reasonable value. At other times, going concern value will have little impact and may reasonably be set at zero. The statute allows for the entire continuum of outcomes; any point on that continuum may be selected.
Procedure in District Court
We now turn to the question of whether the district judge employed the appropriate procedure in the Water District’s challenge to the appraisers’ award under K.S.A. 12-527. This question also requires analysis of K.S.A. 12-527. Thus our standard of review is unlimited. Higgins, 288 Kan. at 361.
The Water District asserts that it was entitled to a full opportunity to trial de novo in the district court, including any necessary discovery and a completely new factfinding before its choice of a district judge or jury without any limitations arising from the earlier proceeding before the appraisers. It advances five arguments on this issue: (1) The original language of K.S.A. 12-527 permitted full judicial review; (2) the phrase “institute an action,” as used in the current version of K.S.A. 12-527, indicates that a challenge to an appraisers’ award is not an appeal but a new action eventually leading to trial; (3) City of DeSoto requires that a district court’s review be de novo; (4) K.S.A. 12-527 is similar to K.S.A. 26-508 governing eminent domain, which requires de novo review of an award; and (5) K.S.A. 12-527 should not be compared to K.S.A. 77-607, which pertains to review of an agency adjudication, because agencies are required to make factual findings while appraisers are not.
In response, the City contends that the legislature did not use the phrase “de novo” in K.S.A. 12-527, although it has done so in other statutes. The City also argues that a district court should treat an appraisers’ award like an agency decision.
The Water District’s first argument — that the original language of the statute somehow compels trial de novo — is without merit.
First, we cannot imagine a situation in which we would be justified in ignoring updated and applicable language of a statute in favor of interpreting and applying conflicting language used in an earlier version of it. The constitutional doctrine of separation of powers and the prudential considerations of limited institutional competence command that we work with the content of a statute as it is, not as it was.
Second, K.S.A. 12-527(a)(3) has provided since 1987: “If either the district or the city is dissatisfied with the decision of the ap praisers, then the district or the city may institute an action in the district court.” (Emphasis added.) The statute’s 1968 and 1986 versions provided a city the power to establish the amount of compensation it would pay to a water district for annexed territory. These versions then provided that, if the water district disagreed with the city’s amount, the district’s “board of directors [may] bring an action in the district court to determine the reasonableness of the [amount of compensation] fixed and determined by any such city.” (Emphasis added.) We see no distinction of meaning or function among the operative language “may bring an action” in 1968, “may bring an action” in 1986, and the current “may institute an action.” That being said, we also are not persuaded that the Van-cram letter’s casual reference to the district court proceeding as an “appeal” rather than a de novo review or a new trial dictates a ruling in favor of the City on this issue. In short, the legislative history of this particular statute gives us nothing particularly enlightening on the nature and extent of the procedure to be employed by the district court.
The Water District’s second argument — that the phrase “institute an action” necessarily implicates an expansive trial de novo rather than a limited appeal — prompts us to look beyond this particular statute to other places where our legislature has employed the phrase. We see it fairly frequently. See K.S.A. 21-4012 (“the department of health and environment, or local department of health, may institute an action in any court of competent jurisdiction to enjoin repeated violations of this act”); K.S.A. 21-4017 (same); K.S.A. 40-3619 (“[t]he rehabilitator, upon an order for rehabilitation, within one year or such other longer time as applicable law may permit, may institute an action or proceeding on behalf of the insurer”); K.S.A. 40-3627 (“[t]he liquidator . . . may institute an action or proceeding on behalf of the estate); K.S.A. 44-806a (“[o]n complaint of the secretary of state that any labor organization has failed to make the filing required by said statutes, it shall be the duty of the county or district attorney, or the attorney general, to institute such action in the district court of Shawnee County, Kansas”); K.S.A. 55-215 (“[t]he holder of such hen shall within six months institute an action to foreclose and enforce the lien in the manner now provided by law, or shall within six months institute an action in attachment or replevin”); K.S.A. 58-3064 (“the commission may institute an action in the district court of the county in which the person resided ... for an injunction to enforce compliance with the act or rules and regulations”); K.S.A. 60-4115 (“the plaintiff s attorney may institute an action in the district court against any person”); K.S.A. 65-1828 (“[t]he board may institute such actions in the courts of competent jurisdiction as may appear necessary to enforce compliance with [sanitation standards]”); K.S.A. 79-2801 (“it shall be the duty of the county attorney or county counselor to institute an action in the district court, in the name of the board of county commissioners ... by filing a petition with the clerk of the court”). In addition, this court has used the phrase “institute an action” when referring to a typical litigation eventually promising a full trial in the first instance in district court. See Teepak, Inc. v. Learned, 237 Kan. 320, 329, 699 P.2d 35 (1985) (“whether the action is barred by Teepak’s failure to institute an action against Learned prior to the running of the statute of limitations relative to medical malpractice is rendered moot”); Johnson v. Schrader, 150 Kan. 545, Syl. ¶ 1, 95 P.2d 273 (1939) (“[w]here a party institutes an action in a district court of a particular county to partition lands within the county, and the defendants file their answers, and the court thereafter renders a judgment within its power, the judgment is void”); Martin, Governor v. State ex rel. Hall, 39 Kan. 576, Syl. ¶ 18 P. 472 (1888) (“[a]s a general proposition, a county attorney of one county cannot institute an action, in the nature of a public prosecution, in the name of the state, in another county [other] than his own”).
Although this essentially “plain language” or “ordinary meaning” argument cuts in favor of the Water District, it is not fully and finally dispositive on the nature of the process in district court. In each of the other statutes and in each of the three cases cited above for comparison, no prior full adversary proceeding in another forum is contemplated before the commencement of a district court action. K.S.A. 12-527, in contrast, sets up an award process before a panel of appraisers that at least practically precedes, and may ehminate the theoretical or practical need for, any district court involvement. Indeed, in this case, the proceedings before the appraisers amounted to a deluxe model. The appraisers heard direct and cross-examination of witnesses and legal argument. They were instructed by the district court on their task. A formal record was taken and transcribed. The Water District is correct that this unique procedural history, launched as it was by the City’s initial refusal to follow the statutory appraisal procedure, does not control our analysis of the statute, which must govern generally in the future as well as resolve the dispute that arose between these parties in the past. Nevertheless, the existence of a more or less elaborate appraisal process makes interpretation of K.S.A. 12-527 more complex than it would be in a simple plain language or ordinary meaning case.
The Water District’s third argument that City of DeSoto establishes its right to a trial de novo in the district court over reads that case. The design and scope of district court procedure were not at issue in City of DeSoto. The Court of Appeals’ reversal and remand to district court for an evidentiary hearing on the issue of reasonableness may have suggested that evidence beyond the universe of material on which the appraisers had based their decision would be admitted in the hearing, but it did not place that issue beyond principled dispute.
Both the Water District’s fourth argument and the City’s response use statutory language governing eminent domain as a reference point. K.S.A. 2008 Supp. 26-508 on eminent domain procedure provides:
“(a) If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, such party, within 30 days after the filing of the appraisers’ report, may appeal from the award by filing a written notice of appeal with the clerk of the district court. The appeal shall be deemed perfected upon the filing of the notice of appeal. In the event any parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three days after the date of the perfection thereof. An appeal by the plaintiff or any defendant shall bring the issue of damages to all interests in the tract before the court for trial de novo. The appeal shall be docketed as a new civil action, the docket fee of a new court action shall be collected and the appeal shall be tried as any other civil action. The only issue to be determined therein shall be the compensation required by K.S.A. 26-513, and amendments thereto.”
Unfortunately, review of the eminent domain statute for assistance in this case obscures rather than illuminates. The legislature enacted K.S.A. 26-508 in 1963, 5 years before it enacted K.S.A. 12-527. Although K.S.A. 26-508 has been amended several times since, it has consistently characterized the district court action initiated by the party unhappy with an appraiser s award as an “appeal.” At the same time, it has explicidy specified that the district court shall conduct a “trial de novo.” K.S.A. 12-527 simply uses neither term. The fact that the distinct language of K.S.A. 26-508 has been interpreted and applied one way or the other does not inevitably demand a similar or a different interpretation and application of K.S.A. 12-527.
Likewise, the statutory language governing review of agency decisions found in K.S.A. 77-606, et seq., again compared by both the Water District and the City, is of limited utility. As the Water District points out, agency adjudications require findings of fact while appraisals under K.S.A. 12-527 do not. This distinction alone goes a long way toward explaining the legislature’s explicitly narrow prescription for court review of agency adjudications, requiring them to be upheld if supported by substantial competent evidence in the record. See. K.S.A. 77-621(c)(7). The legislature has not chosen to exercise similar control in K.S.A. 12-527.
Aside from the parties’ arguments on appropriate district court procedure, we note that the district judge in this case relied in part on a comparison of K.S.A. 12-527 to K.S.A. 66-1, 176, which codifies annexation procedures for retail electric suppliers, which Vancrum had mentioned. As with the eminent domain and administrative procedure statutes, however, there are marked differences between the language used in K.S.A. 12-527 and K.S.A. 66-1, 176. K.S.A. 66-1, 176 provides for fair and reasonable compensation to be paid to a terminated retail electric supplier. The amount is to be “mutually agreed upon” and shall be the sum of certain factors. See K.S.A. 66-1, 176(c).
“In the event that the parties are unable to agree upon an amount of compensation to be paid . . . either party may apply to the district court having jurisdiction where any portion of the facilities are located, for determination of com pensation. Such determination shall be made by the court sitting without a jury.” (Emphasis added.) K.S.A. 66-1, 176(d).
Finally, our own research efforts have turned up no helpful law from our sister states. Iowa appears to be the only one of them with a statute somewhat similar to K.S.A. 12-527. See Iowa Code § 357A.21 (2000). But it provides for arbitration if a water district and city fail to agree on a fair price. Furthermore, like K.S.A. 12-527, Iowa Code § 357A.21 has rarely prompted litigation. The one case referencing it does not bear on the issue before us. See Clay Regional Water v. City of Spirit Lake, Iowa, 193 F. Supp. 2d 1129 (N.D. Iowa 2002) (staying litigation to determine water district and city boundaries until pending case in district court complete).
All of the above-referenced potential sources for guidance on the appropriate procedure to be employed by the district court under 12-527, standing alone and in combination, leave much to be desired. We conclude, however, that the legislature’s use of the nonspecific “institute an action” language in K.S.A. 12-527 endows a party dissatisfied with an appraisers’ award with the right to trial de novo in the district court on the issue of the reasonableness of the award. This trial de novo means the “action” instituted under the statute may include all of the conventional attributes of a civil lawsuit, e.g., discovery, exchange of expert reports, the possibility of a jury. The party challenging an appraiser’s award bears the burden of demonstrating it to be unreasonable.
In arriving at this decision, we rely on the admittedly imperfect analogs of other statutes using the “institute an action” language. We trust that, if we have misapprehended the legislature’s intention in employing this phrase in this context, it will say so through prompt amendment of K.S.A. 12-527.
Because the Water District was not permitted a trial de novo in the district court when it challenged the appraisers’ award in this case, we must reverse and remand for the appropriate procedure to be employed. We recognize the district judge’s laudable sensitivity to the Water District’s rights through his design and supervision of a Cadillac appraisal process between the warring parties before him but rule that it cannot be viewed as a substitute, even in this single case, for what we view as required by the governing statute. The lack of clarity in that statute led directly to this result, despite the judge’s substantial efforts to reach a balanced and just outcome.
Standard of Review or Standard of Proof
Before leaving the subject of the expectations on remand, we must also address the standard of review or standard of proof to be applied in the district court.
The focus of the trial de novo to which we have held the Water District to be entitled is reasonable value. The district court was correct in stating that the appraisers’ award should not be overturned and replaced unless it falls outside a “zone of reasonableness.” He was not correct to the extent he determined that the appraisers’ award must be upheld if supported by substantial competent evidence or that the Water District must overturn a negative factual finding, i.e., show an arbitrary disregard of undisputed evidence or an extrinsic consideration such as bias, passion, or prejudice. Both the substantial competent evidence and the negative factual finding standards are appellate standards of review generally unsuitable for application as standards of proof in a trial de novo. See, e.g., State v. King, 288 Kan. 333, 204 P.3d 585 (2009); Owen Lumber Co. v. Chartrand, 283 Kan. 911, 928, 157 P.3d 1109 (2007). Furthermore, to the extent the appraisers implicitly made any negative factual finding, they did so without discrimination between the Water District and the City. They adopted an amount somewhere between those advanced by the parties.
As mentioned, the Water District concedes that it bears the burden of proving the appraisers’ award unreasonable, as it is the party challenging it. The district court factfinder, whether ultimately a judge or a juiy, must decide whether the Water District has carried that burden by a preponderance of the evidence, and, if so, the correct reasonable value, based on all of the evidence presented in the district court proceeding.
Fifth Amendment
The next potential issue in this appeal is constitutional adequacy. Because we have held that K.S.A. 12-527 requires that case to be reversed and remanded for employment of the procedure and application of the standard of proof set out above under K.S.A. 12-527, we need not examine whether the rejected procedure and standard met Fifth Amendment requirements. Assuming arguendo that the Fifth Amendment comes into play when a city annexes a territory served by a water district, we hold that the reasonable value contemplated by the statute is equivalent to just compensation under the federal Constitution. This holding is consistent with our obligation to resolve any doubts in favor of a statute’s validity. See Martin, 285 Kan. 625, 629-30, 176 P.3d 938 (2008). In addition, our’ reading of the statute gives any party unhappy with an appraisers’ award all of the process that could possibly be due to it.
Discharge of Burden
Because of our reversal and remand, we do not reach the last potential issue on appeal: Whether the Water District carried its burden of demonstrating that the appraisers’ award was unreasonable. The analysis above means the Water District will have another chance.
Reversed and remanded for further proceedings consistent with this opinion.
Edward E. Bouker, District Judge, assigned.
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The opinion of the court was delivered by
Rosen, J.:
The defendant, Nicole Lynn Cott, was arrested for driving under the influence of alcohol (DUI) and was charged un der K.S.A. 2005 Supp. 8-1567(a), (d). She was also charged with counts of no liability insurance, failure to maintain a single lane, and no seat belt. She entered a guilty plea to the DUI charge but was later allowed to withdraw the plea. The State then recharged Cott in a complaint including the same four counts plus a count of following too closely and a count of aggravated endangering a child under K.S.A. 2005 Supp. 21-3608a(a)(1), a severity level 9 person felony.
At the preliminary hearing on the felony charge, Trooper Nicholas Wright testified that after observing Cott commit several traffic violations, he stopped her and subsequently arrested her for DUI. He also testified that, at the time of the stop, Cott’s 4-year-old son was in the car with her. The boy was asleep in the front seat and was not in any kind of child safety seat, but the trooper could not remember whether he was wearing a seat belt. The Intoxilyzer 5000 test subsequently administered to the defendant showed that she had an alcohol concentration of .147 grams of alcohol per 210 liters of breath.
Following the presentation of evidence, the attorney for the defendant argued the provision found in K.S.A. 2005 Supp. 8-1567(h) that enhances the sentence for DUI when a child of less than 14 years of age is in the car made the two charges against the defendant, DUI and endangering a child, multiplicitous. The State responded that the test for multiplicity is whether each offense requires proof of an element not required by the other offense. Further, the State argued that the sentence enhancement provision is not a part of the “actual offense” and is, therefore, not an element of the crime at all. The district court dismissed the felony count, reasoning that the charge of endangering a child was based upon the principal underlying offense of DUI so that “the more specific 8-1567(h) would trump K.S.A. 21-3608a.” The State subsequently requested and the court granted a dismissal of the remaining misdemeanor counts in order to perfect this appeal.
Although the parties framed their arguments to the trial court in terms of multiplicity, the district court’s decision to dismiss the felony count of child endangerment was based on the court’s conclusion that K.S.A. 2005 Supp. 8-1567(h) dealt more specifically with the conduct at issue in this case than did the felony provisions of K.S.A. 2005 Supp. 21-3608a, precluding the prosecution from charging the defendant with the more general crime. The trial court interpreted the State’s theory of the case to be that “the principal underlying offense for the aggravated endangering a child is the fact that she was driving under the influence of alcohol which would constitute reckless conduct given the fact the child was in the car.”
On appeal, the Court of Appeals, noting that the issue was one of first impression everywhere except Virginia, considered the Virginia case of Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27 (2004). The Court of Appeals observed that Virginia, like Kansas, recognizes that when one statute speaks to a subject specifically and conflicts with another that deals with the subject generally, the specific statute will apply. The court read the Virginia case to suggest the two statutes at issue here are “compatible” and adopted the holding and rationale of Wolfe. State v. Cott, 39 Kan. App. 2d 950, 952, 186 P.3d 826 (2008).
Whether one statute precludes application of another is an issue of statutory interpretation ultimately involving the determination of legislative intent. Interpretation of a statute is a question of law, and an appellate court’s standard of review of a lower court’s statutory interpretation is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008).
K.S.A. 2005 Supp. 8-1567(h) is a sentence enhancement provision that requires an extra 30 days be added to the sentence of an individual convicted of driving under the influence of alcohol or drugs if a child under the age of 14 years was in the car at the time of the offense. The portions of K.S.A. 2005 Supp. 8-1567 relevant to this issue are:
“(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person s blood or breath as shown by any competent evidence ... is .08 or more;
“(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had a child under the age of 14 years in the vehicle at the time of the offense shall have such person’s punishment enhanced by one month of imprisonment.”
K.S.A. 2005 Supp. 21-3608a(a)(1) defines aggravated child endangerment and provided at the time of the offense:
“(a) Aggravated endangering a child is:
(1) Intentionally and recklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health is injured or endangered.”
The finding by the Court of Appeals that the statutes are compatible reflects the general rule of statutory construction that when there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intends to make the general act controlling. In other words, the Court of Appeals, based on Wolfe, found there was no conflict between the provisions of K.S.A. 2005 Supp. 8-1567(h) and K.S.A. 2005 Supp. 21-3608a(a)(l). See 39 Kan. App. 2d at 952-53.
The facts in Wolfe are similar to the facts in this case, except that there the defendant pled guilty to the DUI charge and was subsequently found guilty of child abuse and neglect. He argued that “the Commonwealth was prohibited from prosecuting him for felony child abuse and neglect . . . based upon his act of transporting his son while driving under the influence because [the DUI statute] provides a specific penalty for a person driving under the influence who has a passenger 17 years or younger.” Wolfe, 42 Va. App. at 779. After dismissing the precedent cited by the defendant as unhelpful, the Wolfe court simply declared that “the meaning of the legislative action may be easily discerned from the plain language of the statute” and found that “the legislature intended nothing more than to enhance the penalty for the crime of DUI where transportation of a minor is involved.” 42 Va. App. at 782.
Ultimately, the rule that a general statute should yield to a specific statute covering the same criminal conduct is a rule of statutory construction designed to determine legislative intent and it must yield where there is a clear indication that the legislature did not intend for one statute to be the exclusive mechanism for pun ishing a given activity. State v. Williams, 250 Kan. 730, 734, 829 P.2d 892 (1992) (citing State v. Helms, 242 Kan. 511, 514-15, 748 P.2d 425 [1988]). The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). When interpreting a statute, an appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). The Wolfe court was not considering the Kansas statutes, and we do not so easily ascertain the legislative intent to allow or disallow both charges in the language of the Kansas statutes. Neither the State nor the defendant has pointed to any legislative history elucidating the intent of the Kansas Legislature with regard to the two statutes at issue here. The Court of Appeals stated in its opinion that it had found none, and our research has uncovered none.
When the sentence enhancement provision in K.S.A. 2005 Supp. 8-1567(h) was adopted in 2001, L. 2001, ch. 200, sec. 14, child endangerment existed only as a class A misdemeanor. K.S.A. 21-3608. The statute defining and prohibiting aggravated child endangerment, K.S.A. 21-3608a, was not adopted until 2004. L. 2004, ch. 125, sec. 4. It was amended in 2006 to separate reckless child endangerment from intentional child endangerment. L. 2006, ch. 211, sec. 3. Nothing appears in the legislative history of any of these acts to indicate the legislature considered the other provisions or addressed whether either or both crimes could be charged. The State argues, given that K.S.A. 2005 Supp. 8-1567(h) was enacted prior to K.S.A. 2005 Supp. 21-3608a, there does not appear to be a clear indication that the legislature intended the DUI enhancement provision to be the exclusive mechanism for punishing conduct which is addressed by both statutes.
Kansas case law appears to be well settled on the general rule followed by the Court of Appeals and on the applicability of the rule to criminal cases. The Court of Appeals cited Williams, 250 Kan. at 736, for the rule. In Williams, the defendant was charged with one count of indecent liberties with a child, K.S.A. 1991 Supp. 21-3503, for the alleged sexual molestation of a 14-year-old child. The evidence at the preliminary hearing established that the child was his step-granddaughter. Williams moved to dismiss the complaint, arguing that he should have been charged with the more specific crime of aggravated incest as defined by K.S.A. 21-3603 (Ensley 1988). The State argued that the decision to charge the defendant with indecent liberties with a child rather than aggravated incest was within the discretion of the prosecutor. The district court granted the motion to dismiss, finding the legislature intended the aggravated incest statute to be a statute of specific application in that it relates to particular persons or things of a class, so Williams should have been charged with aggravated incest. This court affirmed. Williams, 250 Kan. at 737.
The Williams court observed: “[F]or the general statute versus specific statute rationale to be applicable to the two crimes, the indecent liberties statute must be viewed as a statute generally prohibiting certain sexual behavior and the aggravated incest statute as applying to the identical prohibited conduct by a person related to the victim.” (Emphasis added.) 250 Kan. at 736. The court examined the elements of the two crimes and concluded that, although they were similar, “the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child. This relationship is not an element in the indecent liberties with a child statute.” 250 Kan. at 736.
In State v. Fritz, 261 Kan. 294, 933 P.2d 126 (1997), the court focused on this language from Williams in a case involving the crimes of theft by deception, K.S.A. 21-3701(b) (Ensley 1988), and loan brokering fraud, K.S.A. 1990 Supp. 50-1017. The court concluded that
“obtaining the victims’ property is central to the theft by deception charges, but immaterial to the loan broker fraud charges. This prohibited act (fraud) under 50-1017 of the Loan Broker’s Act is not the same act (theft) prohibited under what is now 21-3701(a)(2). Thus, the former does not address a specific subject generally addressed in the latter. The two statutes are not in conflict.” 261 Kan. at 304.
Applying the analysis of Williams and Fritz to this case, for the general statute versus specific statute rationale to be applicable to the two crimes, this court would have to find that the child endan germent statute must be viewed as a statute generally prohibiting certain conduct and the DUI statute as applying to the identical prohibited conduct by a person driving while under the influence. See Williams, 250 Kan. at 736. Put another way, this court would have to determine that the DUI sentence enhancement provision proscribes for a certain class of persons conduct which is proscribed generally in the child endangerment statute. See Fritz, 261 Kan. at 302-03.
The Court of Appeals remarked that “this is a close case,” Cott, 39 Kan. App. 2d at 951, but concluded that the statutes created independent crimes and neither prevents the application of the other. This conclusion is supported by reasoning that the focus of K.S.A. 2005 Supp. 8-1567 is driving under the influence of alcohol or drugs, while K.S.A. 2005 Supp. 21-3608a(a)(l) is focused on conduct that intentionally and recklessly places a child under the age of 18 at risk of injury to life or health. Cf. State v. Huser, 265 Kan. 228, Syl. ¶¶ 5-6, 959 P.2d 908 (1998) (holding that evidence of DUI does not, standing alone, amount to reckless behavior); State v. Mourning, 233 Kan. 678, 681-82, 664 P.2d 857 (1983) (same). The two statutes at issue in this case are aimed at preventing different types of behavior, and there is no evident legislative intent to preclude the State from holding the defendant responsible under both statutes when facts are present to support both crimes.
The decision of the Court of Appeals reversing the district court is affirmed. The district court is reversed, and the case is remanded for a new prehminary hearing.
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The opinion of the court was delivered by
Nuss, J.:
In an eminent domain appeal to the district court, a residential subdivision developer and its affiliated homebuilder challenged the court-appointed appraisers’ valuation of a part of their property condemned by a school district. Before their jury trial, the district court granted several school district motions excluding evidence of certain categories of damage claims. A jury later awarded damages of $718,100.
The developer, CWD Investments, LLC, and the homebuilder, Duggan Homes, Inc., appeal those damage-limiting court rulings and the jury’s award. The school district cross-appeals. This court has jurisdiction pursuant to K.S.A. 26-504 and 60-2101(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in granting partial summary judgment to bar several of defendants’ damage claims for their failure to come forward with evidence? No.
2. Did the district court abuse its discretion in granting a motion in hmine to bar several of defendants’ damage claims on the basis that they were not timely or adequately disclosed? No.
3. Did the district court err in refusing to instruct the jury that fair market value could not be determined by the summation of two different valuation approaches? No need to address.
Accordingly, the district court’s rulings and the jury’s verdict are affirmed.
FACTS
John Duggan is a developer, a homebuilder, and a lawyer. He is the President of Duggan Homes, Inc. (Duggan Homes), a home-building company, and a member of FH Investments, LLC, which is itself a member of CWD Investments, LLC (CWD). CWD was formed to develop a residential subdivision called Farmington Hills, located near 55th Street and Clare Road in Shawnee, Kansas.
Unified School District No. 232 (District) condemned 17.914 of Farmington Hills’ 131.51 acres for use as an elementary school. At the time of the taking, the City of Shawnee had approved the plats, but no ground had been broken. It is undisputed that residential development is the highest and best use of the taken properly. As a result of the partial taking, defendants redesigned the remainder of the subdivision.
Court-appointed appraisers valued the partial taking at $626,850. Defendants appealed the award to the district court pursuant to K.S.A. 26-508. The taking was finalized when the District paid the $626,850 into court.
Discovery
Pursuant to a third amended scheduling order, the district court directed that all discovery, except by agreement of counsel, close on December 20, 2004. On or about April 26, 2004, defendants disclosed their three experts, including Duggan, to the District’s counsel. After an assertion that Duggan was not necessarily an expert to the extent requiring a disclosure pursuant to K.S.A. 60-226(b)(6)(B), the disclosure nevertheless provided that he might be offering expert opinions:
“Defendants anticipate that Mr. Duggan will provide testimony concerning, among other things, the best and most advantageous use of the property taken by plaintiff and damages to defendants as a result of the taking. Thus, although Defendants are not required to make this disclosure, Defendants are disclosing Mr. Duggan at this time to the extent Mr. Duggan may be asked to offer or does offer opinions regarding the aforementioned matters.” (Emphasis added.)
On September 14, 2004, defendants responded to the District’s first interrogatories.
Interrogatory No. 3 asked them to “state the fair market value of the entire tract immediately before taking, the fair market value of the remainder after the taking, and the total compensation due as a result of the taking.”
The part of the interrogatory response regarding defendant developer CWD basically concerned its lost profits on the sale of the 57 unimproved lots which were taken:
“Defendants state that the fair market value of the entire tract immediately before the taking as it relates to CWD Investments damages for the taking ranges from $11,394,250.00 to $12,581,100.00 based on the value of the property and the profits from the sale of 364 lots and the fair market value of the remainder after the taking as it relates to CWD Investments’ damages ranges from $9,912,260.00 to $10,973,712.00 based on the value of the property and the profits from the sale of 307 lots.”
The next part of the interrogatory response referred to defendant homebuilder Duggan Homes. It basically concerned damages for lost sales of homes to be built on the 57 lots:
“The fair market value of the entire tract immediately before the taking as it relates to Duggan Homes’ damages ranges from $17,472,000.00 to $21,840,000.00 based on the sale of homes on 364 lots, and the fair market value of the remainder after the taking as it relates to Duggan Homes’ damages ranges from $14,746,000.00 to $18,420,000.00 based on the sale of homes on 307 lots.”
The final part of the response to Interrogatory No. 3 referred to both defendants and set forth the amounts of damages claimed by each:
“The total compensation due Duggan Homes, Inc., ranges between $2,600,000.00 to $3,500,00.00. The total compensation due CWD Investments, LLC ranges between $1,400,000 to $1,700,00 based on the value of the property, the inability of CWD Investments to distribute development costs across the entire 364 lot subdivision as platted and approved by the City of Shawnee, and the inability of CWD Investments to develop and sell 57 lots in Farmington Hills.” (Emphasis added.)
Interrogatory No. 7 asked defendants to detail the facts relied upon to justify or support their damage claims. Their response concerning CWD again mentioned loss of 57 lots and loss of their ability to spread the entire subdivision’s “development” costs over those lots:
“The property was purchased for development as a residential subdivision, and Plaintiff knew of Defendants’ plans to develop the entire tract as a residential subdivision. The entire tract was platted as a residential subdivision, Farmington Hills, as of the taking by Plaintiff. The taking of the property in the Farmington Hills subdivision will preclude CWD Investments from developing and selling 57 lots thereby preventing CWD Investments from utilizing the properly for its best and most advantageous use. The taking will also preclude CWD Investments from distributing development costs, across the entire Farmington Hills subdivision, which originally comprised 364 lots prior to the taking. These costs include to date engineering costs for redesign work, walking trails and an amenity package, the pool tract and cabana, offsite sewer costs, deceleration lanes for Claire [sic] Road, and costs for construction of extension of Clear Creek Parkway and an at-grade intersection at Clear Creek Parkway and K-7 required by the State of Kansas.”
Defendants’ response to Interrogatory No. 7 regarding factual support for Duggan Homes’ damages again simply concerned its loss of ability to build homes on the taken lots:
“The taking will also preclude Duggan Homes from building and selling homes on the 57 lots thereby preventing Duggan Homes from utilizing the property for its best and most advantageous use.”
Defendants expressly reserved the right to supplement their responses to Interrogatory Nos. 3 and 7.
All of defendants’ interrogatory responses were signed by Duggan. In the verification, he swore that he had read them, had the authority to make them on behalf of the defendants, and that such answers were true and correct to the best of his knowledge and belief.
Several weeks after the District’s receipt of these responses, on October 1, and then on November 2, 2004, Duggan was deposed as an authorized representative of both defendants, apparently pursuant to K.S.A. 60-230(b)(5). Consistent with the defendants’ ear lier designation of Duggan as an expert, he testified he anticipated offering expert witness testimony in the case, e.g., “to render opinions based upon the development in question and how we were going to proceed forward and make a profit on that.” On the defendants’ behalf, he now identified four specific categories of claimed damages.
First, Duggan identified lost profits on the 57 taken lots totaling approximately $1,054,500. He calculated each lot would have earned a profit of between $12,000 and $20,000, depending on its location. He calculated the figures by multiplying his estimate of the selling price for the fully developed lots (an average of $65,000 — $75,000) by the historical profit margin he had obtained in his other developments: 25% — 37.5%.
Second, Duggan testified that after reconfiguring the subdivision due to the taking, 10 of the remaining lots would “back up” to the new school. Because he opined that these were therefore less desirable, he devalued them at approximately $35,000 apiece for a loss of $350,000.
Third, Duggan testified that the inability to spread the original 364-lot subdivision’s $900,000 “amenity costs” over the 57 taken lots would result in damages because “the profitability of the remaining lots goes down.”
“And so we still have the expenses of building the amenities; but now we don’t have an extra 57 lots over which to share that expense; and so the profitability of the remaining lots goes down by that number, and we think that number is somewhere between four and eight thousand dollars per unit, that we’re now incurring on top of the costs we would have incurred anyway, because we’re 57 lots short.”
Duggan broke down the $900,000 in amenity costs as follows: $400,000 for monuments, walking trails, and water features; $350,000 for a swimming pool and its facilities; and $150,000 for other amenities (“wrought iron fences, some streets and sewer extensions to the community”). As a result, he calculated losing approximately $500 per lot on the remaining lots, so “[i]t looks like it’s about $155,000 in lost profitability that we have, because we don’t have [all] the lots to spread it [$900,000] out over.”
Duggan identified the fourth and last category as legal and engineering costs incurred for reconfiguring the plats. He estimated these damages as between $40,000 and $70,000.
After Duggan had identified these four categories of damages being claimed by the defendants, he was asked, “Okay. Any other alleged damages?” He responded, “I’m not really sure at this time that I could think of any others.” The District’s counsel added together the monetary amounts Duggan provided for the four categories. Duggan then admitted that their total — $1,629,500—was the defendants’ “maximum” amount of damages being claimed.'
Duggan was also asked to identify the major factors that influence his profits. He testified:-
“General economic conditions: Is the housing market in good shape or bad shape. Competition: What are the prices that your competitors are at on their lot price, comparing their .lots to your lots. Do they have trees, and do they have walk-out lots, or things like that. So your general competition in the marketplace.
“And then I think of the other things that have to do with it are the efficiencies and the way you run your business. Are you borrowing your money at prime. Do you have long-standing relationships with your vendors, so you are getting the best prices. Are you a volume consumer of their products, like street paving, and sanitary pipes, and sewer pipes, so that you know that you’re getting their best prices, because all of those things can drive your competitor’s prices up, if you’re doing a lot of volume.
“So I would say probably those general economic conditions, what your competitors are offering, and what prices they are at, and then your efficiencies that you create, in the way you do your own business, would probably be the main criteria to affect profitability.”
Upon completion of Duggan’s deposition on the second day, he formally waived his right to review the entire transcript, make changes in form or substance, and sign pursuant to K.S.A. 60-230(e).
Two days later the deposition of another defense expert, Dr. Michael Kelsay, was taken. Among other things, Kelsay testified that CWD sustained $705,758 in damages due to the loss of 57 lots, and Duggan Homes would have earned $2,376,506 in profits (reduced to present value) had it built homes on them.
Within the month, the District filed a motion in limine, which was denied. It then filed a motion to reconsider, limiting its request to exclude at trial all evidence regarding defendants’ lost profits on sale of homes yet to be built on the 57 taken lots.
On April 27, 2005, in addressing the motion to reconsider, the district court ruled that “profits from.home sales, per se, will not be considered in determining the compensation. . . . It’s a separate item of damages.” The court stated, however, that it might allow such evidence to be considered “in arriving at the value of the land” if there was evidence that the lost profits “would be a driving factor in increasing the market value” of the taken real estate.
On February 10, 2006, the Friday before the jury trial was to begin on the amount of compensation owed defendants, the district court made another ruling fimiting their damages. The court orally ruled that it was “fimiting the parties and experts to what they said in their depositions . . . and their reports and designation.” This included a particular ruling that “items of damage not specified in the [Duggan] deposition were not going to be presented at trial.” (Emphasis added.)
Mistrial
During defense counsel’s opening statement to the jury the following week, he announced that defendants were seeking damages (as disclosed in Duggan’s deposition) for lost profits on the taken lots; for devaluation of remaining lots backed up to the school; for replatting costs; and for $114,000 (reduced from $155,000) due to the inability to spread $900,000 in amenity costs over all 364 lots.
He also asked, however, for the following: “spreadout” costs of constructing a road from Highway K-7 to the subdivision of $169,000; spreadout costs of constructing a main arterial road through the subdivision of $278,000; spreadout costs of sewer and water fines and asphalt for Clare Road of $102,000; and tax and interest costs in an undisclosed amount. Also included on his damages flip chart shown to the jury was an item identified as “Home Construction $2,168,039.”
The District objected. It asked that to be consistent with the court’s ruling 3 days earlier, that these categories of damages which it asserted were not stated in Duggan’s deposition should be excluded from evidence. The judge first ascertained that he had made such a ruling and asked if defense counsel understood it:
“THE COURT: Do you agree my ruling on Friday was that the defendants’ damages are going to be limited to those items discussed by Mr. Duggan in his deposition?
“[DEFENSE COUNSEL]: Mentioned by him, yes, sir.
“THE COURT: [E]veiybody agrees the starting point was that items of damage not specified in the deposition were not going to be presented at trial.” (Emphasis added.)
However, defense counsel later basically responded that Duggan had generally mentioned damages in his deposition and it was the obligation of the District’s counsel to inquire about the specific types and their corresponding particular amounts:
“THE COURT: ... In Duggan’s deposition the $900,000 figure involving the amenities was mentioned, but none of these numbers that you have up here on the flip chart in red [e.g., spreadout costs of constructing a main arterial road of $278,000], Mr. Hursch, were mentioned.
“[DEFENSE COUNSEL]: That’s correct. Nor was he asked about them, Your Honor, and that’s the critical point.”
The District also objected to the flip chart damages claim of $2,169,039 for “Home Construction” as being barred by the court’s April 27, 2005, order excluding evidence of lost profits on the homes per se. Although the judge overruled the objection, it warned defense counsel, “Now, my ruling was that evidence like this was going to be admissible to the extent that it affected the value of the real estate itself. Now, unless you tie that in, you are looking at a mistrial.”
The District later renewed its objection regarding lost profits on the unbuilt homes. The judge acknowledged that “it’s not black and white that I ruled [in April 2005] that there was to be no mention of these figures, but I think what I did say was they are not to be brought up as potential profits per se for the purpose of compensation to be awarded to the landowner.” The judge ultimately concluded that the jury would consider those “home construction” financial figures for inappropriate purposes:
“Now, it’s true that Mr. Hursh [defense counsel] was very explicit to the jury that they [were] not going to be asking for damages on account of these numbers [for home construction on the flip chart.] . . .
“[But] I don’t think that you can just say to the jury, ‘Okay. Here is a profit figure on house construction of $13,000 or down to $10,000, and that’s going to result in a total loss of profits on home construction.’ And that’s what its title is, ‘Home Construction,’ 2,263,000 reduced to present value of2,168,000 — and then expect the jury to draw any conclusion except you want them to consider those numbers.
“I think now looking at tire [April 2005] ruling and reading that transcript that my ruling was pretty direct, and I did say, ‘No. That kind of evidence is not going to come in except under very limited circumstances,’ and I don’t think we have gotten to those very limited circumstances here.
“Now, what I did say was evidence of lost profit, potential future profits. What I said at page 30 of the transcript was to the extent that you have got a developer who has got some dreams here and to the extent that that developer can show he has a track record and show he has done this at other locations and that he had a plan at the time of taking to do these things and to the extent that at the time of the taking those potential future profits would be a driving factor in increasing the market value and an expert is willing to say that and stake his reputation and if a jury believes it, then I think it could. It could affect the value of the lots and thus the value of the land taken and would be properly admissible.” (Emphasis added.)
The court then granted the District’s request for a mistrial, holding that defense counsel’s showing the jury approximately $2.2 million for “Home Construction,” i.e., in lost profits on sales of homes not built at the time of the taking, was barred by its April 2005 ruling. Retrial was set for May 22, 2006, 3 months later.
Partial summary judgment
Two months after the mistrial, on April 20, the District filed a motion for partial summary judgment. Characterizing many of defendants’ purported damages as lost profits, it first asked the court to preclude “lost profits on the sale of homes to be built on the property.” It also sought preclusion of “lost profits stemming from an inability to allocate the cost of amenities to tire subject property [i.e., $155,000 claimed during Duggan’s deposition, reduced to $114,000 at the mistrial].”
The District argued, inter alia, that the alleged lost profits relating to these amenity costs and to home sales were unique to these defendants and had no rational relationship to the land’s fair market value. It highlighted Duggan’s deposition testimony that defendants’ profits depended in large part on “the efficiencies and the way [they] run [their] business,” and not on the particular ground being developed. It also pointed to Duggan’s deposition testimony to argue that the damages were speculative, e.g., “whether the defendants’ long-standing relationships with vendors will remain intact.” As a further example of speculation, it questioned whether the cost of materials to be used in developing thé subdivision would remain constant.
In defendants’ response, they only disputed one of the District’s facts, No. 11, which states: “The Defendants are also claiming as damages lost profits from Duggan’s inability to build and sell homes on the subject property.” In controverting this fact, defendants contended that they were not seeking lost profits on future homes as a specific item of damage, but were entitled to present “evidence of income” to arrive at fair market value. They “are entitled, as a matter of law, to present evidence to the juiy concerning the potential income stream from an attribute of the property that was taken by plaintiff as a factor considered by the jury in arriving at the taken parcel’s overall fair market value.” In the argument section, they contended:
“Defendants will not specifically ask the jury to award damages for lost profits on home sales. This court has already ruled on that issue. But defendants are entitled to present this evidence for the jury to consider how the property’s intended use could have produced an income stream; therefore, the income producing stream from the taken property is one item that could affect the overall fair market value for the property.”
As for the purported lost profits stemming from an inability to spread the cost of amenities, the defendants, in their additional statement of fact No. 3, stated, in relevant part:
“These [e.g., ‘the additional costs for unallocated development amenities in the amount of $114,000’] are additional costs and expenses directly attributable to Plaintiffs taking and as such are relevant considerations to the determination of fair market value that the jury will make at trial. See Defendants’ Supplemental Answers to Plaintiff s First Interrogatories to CWD Investments, LLC and Duggan Homes, Inc., attached as Exhibit F.”
Defendants explained:
“Because defendants cannot allocate the amenity costs [e.g., $900,000] over a wider number of lots, this fact directly impacts the remaining property. For example, if defendants allocate the amenity costs to the remaining lots that are not taken, then the price for lots becomes exorbitantly high, which affects their ability to sell the" remaining lots and affects the value of the remaining property. As such, defendants are not specifically seeking lost profits as a specific item of compensable damage. But defendants’ inability to allocate the subdivision’s amenity costs to all of the lots taken directly impacts and is certainly tied to the market value of the remaining property. [Citation omitted.] It is a factor that may be considered by the jury in arriving at the overall market value.”
Defendants attached, among other things, a three-page affidavit from Duggan. It related to a subject not at issue on the appeal of the summary judgment: alternative types of access to the subdivision, e.g., from Highway K-7, and their estimated costs.
Among other things, the District’s reply reiterated that the defendants’ claimed damages relating to “amenity costs” were nothing more than lost profits that had no rational relationship to fair market value. It claimed, once again, these amenity costs ($900,000), as well as other lost profits, were unique to Duggan and related solely to how he chose to lay out his subdivision on this raw land:
“A willing buyer might not lay out the subdivision in the same way that Mr. Duggan did, might have different vendor relationships that impact its profitability, or for other reasons, might be able to avoid the alleged lost profits that were unique to Mr. Duggan. It is this very uncertainty that has led the Supreme Court to prohibit the use of lost profits to measure the value of property taken by eminent domain. City of Bonner Springs v. Coleman, 206 Kan. 689, 694-95, 481 P.2d 950 (1971).”
The District again argued that defendants had come forward with no evidence showing that the lost profits are finked to fair market value of the property. It further contended:
“It is not enough for them to make the self-serving argument that the lost profits ‘directly affect the remaining property tract not taken.’ More is required, and it is simply too late in the game for defendants to attempt to offer any expert opinions to establish a connection to fair market value.”
On May 22, after the retrial scheduled for that day had been postponed, the trial judge heard arguments and ultimately granted the District’s motion for partial summary judgment. It characterized the stricken claims as lost profits for which defendants had shown no linkage to fair market value.
“Now, the [City of Bonner Springs v.] Coleman case makes a succinct, accurate statement, “What one man might do at a profit, another might do at a loss.’ . . . I’m still looking for that connection . . . between all of those development expenses and the value of the land to a ready, willing, and able buyer in a free market transaction.
“I’m going to sustain the motion for partial summary judgment, and I’m going to preclude the defendants from claiming as damages [1] lost profits stemming from an inability to allocate the costs of amenities to the subject property and [2] lost profits on the sale of homes to be built on the property. I think those are separate items, probably capable of accurate calculations the defendants have done, but I don’t think the connection between those accurate costs and the value of the land has been made to the Court’s satisfaction, and to the extent I have searched the record, I cant find that connection.
“And I think on that basis, in the absence of such evidence, the relationship between those lost profits and the value of the land has not been established, and so the lost profits may or may not exist. But I think that the ruling of the supreme court in the Coleman case precludes the award of damages based on the profit of a business.
“The [Coleman] Court said that, ‘The profits of a business are too uncertain and depend on too many contingencies to be accepted as any evidence of the usable value of the property upon which the business is carried on.’
“And it seems to me that the principle of law as announced by the supreme court in Coleman is a sound one, and that absent the evidence linking the lost profits to the value of the land, it would be prejudicial to the plaintiff and confusing to the jury to allow the defendants to go into these items oflostprofits.” (Emphasis added.)
During discussion on defendants’ later request in the hearing for an interlocutory appeal, they argued that providing evidence of linkage in response to the motion for partial summary judgment was not yet their obligation.
“In order ... to support a motion for summary judgment, they [District] would have to set forth a statement of uncontroverted fact if there is no evidence tying in these costs to the value of the property remaining. See, they didn’t do that, Judge. Consequently, we weren’t in a position where we can controvert that statement. Had they done so, we would have very simply submitted an affidavit of an expert in the law and fact, Mr. John Duggan, to explain that’s the effect it would have had on the remainder. We think the court has granted a summary judgment when we didn’t have an opportunity to controvert the fact which the Court has just concluded.” (Emphasis added.)
The defendants later reiterated their argument that providing linkage evidence was not yet their obligation:
“So the record is clear, Your Honor, had a statement of uncontroverted fact been presented to us for controversion, we would have controverted that statement of fact. It would have been controverted with two arguments. Number one, an affidavit from John Duggan who as an expert, an owner of the property, and an expert in fact as well, who would have said, ‘No. Any informed buyer of the remaining portion of this property would deduct from its value the costs of amenities that we have included herein and everything else that was included in the statement of uncontroverted fact.’ It would have another paragraph along the lines of, “We believe that any jury would have reached the same conclusion.’ ” (Emphasis added.)
To remedy the problem, defendants then offered to have Duggan testify to this effect at the summary judgment hearing.
The District responded that it had already fulfilled its obligation by pointing out the lack of the defendants’ evidence and that it was now their obligation to proceed:
‘Tour Honor, the defendant [sic-. District] does not have to present evidence to show the lack of evidence. The defendant [sic: District] can simply point the Court to the fact in the motion that there is no evidence to support a critical element of the plaintiff s [sic: defendants’] claim. It is then incumbent upon the party opposing summary judgment to present evidence to the court to overcome that argument.”
The court rejected the defendants’ position and affirmed the grant of partial summary judgment. It reexamined the District’s uncontroverted facts and again characterized the stricken claims as lost profits for which defendants had shown no linkage to fair market value. The judge also held the claims went more instead to the efficiencies of these particular defendants and how they ran their business.
“Now, the fact of the matter is that the statement of uncontroverted facts, as set forth by the plaintiff, cites, I think, the controlling factors here and establish and support the argument that’s ultimately made that the lost profits the defen dants claimed to have suffered as a result of their inability to build homes on and assign amenities costs to the subject property have no relationship to the value. I think that the statement of uncontroverted facts, most specifically Statement Nos. 7, 8, 9, and 10, support the statement and the argument.
“Now, 7, 8,9 and 10 are all noted by the defendants as uncontroverted, although No. 7 it says is uncontroverted but immaterial and then sets out lengthy reasons why they disagree about Statement No. 7. Statements Nos. 8, 9, and 10 the defendants state are uncontroverted.
“Now, what I glean from those findings of fact, that I make based upon the plaintiff s statement of uncontroverted facts, are the essence of the ruling that I have made that the evidence establishes no connection between the profit to be created from the development of this tract of ground and the fair market value.
“To the contrary, I think the statement of uncontroverted facts establishes that the profitability issue is one that relates to the efficiencies of the defendants’ business and the way the defendants run their business.
“And, accordingly, I think that the uncontroverted facts in this case'justify the finding that the Court has made that there’s no genuine issue as to a material fact here, and the Court has and does sustain the motion for summary judgment on that basis.” (Emphasis added.) . ....
Defendants filed a motion to reconsider, attaching a 34-page affidavit from Duggan. In 2 of its 115 paragraphs, it purported to provide the alleged evidentiary linkage between Duggan’s lost business profits, i.e., through unbuilt homés and distribution of amenity costs, and the fair market value of the land. The motion was denied.
Supplementation of interrogatory responses and subsequent motion in limine
On April 21, 2006, the day after the District had filed its motion for partial summary judgment and 1 month before the scheduled retrial, defendants had filed supplemental answers to the District’s interrogatories. The original answers had been supplied 19 months earlier in September 2004. Defendants now detailed their alleged damages in response to Interrogatory No. 3. They reiterated “original categories” of damages from Duggan’s 2004 deposition, e.g., replatting costs.
But, perhaps concerned about the District’s objection to their allegedly added damages at the mistrial 2 months earlier, they also now presented those particular damages first specifically mentioned there: spreadout costs of sewer and water lines and asphalt for Clare Road of $102,000 and spreadout costs of constructing a main arterial road of $278,000. They also increased a particular damage amount specifically mentioned for the first time at mistrial: the cost to construct a road (Clear Creek Parkway) from K-7 to the subdivision now jumped from $169,000 to $1,455,960. Finally, they now assigned amounts to categories of damages first claimed, but unvalued, at the mistrial: interest of $621,000 and taxes of $20,000.
The District quickly responded with another motion in Hmine. Consistent with its understanding of the court’s order the Friday before the mistrial and with its objection (raised but not ruled upon) at the mistrial, it asked that certain damages evidence be excluded. Specifically, it wanted defendants to be prohibited from “mentioning, offering, or introducing evidence concerning specific items of damage that neither John Duggan nor any of Defendants’ experts identified or quantified in reports or depositions.” Concurrent with its motion in Hmine was a related motion to strike defendants’ supplemental responses to the interrogatories setting forth these “new” damages.
The District acknowledged that Duggan had identified and quantified certain alleged damages in his deposition, i.e., the four specific categories and the values asserted for each. It argued, however, that while other damages may have been vaguely mentioned, they were not specifically discussed or quantified during Duggan’s deposition or in defendants’ initial responses to interrogatories. For example, the District recognized that “offsite sewer costs” had been mentioned in the initial interrogatory responses. It claimed, however, that it had been led to beHeve that this factor was included in the $155,000 — now $114,000 — for amenities cost distribution identified in Duggan’s deposition (which included “sewer extensions to the community”). Accordingly, sewer costs could not be in the separate category now asserted for an additional $102,000.
Overall, the District sought to exclude evidence regarding defendants’ lost profits caused by an inabifity to spread out the cost of sewer work, street improvements, a road to the development, water, asphalt, taxes, and interest. The District contended that if these damages were aHowed, the case would have to be delayed even further because significant additional discovery would be required, including the District’s retention of additional expert witnesses, particularly on the engineering issues.
Defendants replied that they had simply supplemented their answers to the District’s interrogatories and that they could not be faulted for the District’s failure to ask pointed questions during Duggan’s deposition. Additionally, they argued that all such evidence went to the fair market value of the land and therefore should be presented to the jury. Defendants claimed that the appropriate solution was for the District to “vigorously cross-examine” their expert witnesses.
During the same May 22 hearing that the court granted the District’s motion for partial summary judgment for lack of evidence connecting lost profits to fair market value, it also fully granted the District’s latest motion in limine. It found that these alleged damages either were not timely, or adequately, disclosed — or both. Accordingly, the court not only prohibited damages for categories that had not been previously identified, but also prohibited damages that had not been quantified for the previously mentioned categories. The judge held it would be unfair to the District to allow defendants to make these particular claims at this late date:
“Now, the itemization of a million and a half dollars for tire Clear Creek [Parkway] extension appears to me to be an item of damage that was not previously disclosed by neither Mr. Duggan nor any of the experts identified pursuant to the scheduling order in this case.
“Now, to [also] allow the defendants at this late date to quantify items of damages for the first time seems inherently unfair to me, and I’m especially concerned if what we are talking about is an [engineering] expert’s opinion as to the probable costs of doing this [e.g., Parkway extension] work.
“The fact that the author of that opinion [engineer] is someone who is undoubtedly a specialist in the field would likely carry significant weight with a jury, and I think it would be unfair to permit the defendant at this hour, literally at the eleventh hour, to come in and go down the road of an undisclosed expert’s opinion, and so I’m going to sustain the motion in limine as to the engineer’s report.
“Now, in similar fashion, I think what Mr. Duggan was asked [during his deposition], the question is: Are there any other items of damage? He had an obligation to answer that question candidly and truthfully. Now, he said, as I understand it, his answer was, ‘No. None that I can think of at this time.’
“Well, it seems to the Court that you just don’t have an oversight as to a $1.5 million item of damages [cost to construct Clear Creek Parkway] in a case like this, and so to the extent the defendant limited itself to show items of damages spelled out in Mr. Duggan’s deposition, then defendant should be bound by those items of damages.
“[T]o the extent that there’s new material that’s been generated since the first trial of this matter, I don’t think that it’s fundamentally fair to permit the defendants to introduce such at this late date. There has to be a conclusion of trial preparation at some point.”
Similar to the court’s damage-hmiting ruling the Friday before the mistrial 3 months earlier, the court now ordered that
“the defendants are prohibited from mentioning, offering, or introducing evidence concerning specific items of damage neither Mr. Duggan nor any of defendants’ other experts have identified in their reports or depositions.”
Consequently, the court also granted the District’s related motion to strike defendants’ interrogatory supplementation.
At the second trial, the District argued that defendants were entitled to no more than $710,000 as just compensation. It relied upon the testimony of Bemie Shaner, a licensed real estate appraiser.
Limited by the trial court’s previous rulings on damages, defendants’ witnesses detailed their losses as follows: the cost of the property actually taken ($409,386); lost profits on the property actually taken ($643,521) (without consideration of home sales profits); school proximity damages to the remainder ($315,000); and expenses to redesign the subdivision ($30,000).
The jury found that the fair market value of tire property was $718,100.
Additional facts will be added as necessary to the analysis.
ANALYSIS
Basically, defendants complain of two different district court rulings that each eliminated several of their damage claims 3 months after the mistrial. They complain about the jury verdict only to the extent these rulings excluded additional evidence of damages for the jury’s consideration. As discussed below, each ruling carries its own standard of review. Each ostensibly concerns the value of the partial taking of the land as defined in K.S.A. 26-513(c).
“If only a part of a tract of land or interest is taken, the compensation and measure of damages is the difference between the fair market value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.”
And fair market value itself is defined as “the amount ... of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for properly in an open and competitive market, assuming that the parties are acting without undue compulsion.” K.S.A. 26-513(e).
Issue 1: The district court did not err in granting partial summary judgment to bar several of defendants’ damage claims for their failure to come forward with evidence.
We have held that “[considerable discretion is vested in the trial court in admitting or rejecting evidence of value” in eminent domain proceedings. City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 (2000). Here, the district court acknowledged the general rule in Kansas prohibiting recovery for lost profits in such proceedings. See City of Bonner Springs v. Coleman, 206 Kan. 689, 694-95, 481 P.2d 950 (1971) (“The profits of a business are too uncertain, and depend on too many contingencies safely to be accepted as any evidence of the usable value of the property upon which the business is carried on.”). In April 2005, however, it ruled that to the extent lost home sale profits were linked by an expert to fair market value, such evidence could be offered on that limited issue.
One year later, the trial court held that defendants failed to present any evidence that linked the claimed loss of profits, both for the sale of future homes and the inability to spread out amenity costs, to fair market value. In granting partial summary judgment against defendants, the court also determined that the profits went more instead to the unique way that these particular defendants conducted their business.
Defendants now renew their arguments made to the district court. They contend that evidence of their inability to spread out costs and of their lost home sales profits is relevant to establish fair market value under the capitalization of income approach stated in K.S.A. 26-513(e). Accordingly, they assert that the “income stream from an attribute of the property taken” should be put to the juiy. They again argue that the District failed to show the trial court that there was no relationship between the fair market value of the remaining property and the lost profits.
The District primarily responds that there was no evidence in the record that these lost profits actually impacted the fair market value and that defendants bear the burden of establishing the link.
Neither party challenges the trial court’s April 2005 ruling requiring linkage between these alleged lost profits and fair market value.
Standard of Review
An appellate court applies the same summaiy judgment rules as the district court. Warner v. Stover, 283 Kan. 453, Syl. ¶ 3, 153 P.3d 1245 (2007). Some of those rules are as follows:
“Summaiy 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.” Warner, 283 Kan. 453, Syl. ¶ 1.
More important to this case, we agree with the United States Supreme Court that the burden is not on
“the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact, even with respect to an issue on which the nonmoving party bears the burden of proof. Instead, ... the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis added.) Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
See also Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (“[Mjovant may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.”).
Once the movant has discharged this initial burden, “[t]he party-opposing summary judgment . . . has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case.” Hurlbut v. Conoco, 253 Kan. 515, 520, 856 P.2d 1313 (1993). See Thom, 353 F.3d at 851. It is not for the court to seek out, but for counsel to designate in the response, the facts that support a party’s position. See Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 1, 739 P.2d 444 (1987).
These particular rules are consistent with one of the principal purposes of the summary judgment rule itself: “ ‘to isolate and dispose of factually unsupported claims.’ ” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). Accordingly, these rules also apply in an eminent domain appeal under K.S.A. 26-508 where neither party bears the burden of proof on the issue of damages.
We have thoroughly reviewed the summary judgment response filed by defendants. Our review confirms the District’s assertion, and the district court’s holding, that the response contains “an absence of evidence to support” these damage claims. Celotex Corp., 477 U.S. at 325. Indeed, defendants virtually admitted to the trial court that their response contained no facts linking the claimed loss of profits, based on both the sale of future homes and the inability to spread out amenity costs, to the property’s fair market value. They apparently made no timely effort to show the evidentiary link, a failure that is attributable to their belief at the trial court and on appeal that the burden was the District’s, as the moving party, to show absence of linkage, and not theirs, as the non-moving party, to show its presence.
Specifically, on appeal defendants again essentially assert that the District was required to set forth a statement of uncontroverted fact asserting there was no evidence linking the profits to the value of the property remaining before they were required to controvert that statement with their facts, e.g., via a Duggan affidavit. Consistent with this assertion, they argue that the District “provided no admission from defendants or affidavit from an expert to substantiate this bald proclamation,” i.e., the lack of linkage. Defendants’ view of the nature and extent of the District’s burden is directly contrary to the holding in Celotex Corp., 477 U.S. at 325. See also Thom, 353 F.3d at 851 (explaining the respective obligations of the moving and nonmoving parties).
Defendants also appear to assert that despite the District’s purported failure to meet its burden, they nonetheless presented sufficient evidence to avoid the entry of summary judgment. We disagree. Our review of their response discloses that die closest they come to meeting their burden is to make general allegations and arguments.
We observe at the outset that Defendants’ response to the only fact contained in the District’s motion that they controverted, No. 11, is a general allegation. As mentioned, that fact states: “The defendants are also claiming as damages lost profits from Duggan’s inability to build and sell homes on the subject property.”
The defendants’ response to this fact made no reference to any evidence in the record, but instead contended:
“11. Controverted. Defendants are not specifically seeking the profits that were lost because they can no longer build and sell homes on the taken property. But defendants are entitled, as a matter of law, to present evidence to the jury concerning the potential income stream from an attribute of the property that was taken by plaintiff as a factor considered by the jury in arriving at the taken parcel’s overall fair market value. See, e.g., Creason v. The United Government of Wyandotte County, 272 Kan. 482, 490, 33 P.3d 850 (2001).” (Emphasis added.)
Indeed, defendants were well aware from the April 2005 ruling, and as recently as the mistrial, that some connective evidence of this specific nature would be required of them. The trial transcript provides:
“THE COURT: [W]hy did you put the 2.3 million and 2.2 million figures up there [home construction on the flip chart]?
“[DEFENSE COUNSEL]: Because those are the figures that the expert has calculated that is generated from those sales. That’s Dr. Kelsay, Your Honor. That’s not Lynn Hursh. That’s the expert.
“THE COURT: And Dr. Kelsay is going to testify that those figures affect the value of the land to what extent?
“[DEFENSE COUNSEL]: To some extent.
“[PLAINTIFF’S COUNSEL]: Your Honor, that’s not in Dr. Kelsay’s report at all. He never mentioned that in his deposition. He is an economist, not a real estate expert.” (Emphasis added.)
Rather than presenting evidence of this connection to the court in defendants’ summary judgment response, they only made similar, general allegations. For example, in the argument section they contended:
“Defendants will not specifically ask the jury to award damages for lost profits on home sales .... But defendants are entided to present this evidence for the jury to consider how the property’s intended use could have produced an income stream; therefore, the income producing stream from the taken property is one item that could affect the overall fair market value for the property.”
Defendants point out they provided their additional Fact No. 3, as previously set forth verbatim in the opinion, to generally assert that the $114,000 for unallocated amenities “were additional costs directly attributable to the [District’s] taking” and were therefore relevant to the fair market value determination the jury would make at trial. As record evidence they attached all their supplemental interrogatory responses, again sworn to and signed by Duggan as defendants’ representative.
The District points out, as more fully discussed in Issue 2, that the district court struck the responses as untimely because their information was not contained in Duggan’s deposition, a decision we affirm as within its discretion. The District is not entirely correct. Although the defendants do not raise this assertion, the supplemental responses’ references to the $114,000 in amenity costs apparently were not barred because Duggan identified this category and provided an amount in his deposition. Nevertheless, we do observe that defendants make no effort to specify which of the supplemental responses support their position, or how. See Supreme Court Rule 141(b) (2008 Kan. Ct. R. Annot. 222) (the response shall contain “any additional genuine issues of material fact which preclude summary judgment . . . with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record”). This court will not speculate or attempt to perform this function for them. See Slaymaker, 241 Kan. 525, Syl. 1.
In sum, defendants are left with their arguments, not facts, concerning an inability to spread the cost of $900,000 in amenities over 57 fewer lots. We note, as one example, that defendants only generally assert that the inability “directly impacts and is certainly tied to the market value of the remaining property. [Citation omitted.] It is a factor that may be considered by the jury in arriving at the overall market value.” Similarly, they only assert: “Because defendants cannot allocate the amenity costs over a wider number of lots, this fact directly impacts the remaining property.”
We acknowledge that Defendants also provided additional statement of Fact No. 4 which stated:
“4. On September 13, 2004, Defendants identified to plaintiff all the elements of their damages in Defendants’ Responses to Plaintiff s First Interrogatories to defendants CWD Investments, LLC and Duggan Homes, Inc. Specifically, Defendants answered Interrogatory Nos. 3 and 7 by identifying the amount of monetary damages they seek and by listing the very same reasons for their damages that plaintiff now complains were never disclosed. See Exhibit G.”
These answers to Interrogatory Nos. 3 and 7, set forth earlier in the opinion, clearly provide no linkage. They merely make allegations of damages.
In short, it is not sufficient merely to argue in a summary judgment response that the fair market value would be “impacted by,” or “affected by,” or “tied to” these lost profits on unbuilt homes and due to unspread amenity costs. Nor is it sufficient to respond to the motion by claiming that such evidence will be provided at trial, as defendants appear to suggest, i.e., “defendants are entitled ... to present evidence to the jury concerning the potential income stream.” See Essmiller v. Southwestern Bell Tel. Co., 215 Kan. 74, 77, 524 P.2d 767 (1974). Rather, once the District pointed out in its summary judgment motion per Celotex that no evidence existed, defendants were required to present some specific evidence in their response supporting their claim, e.g., showing linkage. See Hurlbut v. Conoco Inc., 253 Kan. 515, 856 P.2d 1313 (1993). It is not the obligation of the trial court to search the record for such evidence. See Slaymaker, 241 Kan. 525, Syl. 1.
Just as important, we agree with the district court that these lost profits go more to the unique business practices and efficiencies of these particular defendants. We acknowledge the parties agree that residential development is the highest and best use of the property. Nevertheless, we perceive that many “well informed buyers” in that particular field could approach development of this land differently in their pursuit of profits. See K.S.A. 26-513(e). We recognize, for example, that not every developer of this amount of acreage would agree with Duggan’s numbers and sizes of lots or houses. Nor would every developer, or even most developers, spend $350,000 on a swimming pool and attendant facilities and another $400,000 on monuments, walking trails, and water features.
As mentioned, defendants filed a motion to reconsider the partial summary judgment. They attached a 115-paragraph, 34-page affidavit from Duggan, apparently in an effort to supply the evidentiary linkage that they failed to provide in their response. Such an affidavit was too late for consideration on the summary judgment motion. See Hurlbut, 253 Kan. at 520 (party opposing summary judgment has affirmative duty to come forward with facts to support its claim).
The motion for reconsideration based upon that affidavit was therefore properly denied by the trial court. In Bacon v. Mercy Hospital of Ft. Scott, 243 Kan. 303, 314, 756 P. 2d 416 (1988), we held that the trial court properly refused to consider affidavits attached to a motion to alter or amend a summary judgment previously entered. We stated: “A party may not remain silent in the face of a motion for summary judgment and later claim there is additional evidence to support its claims.” 243 Kan. at 314. The same rationale applies to the defendants’ attempts to defeat summary judgment by offering to have Duggan testify at the hearing on the motion and to their reference on appeal — for the first time — to the mistrial testimony of witness Denis Johnson.
The motion for partial summary judgment was properly granted. Issue 2: The district court did not abuse its discretion in granting a motion in limine to bar several of defendants’ damage claims on the basis that they were not timely or adequately disclosed.
The district court granted the District’s motion in limine and motion to strike the supplemental interrogatory responses submitted 5 days prior. It prohibited, as untimely and prejudicial to the District, evidence of defendants’ inability to spread out the costs of street improvements, sewer work, a road to the subdivision (Clear Creek Parkway extension), water, asphalt for roads, taxes, and interest.
Defendants generally renew their arguments to the district court, contending that the court erred because this evidence was relevant to factors Usted in K.S.A. 26-513(d). They assert that the District cannot claim unfair surprise because it was aware of the evidence they sought to present. Defendants also blame the District for failing to ask specific enough questions in Duggan’s deposition. Finally, they argue that precluding Duggan from testifying was erroneous as a matter of law because he was a representative of the owner of the property taken and because the District opened the door to testimony concerning the Clear Creek Parkway extension.
The District responds that K.S.A. 60-445 gives trial courts broad discretion to exclude even otherwise admissible evidence, and that the district court properly exercised its discretion here. It also argues that it should not be required to infer defendants’ alleged damages from the thousands of documents provided during discovery. Finally, the District contends that it did not “open the door.”
We believe that much of this issue is resolved by the analogous case of Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, Syl. ¶ 6, 915 P.2d 86 (1996). There, Olathe, a manufacturer of tub grinders, sued Browning, a manufacturer of bearings which purportedly caused malfunctions in the tub grinders. Among Olathe’s damage claims at trial was one for lost profits of $4.3 million on its 10-foot tub grinder due to damaged reputation.
After a mistrial was declared, the trial court established a number of deadlines before retrial on June 27. Among these were an April 15 deadline for supplementing responses concerning any changes in subject matter, facts, and opinions to which any expert was expected to testify. In March, Olathe and its experts apparently changed its lost profits theory from a “10-foot tub grinder/damaged reputation” theory to a “12-foot tub grinder/delayed development” theory, and now sought over $8 million in damages.
However, when Olathe served Browning with its expert witness supplementations on the April 15 deadline, no mention was made of the new lost profits theory. Five days later Browning asked for supplemental interrogatory answers regarding expert witnesses. On April 25, Olathe responded, notifying Browning for the first time of its new lost profit theory and that its expert “might offer testimony to support a damages claim” involving both grinders. Olathe, 259 Kan. at 760. When on May 18, Olathe supplied its revised damage calculations to Browning, however, it did not designate any damages as attributable to the new theory.
On May 23 and 24 — within the court’s deadline for deposing the experts on their supplemental responses — Browning deposed Ola-the’s experts for the second time. After learning that Olathe had replaced the original lost profit theory with the new one, it obtained details on the latter theory’s damages. Olathe’s expert admitted that the “theories kind of switched themselves” the previous March.
On June 21, 6 days before trial, Browning filed a motion in limine to exclude the new theory, which the trial judge granted. He later affirmed his exclusion, additionally relying upon a determination that Olathe’s disclosure of its new theory was late and had thereby prejudiced Browning.
“ T do find in the alternative that the claim did come in extremely late, put the defense in an unfair position to have to rebut a substantial new claim at the eleventh hour of this case, and, based on the extensive pretrial discovery that had taken place, I felt it was unfair at the lateness of the hour to subject the defense to this additional claim.’ ” Olathe, 259 Kan. at 762.
This court upheld the district court’s ruling. It first observed that trial courts are “vested with broad discretion in supervising the course and scope of discovery.” Olathe, 259 Kan. at 768. This court further observed, among other things, that Olathe may have been aware of this new lost profits theory for several months before deciding to disclose it to Browning; the new theory altered Olathe’s own experts’ ultimate opinions as to the amount of lost profits which it suffered; and the new theory was not premised on any new information provided by a Browning expert, thus totally surprising Browning and making Browning unprepared to defend against it. Olathe, 259 Kan. at 771.
The Olathe court also cited K.S.A. 60-445 as described in Hurlbut v. Conoco Inc., 253 Kan. 515, 534, 856 P.2d 1313 (1993):
“Under K.S.A.60-[445], the trial judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
See Olathe, 259 Kan. at 771.
This court held that the trial court did not abuse its discretion when it apparently determined that “the probative value of the new lost profit theory did not outweigh the risk that its admission would unfairly and harmfully surprise Browning.” Olathe, 259 Kan. at 771-72.
The Olathe court further agreed that Browning was prejudiced by the “11th hour lost profit theory.” 259 Kan. at 772-73. Because of the late disclosure, Browning did not have the opportunity to discover certain information. Citing Ryan v. Kansas Power & Light Co., 249 Kan. 1, 11-13, 815 P.2d 528 (1991), the court observed that “the purpose of discovery is to eliminate the element of surprise from trials and to simplify issues by fully disclosing the evidence regarding the issues.” Olathe, 259 Kan. at 773. As a result, the Olathe court held that the late disclosure of the new lost profits theory and supporting evidence was “opposed to the purpose of discovery and was thus properly excluded ... as unfairly prejudicial.” 259 Kan. at 773.
Here, Duggan’s original sworn responses to interrogatories on behalf of defendants admittedly did reference unquantified costs of “engineering . . . for redesign work, walking trails and an amenity package, pool tract and cabana, offsite sewer costs, deceleration lanes for Claire [sic] Road, and costs for construction of extension of Clear Creek Parkway and an at-grade intersection at Clear Creek Parkway and K-7 required by the State of Kansas.”
When Duggan testified in his deposition several weeks later, however, as a designated representative of the defendants and as one of their experts, he limited the claims to only four specific categories of damages: (1) lost profits on the condemned lots; (2) devaluation of the remaining lots because of the location of the school; (3) the inability to spread out over the condemned lots certain amenity costs, including “some street and sewer extensions”; and (4) costs incurred from replatting.
When Duggan was asked about any other damages, he replied he was not sure that he could think of any others at that time. Further, he agreed that the maximum compensation sought would be $1,629,500, the total of the values he provided for the four specified categories. Because Duggan is also a lawyer, and actually deposed a District expert witness in this case, it can certainly be said that his waiver- — of his right to review his deposition transcript, make changes in form and substance, and sign under K.S.A. 60-230(e) — was made with an awareness of the possible consequences.
This waiver demonstrates an expression of his intention to absolutely stand by this unmodified testimony-as a representative of the defendants. Because he additionally was the defense representative signing the original interrogatory responses under oath, his deliberate waiver can also be reasonably interpreted as a decision to use his specific, damage-limiting deposition testimony to displace the earlier, more general interrogatory responses. For example, the earlier “offsite sewer costs” would be contained in the later deposition “sewer extensions,” which would in turn bar the later supplemental interrogatory response claims of spread out costs of sewer and water lines of $102,000. The District argues, and the transcript reveals, that the District intended to identify, and pin down, all defendants’ damages categories and corresponding amounts at the deposition of their designated representative and expert witness.
Consistent with the District’s intent, the Friday before the mistrial the district court ruled that items of damage not specified in Duggan’s deposition were not going to be presented at trial. Consequently, it appears that the District not only intended to identify, and pin down, the damages categories and amounts at Duggan’s deposition, but that it also intended to keep these limitations nailed down with the pretrial ruling. The District’s reliance upon the Duggan deposition for these purposes is typical, as we have noted:
“The taking of pretrial depositions is part of the discovery process authorized by K.S.A. 60-226, and among the purposes to be served thereby is ascertaining what an adversary witness may know about matters in litigation and what his probable testimony will be, to the end that the element of surprise will be eliminated so far as possible.” (Emphasis added.) Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, Syl. ¶ 3, 715 P.2d 2 (1986).
Apparently for these same reasons, 3 days later at trial the District objected to the defendants’ references to damage categories and amounts that it asserted were not contained in Duggan’s deposition. The court’s pretrial ruling was essentially restated at the later hearing on the mistrial.
In defendants’ supplemental interrogatory responses submitted 2 months later in April 2006 — more than 1 year after Duggan’s deposition and the deadline for ending discovery, and 1 month before the retrial — they additionally claimed it would cost $1,455,960 to extend Clear Creek Parkway, $278,000 for the collector street, $102,000 for sewer, water, and Clare Road asphalt allocation, $621,000 in additional interest, and $20,000 in taxes. Accordingly, the instant case bears similarity to Olathe Mfg., Inc., 259 Kan. 735. There, the court noted that Olathe may have been aware of its new theory for several months before deciding to disclose it to Browning through discovery responses. Here, these damages — because they were mentioned at the mistrial — -were obviously known to defendants months before being formally presented to the District through discovery responses.
While some of these items were generally mentioned in Duggan’s deposition and in the original responses to interrogatories, most were not. And certainly the defendants did not officially inform the District through discovery channels of the cost of this particular work until the interrogatory supplementation 4 weeks before the scheduled retrial. Particularly when in the defendants’ original interrogatory responses they expressly reserved the right to supplement their responses to Interrogatory Nos. 3 and 7, the District would be justified in believing such supplementation, if any, would be provided earlier. We observe that under K.S.A. 60-226(e)(2):
“A party is under a duty seasonably to amend a prior response to an interrogatory, ... if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” (Emphasis added.)
Supplementing 1 year after discovery ended, and 19 months after the original interrogatory responses, is not “seasonable” supplementation, particularly when these same damages had been asserted at the mistrial 2 months earlier.
The District again argues that allowing these damages would have required trial delay because they would have required significant additional discovery, including its retention of additional expert witnesses on the engineering issues. In this regard, the instant case bears additional similarity to Olathe Mfg. Inc. where, because the new claims were not premised on any new information provided by Browning, Browning was unprepared to adequately address Olathe’s new damage claims.
Although not mentioned in Olathe Mfg. Inc., the following decision from this court provides further guidance on these issues:
“It is an elementary principle of law that the purpose of discovery rules is to . . . educate the parties in advance of trial of the real value of the claims and defenses; to expedite litigation; to safeguard against surprise; to prevent delay; to simplify and narrow the issues; and to expedite and facilitate both preparation and trial. [Citation omitted.]” Vickers v. City of Kansas City, 216 Kan. 84, 90, 531 P.2d 113 (1975).
Given the purposes of the discovery process, e.g., to educate in advance of trial on the real value of claims and to safeguard against surprise, and given the district court’s broad discretion in discovery and in evidentiary admission pursuant to K.S.A. 60-445, we cannot say that the court’s ruling was an abuse of discretion. Even though defendants eventually disclosed this information, the district court may exclude evidence that was not timely, or adequately, disclosed — or both. As the district court pointed out, defendants should not be able to continually increase the amount of damages claimed until trial. Nor, as the District especially points out, should a party causing a mistrial be allowed to take advantage of its conduct by using the extra time it created to add several million dollars to its damages claim.
Defendants’ next argument that the District was somehow at fault because it did not ask specific enough questions at Duggan’s deposition is without merit. The District’s counsel articulated a standard dragnet question routinely asked by capable litigators and was told Duggan could think of no more damages. Duggan then waived reading and signing and, with it, his opportunity to add more damages via his deposition.
Defendants next argue that “precluding Mr. Duggan from testifying, as the representative of the owner of the property taken, is contrary to Kansas law.” Despite this language, we understand from defendants’ explanation that, as a landowner, Duggan should have been allowed to mention all of the excluded damages because they form his opinion of the value of his own land. See City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005) (“there can be no doubt that a landowner’s opinion of his or her property value is relevant in an eminent domain action”).
This argument also fails. The district court properly excluded some damages because of defendants’ failure to timely produce evidence in response to the District’s motion for partial summary judgment. Others were properly excluded because of their untimely or inadequate disclosure. Parties cannot cure their past deficiencies simply because the landowner is qualified to opine on his or her land value. Nor, as defendants appear to argue, was the district court obligated to allow the “new” information into evidence and consider the additions as ammunition for the District to use for challenging the credibility of Duggan on cross-examination. See City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 (2000) (“Considerable discretion is vested in the trial court in admitting or rejecting evidence of value.”).
Finally, defendants argue that they should have been allowed to introduce testimony of the cost to extend Clear Creek Parkway. They point out that the District questioned its own expert witness, Shaner, at trial about whether he had considered access to the subdivision in his report. Defendants argue that the door had been opened and Duggan therefore could testify about the cost of constructing Clear Creek Parkway. They were allowed to cross-examine Shaner to impeach his credibility but were prohibited from introducing specific damages associated with the cost of building such a road.
District courts have discretion to control cross-examination and introduction of evidence of value in eminent domain proceedings. City of Wichita v. Eisenring, 269 Kan. at 773 (“The latitude accorded to the parties in bringing out collateral and cumulative facts to support value estimates is left largely to the discretion of the trial court.”); State v. Corbett, 281 Kan. 294, 307-08, 130 P.3d 1179 (2006) (“The trial court’s decision to limit cross-examination is reviewed using an abuse of discretion standard.”). The District’s questioning Shaner about whether he had considered access in his valuation of the property then allowed defendants to impeach his credibility and report. However, that does not necessarily mean that the door was open for them to talk about anything related to road construction and claim it as part of the compensation owed for the condemned property.
Issue 3: The district court refusal to instmct the jury that fair market value could not be determined by the summation of two different valuation approaches.
The District brings a cross-appeal arguing that the district court erred in refusing to instruct the jury as it requested. The court gave the jury the pattern instruction, PIK Civ. 3d 131.05, which guides the juiy in determining fair market value. The District requested a modified version of the instruction to clarify that defendants were not allowed to “stack” damages. The proposed instruction would have included the language: “As such fair market value is not to be determined by the summing of values indicated by different approaches.”
After oral arguments to this court, the District filed a pleading announcing it would withdraw its cross-appeal in the event this court rejected the defendants’ challenges. That motion is granted; accordingly, there is nothing to address.
We have reviewed other arguments of the defendants and conclude they have no merit.
Affirmed.
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The opinion of the court was delivered by
Rosen J.:
Carl Cofield (defendant-appellant) appeals from his conviction of two counts of first-degree murder and one count of arson. Jurisdiction lies with this court under K.S.A. 22-3601(b)(l).
Around midnight of July 13, 2004, Cofield, Carvelle England, Scott Lindsay, and possibly Derrick Brown left “The Spot,” a drug house on 26th Street in Kansas City, Kansas. England and Lindsay were driving a Chrysler, and Cofield was driving a Nissan. There was conflicting evidence as to whether Brown was a passenger in the Nissan. At a stoplight on Quindaro Street, they caught sight of Antonio Moore and Garmario Ross, who were on foot. Numerous shots were fired from the cars, and Moore and Ross died of multiple bullet wounds.
Responding to an emergency call, police found the unarmed lifeless bodies of Moore and Ross and numerous bullet casings and shotgun shells. A search of The Spot produced a number of weapons, including handguns, rifles, and a semiautomatic rifle. A bullet recovered from Moore’s body was determined to have been fired by a weapon identified as belonging to Cofield. Police subsequently recovered the bumed-out shell of the Chrysler.
On July 23,2004, the State filed an information charging Cofield with two counts of premeditated first-degree murder. On December 1, 2004, the State filed an amended information charging Co-field with two counts of premeditated first-degree murder and one count of arson. On behalf of the State, Lindsay testified that Co-field stopped his car around 12th Street and Quindaro and began shooting. He then saw one of the victims attempt to run away. Evidence was conflicting as to whether Brown was a passenger in Cofield’s car and whether Brown, who died before the trial, fired any shots. The jury found Cofield guilty of both counts of first-degree murder and of arson.
Counsel for Cofield filed a document captioned “Notice of Appeal” on March 8, 2005, but the body of the document requested a new trial based on insufficient evidence to sustain the murder convictions. On March 29, 2005, the trial court sentenced Cofield to two consecutive hard 25 life terms for the murder convictions and a consecutive term of 12 months for the arson. Notices of appeal in criminal cases filed prior to sentencing are not considered timely. See State v. Rios, 19 Kan. App. 2d 350, Syl. ¶ 3, 869 P.2d 755 (1994). On June 21, 2006, counsel filed an untimely amended notice of appeal. The appeal was docketed under case No. 96,321. On June 14, 2006, this court issued an order directing the parties to show cause why the appeal should not be dismissed for lack of appellate jurisdiction. The parties filed responses, and on August 7, 2006, this court dismissed the appeal. Cofield filed a motion to reconsider the dismissal, which this court denied on November 8, 2006. In denying the motion, the court stated that Cofield had leave to request that the district court determine whether any exceptions might apply to preserve his appeal.
On January 3, 2007, new counsel filed a motion in district court asking that the trial court find Cofield’s trial counsel ineffective for failing to file a timely notice of appeal. The district court found that trial counsel was ineffective in failing to perfect the appeal in a timely fashion and that fundamental fairness required that Co-field be allowed to file his appeal out of time. Cofield then filed a renewed notice of appeal on the same date as the district court determination of ineffective assistance of trial counsel. Additional facts will be provided as necessary to the analysis of the issues presented. We now address the merits of Cofield’s claims.
For his first issue, Cofield maintains the district court erroneously denied his motion to suppress his recorded statements made to police investigating the homicides. When this court reviews a decision regarding suppression of statements to the police, it applies a substantial competent evidence standard to the factual underpinnings of the trial court’s decision and applies a de novo standard to the ultimate legal conclusion. We do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008).
The voluntariness of a confession is determined under the totality of the circumstances. The State has the burden of proving that a confession is admissible, and it must prove admissibility by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the defendant’s free and independent will. Johnson, 286 Kan. at 836.
When determining whether a statement was voluntary, the court is to consider numerous factors which have been consolidated into the following nonexclusive list: the defendant’s mental condition; the manner and duration of the interrogation; the ability of the defendant to communicate with the outside world; the defendant’s age, intellect, and background; the fairness of the officers in conducting the interrogation; and the defendant’s proficiency with the English language. Johnson, 286 Kan. at 836.
Cofield gave a lengthy recorded statement to the police, in which he admitted to being a primary participant in both the shootings and the burning of the car. Starting around 9 a.m. on the morning of July 22, 2004, Kansas City, Kansas, police began to interrogate Cofield. At around 8 p.m., Captain John Cosgrove and Detectives Terry Mast and Mike Vega video-recorded Cofield’s statement.
At a subsequent hearing on Cofield’s motion to suppress the statement, the trial court heard the testimony of Captain Cosgrove, Detectives Vega and Mast, and Cofield. The trial court denied the motion to suppress, finding it “clear” that the statement was voluntarily given. The statement was transcribed and is summarized as follows:
In the afternoon of July 13, 2004, England and Cofield gave someone “dope” in exchange for the use of a Chrysler. They drove around for awhile and then returned to the 26th Street house. Cofield left the 26th Street house in a borrowed Nissan, and England and Lindsay left in the borrowed Chiysler. Cofield carried a drum-loaded semi-automatic rifle, England had a .38 caliber pistol, and Lindsay carried a shotgun to the cars for protection.
They drove around for awhile and then drove down Quindaro toward 10th Street. There they saw two men, who took off running until they reached some bushes. Because they were running, Co-field assumed that they were “guilty” of something and were adversaries. Cofield stopped in front of the bushes, and England and Lindsay pulled in behind him. Lindsay opened fire by standing up in the passenger’s seat and shooting out the drop-top of the car. England fired all the bullets from his .38 pistol. England then took the shotgun and continued shooting. Cofield drove forward a short distance, got out of his car, and began shooting at the two youths who had been running. After one of the youths was hit by the shotgun, he flipped onto the ground, then got back to his feet and started running away, and then he fell down again. Cofield then opened fire on him with the semiautomatic. Cofield approached the bushes and shot the other youth who was hiding there.
Cofield then noticed a woman who was sitting nearby and he decided to leave the scene immediately. The three men met back at the 26th Street house. Lindsay reported that he had “flipped” the young man who ran from the bushes.
Cofield left the house with a woman named Veretta Johnson and later went to a convenience store to obtain a calling card to facilitate a drug transaction. The store clerk told Cofield that there were a lot of emergency vehicles on 11th Street, and Cofield decided to drive to the scene. Cofield learned there that one of the shooting victims was Little Tony, with whom Cofield had recendy been on good terms. Had he known the victim’s identity, Cofield would not have fired on him because “he ain’t did nothing to me, he too young for me.”
The next morning, Cofield returned to the 26th Street house. Cofield suggested returning the Chrysler to its owner, but England refused and instead called the owner and attempted to convince him that someone had stolen the car and beaten up England. The three men then decided to bum the car. Cofield picked up a can with gasoline and drove the Chrysler to another location, where he met England, who was driving the Nissan. England poured gasoline on the car and attempted to ignite it with a lit piece of paper. When it did not light, Cofield threw the burning paper inside the car. The car blew up, burning Cofield’s arm and hair. Cofield obtained medical assistance at the University of Kansas Medical Center.
The statement clearly implicated Cofield as an actual participant in the murders and contradicted his trial testimony that he was only the driver for Brown, who did the shooting. The statement was certainly incriminating, in that it was not only a confession but also explained contradictions among witnesses at trial. He contends on appeal that he did not give the statement voluntarily because he was deprived of sleep and was subjected to an overly strenuous interrogation, because police threatened him, and because he was under tibe influence of drugs at the time of the confession.
At trial, however, Cofield testified that he gave the details in his statement because Brown had offered him $1,000 to assume the blame for the shooting. Although he sometimes contended that the police had threatened him, he concluded by testifying that the statement was the product of a $1,000 bribe. He was unable, however, to explain why he waited until the end of nearly a full day of periodic custodial interviews to provide the testimony that would earn him the bribe money.
Keeping in mind that this court will not pass on the credibility of witnesses or resolve conflicts in the evidence when reviewing a trial court’s decision to admit a statement, there is no showing that the trial court committed reversible error. Cofield showed no sign of coercion or intoxication when making the statement; in fact, the statement was highly detailed and explicit in sorting out details in response to open-ended questions. There was testimony that he did not appear intoxicated. The interviewing officers testified that they did not threaten Cofield or use physical force against him. They gave him food, cigarettes, and toilet breaks.
No reason appears in the record to reverse the trial court’s determination that the statement was voluntary.
For his next three issues, Cofield raises claims regarding errors contained in the instructions to the jury. First, Cofield maintains the district court erroneously instructed the jury regarding responsibility for crimes committed by other people. Cofield did not object to jury instruction 18, relating to aiding and abetting in the commission of a crime by another. Where neither party objected to an instruction, an appellate court reviewing a district court’s instruction applies a clearly erroneous standard. State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Under this standard, the appellate court will reverse only if it is firmly convinced that, without the alleged error, there was a real possibility the jury would have returned a different verdict. 282 Kan. at 581.
Jury instruction 18 reads:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.
‘In addition, a person is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and abetting in the commission of a crime the defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.”
The instruction combines PIK Crim. 3d 54.06 (Responsibility for Crimes of Another — Crime Not Intended) and PIK Crim. 3d 54.05 (Responsibility for Crimes of Another). In State v. Engelhardt, 280 Kan. 113, 133, 119 P.3d 1148 (2005), this court considered this very issue and found the instruction to constitute error. The error lay in instructing the jury on a foreseeability standard from the unintended crime instruction when the crime of conviction — premeditated murder — required intent to commit the crime. The court concluded, however, that the error was harmless because “[t]he overwhelming evidence in this case demonstrated that [the defendant] was guilty of either intentionally murdering the victim or aiding and abetting the intentional murder.” 280 Kan. at 133-34. Although the Engelhardt decision was issued shortly after the completion of Cofield’s trial, its resolution of the issue before us is determinative.
In the present case, the State’s theory was based exclusively on premeditation. Here, as in Engelhardt, the evidence of guilt of premeditated murder was overwhelming. The large number of shots fired, the fact that Cofield and his cohorts made a point of taking loaded guns with them on the car ride, the vulnerable sit uation of the victims, and Cofield’s confession that he fired at the victims because he thought they were enemies who were “guilty of something” all provided overwhelming evidence of premeditated murder. It would require a great leap of logic on the part of the jury to have reached a guilty verdict predicated on Cofield intending to aid and abet some crime less than that charged.
Applying the standard of review, it does not appear that there was a real possibility the jury would have returned some other verdict if instructed correctly. As in Englehardt, the combination of the two instructions was error; however, the error was harmless.
Next, Cofield claims the district court erroneously instructed the jury regarding the importance of reaching a verdict. Cofield contends on appeal that jury instructions 20 and 21 impermissibly pressured jurors to reach a unanimous verdict. He did not object to the instructions at trial, and the standard of review is the same as with the previous issue — a clearly erroneous standard.
Jury instruction 20 reads:
“This is an important case. Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides.
“There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.
“Also, there is no reason to believe that the case would ever be submitted to 12 people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessaiy.”
Jury instruction 21 reads:
“In order to return a verdict, all jurors must agree upon the verdict. Your deliberations should be conducted in a businesslike manner. You should first se lect a presiding juror who should assure that your discussion moves sensibly and orderly with each juror given the opportunity to discuss the issues fully and fairly.
“The attitude and conduct of jurors at the outset of the deliberations are matters of considerable importance. It is rarely helpful for a juror, upon entering the jury room, to make an emphatic expression of their opinion on the case or to announce a determination to stand for a certain verdict. The result of conduct of this nature might be that a juror because of personal pride would hesitate to recede from an announced position when shown that it is erroneous.
“It is natural that differences of opinion will arise. When they do, each juror should not only express their opinions but the reasons upon which they base them.
“Although a juror should not hesitate to change their vote when their reason and judgment are changed, each juror should vote according to their honest judgment, applying the law from the instructions to the facts as proved. If every juror is fair and reasonable, a jury can almost always agree.
“It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you do so without violence to your individual judgment.
“Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.
“Verdict forms are attached to the last page of these instructions.”
Cofield objects specifically to the language in instruction 20 reading: “Like all cases, it must be decided sometime.” As he correctly points out, a case does not necessarily have to be decided at some time by a jury.
This court has reviewed this type of instruction when given before deliberations commence and has concluded that the error, if any, is harmless. Most recently, in State v. Carter, 284 Kan. 312, 160 P.3d 457 (2007), the court addressed an argument substantially the same as presented in the present case. The court held:
‘We have acknowledged that the outdated Allen-type instruction ‘has been the source of some controversy.’ [Citation omitted.] We have disapproved of its use when given after deliberations have begun. [Citations omitted.] However, even in those situations, the giving of such an instruction has rarely resulted in a reversal. [Citation omitted.]
‘When, as here, the instruction accompanies all of the rest of the instructions given before deliberations begin, this court has concluded there is no error. [Citations omitted.] We will not depart from those holdings in this case. Even if it is not literally inevitable that ‘all cases . . . must be decided sometime,’ inclusion of the quoted language in this instruction, given before deliberations, does not render it clearly erroneous. Anthony, 282 Kan. at 216-17. There is no real possi bility that the juiy would have returned a different verdict had this instruction not been given.” 284 Kan. at 330-31.
Although the statement in instruction 20 that the case would have to be decided by a juiy at some time was erroneous, our case law has established that the instruction does not constitute clear error.
Cofield also objects to instruction 21 as being impermissibly coercive. The instruction, patterned on PIK Civ. 3d 101.09, has previously been held not to be unduly coercive. State v. Hall, 220 Kan. 712, 718, 556 P.2d 413 (1976); State v. Cummings, 242 Kan. 84, 90-91, 744 P.2d 858 (1987). Cofield contends that Hall and Cummings were decided incorrectly and asks this court to reconsider those decisions.
In Hall, the court found that the instruction was not coercive but “a fair statement concerning . . . die proper attitude which the jurors should maintain.” 220 Kan. at 718. In Cummings, the court found that “[i]n encouraging a unanimous verdict, the instruction does not favor the State over the defendant; the jurors might just as easily reach a unanimous verdict for the defendant.” 242 Kan. at 90-91.
In State v. Whitaker, 255 Kan. 118, 872 P.2d 278 (1994), the defendant challenged a similar modified Allen instruction. The court found the instruction was not clearly erroneous because it did not require jurors to change their votes or to compromise their individual judgments for the sake of reaching an agreement. 255 Kan. at 128.
Although Cofield stresses that a juror might feel coerced into going along with the majority in order to reach a unanimous verdict, the language of the instruction as a whole mitigates against such coercion, expressly directing jurors to vote according to their honest judgment. This instruction was presented prior to deliberation, and there was no indication that the juiy was close to being deadlocked. As this court noted in State v. Struzik, 269 Kan. 95, 109, 5 P.3d 502 (2000), “[o]ne of the primaiy concerns with an Allen-type instruction has always been its timing. When the instruction is given before juiy deliberations, some of the questions as to its coercive effect are removed.”
The previous rulings of this court have determined that neither instruction, when given prior to dehberations, constitutes error. The reasoning has been that unanimity does not favor either party and that, in the absence of a deadlock or a potential deadlock, the instructions lack an “explosive” effect on jurors to move them from a set position. See Whitaker, 255 Kan. at 126.
Cofield maintains, however, that, even if the two instructions separately did not constitute clear error, their cumulative effect was coercive. He contends there was a real possibility that the jury might have reached a different verdict if it had not been urged to try to reach unanimity. He in essence argues for a cumulative non-error approach: although this court has found both instructions not to constitute error, together they constitute not only error but clear error.
This argument is not persuasive. The instructions misinformed the jury only as to the necessity of an eventual jury verdict. The remainder of the instructions was accurate, if perhaps unnecessary. Although some discrepancies in the testimony existed, the evidence, in particular Cofield’s statement to police, provided overwhelming evidence of guilt. The instructions, even taken together, do not constitute clear error.
For his third claim of instructional error, Cofield maintains that the district court erroneously instructed the jury regarding burden of proof, presumption of innocence, and reasonable doubt. Cofield contends that jury instruction 8 improperly modified the presumption of innocence. He did not object to the instruction, and as noted in the discussion of the previous two issues, the issue is subject to a standard of clear error.
Instruction 8 reads:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to tire truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
Cofield contends that the use of the word “until” in the second sentence suggested to the juiy that it ultimately was supposed to be convinced of his guilt. This court has recently found that the wording of the instruction, while not ideal, is not erroneous. State v. Gallegos, 286 Kan. 869, 877, 190 P.3d 226 (2008). Citing State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 (2004), the court held:
“[T]he instructions . . . when taken as a whole, accurately state the law. The burden-of-proof instruction, when read in its totality, correctly describes the standard that the jury was required to apply in finding [the defendant] guilty or not guilty of the crimes charged. The jury could not reasonably have been misled by the use of the term until’ in light of the accompanying instructions.” Gallegos, 286 Kan. at 877.
Cofield does not present a compelling reason to depart from the recent decisions of this court. As with the other claimed instructional errors, the language contained in instruction 8 does not constitute clear error.
As his final issue, Cofield claims the cumulative effect of multiple trial errors caused substantial prejudice and denied him a fair trial. Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative error rule if the evidence is overwhelming against a defendant. State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007).
Cumulative' error will not be found when the record fails to support the errors raised on appeal by the defendant: State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007); State v. Jones, 283 Kan. 186, 218, 151 P.3d 22 (2007). One error is insufficient to support reversal under the cumulative effect rule. Nguyen, 285 Kan. at 437.
There were no errors of any substance that occurred in the course of the trial, and therefore the errors did not accumulate to create substantial prejudice denying Cofield a fair trial.
Affirmed.
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In a letter dated May 8, 2009, addressed to the Clerk of the Appellate Courts, respondent Andrew S. Hartnett, II, of Salina, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2008 Kan. Ct. R. Annot. 343).
At the time the respondent surrendered his license, review was pending before the Kansas Supreme Court on a final hearing report in accordance with Supreme Court Rule 212 (2008 Kan. Ct. R. Annot. 327). The hearing panel found that the respondent violated Rules 1.1 (2008 Kan. Ct. R. Annot. 400), 1.3 (2008 Kan. Ct. R. Annot. 415), 1.4(a) (2008 Kan. Ct. R. Annot. 432), 3.2 (2008 Kan. Ct. R. Annot. 525), 3.3(a)(1) (2008 Kan. Ct. R. Annot. 531), 8.1(b) (2008 Kan. Ct. R. Annot. 579), and 8.4(b) (2008 Kan. Ct. R. Annot. 586) of the Kansas Rules of Professional Conduct and Supreme Court Rules 207(b) (2008 Kan. Ct. R. Annot. 295) and 211(b) (2008 Kan. Ct. R. Annot. 313).
This court, having examined the files of the office of the Disciplinaiy Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Andrew S. Hartnett, II, be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Andrew S. Hartnett, II, from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
Dated this 12th day of May, 2009.
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In a letter dated May 14, 2009, addressed to the Clerk of the Appellate Courts, respondent Kent O. Docking, of Kansas City, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2008 Kan. Ct.. R. Annot. 343).
At the time the respondent surrendered his license, a panel hearing was pending on a complaint in accordance with Supreme Court Rule 211 (2008 Kan. Ct. R. Annot. 313). The formal complaint concerns allegations of misconduct contained in five complaints that Mr. Docking violated Rules 1.3 (lack of diligence) (2008 Kan. Ct. R. Annot 415), 1.4(a) (lack of reasonable communication) (2008 Kan. Ct. R. Annot. 432), 1.16 (abandonment of clients and their legal interests) (2008 Kan. Ct. R. Annot. 508), 5.5 (unlawful practice of law while law license suspended) (2008 Kan. Ct. R. Annot. 565), 8.1(b) (failure to cooperate with disciplinary process) (2008 Kan. Ct. R. Annot. 579), and 8.4(b) (commission of criminal acts by wrongfully converting to personal use advanced legal fees from clients) (2008 Kan. Ct. R. Annot. 586) of the Kansas Rules of Professional Conduct and Supreme Court Rules 207(b) (2008 Kan. Ct. R. Annot. 295) and 211(b) (2008 Kan. Ct. R. Annot. 313).
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Kent O. Docking be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Kent O. Docking from the roll of attorneys licensed to practice law in Kansas.
Dated this 20th day of May, 2009.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
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The opinion of the court was delivered by
Johnson, J.:
Pursuant to a plea agreement, Sarah Fischer pled guilty to two felony charges in February 2008. The plea agreement indicated that Fischer’s anticipated criminal history score would be “A,” which was confirmed at sentencing without objection. The calculation of Fischer’s criminal history score under the Kansas Sentencing Guidelines Act (KSGA) included juvenile adjudications.
After being sentenced to a controlling prison term of 40 months, Fischer filed a timely notice of appeal, challenging her criminal history score on two bases: (1) her juvenile adjudications could not be used in the calculation because she did not have a right to a jury trial in those proceedings; and (2) her prior convictions could not enhance her sentence because they were not proved to a jury beyond a reasonable doubt. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c). We affirm.
JURISDICTION
Before proceeding to the defendant’s issues, we first address the State’s principal argument that we lack jurisdiction to review Fischer’s sentence. The State’s brief appears to blend an argument that Fischer failed to preserve the issue for appeal by objecting in the trial court with an argument that we cannot review a presumptive sentence on direct appeal. See K.S.A. 21-4721(c)(l) (an appellate court shall not review “[ajny sentence that is within the presumptive sentence for the crime”). Regardless of the State’s precise complaint, we have authority to consider the issue.
In State v. Pennington, 276 Kan. 841, 80 P.3d 44 (2003), the defendant argued that his criminal history should have been pled in the complaint and proved to a jury. The State countered that the defendant had failed to preserve the issue by not objecting to his criminal history score in the district court. The Pennington court declared that
“an appellate court may review a claim that the sentencing court erroneously included recognition of a prior conviction notwithstanding the defendant’s failure to object to his or her criminal history score. K.S.A. 21-4721(e)(2); State v. Pope, 23 Kan. App. 2d 69, 79, 927 P.2d 503 (1996).” 276 Kan. at 851.
The statute to which Pennington cited, K.S.A. 21-4721(e)(2), provides:
“(e) In any appeal, the appellate court may review a claim that:
(2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes.”
Here, the issue raised is a constitutional challenge to the recognition of prior convictions and juvenile adjudications for criminal history scoring purposes. K.S.A. 21-4721(e)(2) grants us authority to review that question “[i]n any appeal.” Cf. State v. Barnes, 278 Kan. 121, 124, 92 P.3d 578 (2004) (citing K.S.A. 21-4721(e)(3) as authority to review crime severity level).
The State’s focus on the appellate review preclusion provision of K.S.A. 21-4721(c)(l) to the exclusion of the appellate review authority granted in K.S.A. 21-4721(e)(2) is misplaced. “Presumptive sentence” is defined as “the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender’s criminal history.” K.S.A. 21-4703(q). If the sentencing court errs in determining either factor (criminal history score or crime severity level), then that error results in an erroneous classification of the offender’s applicable grid box. Accordingly, a term of imprisonment drawn from an erroneously classified grid box cannot be deemed a “presumptive sentence” within the meaning of K.S.A. 21-4721(c)(1). We will proceed to tire merits.
JUVENILE ADJUDICATIONS
Fischer contends that without the inclusion of her juvenile adjudications, her criminal history score would have been “H” and her presumptive sentence would have been 19 to 21 months’ imprisonment. Therefore, she asserts that the use of her prior juvenile adjudications increased her punishment.
Pointing to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Fischer argues that because the adjudications were not proved to a jury beyond a reasonable doubt, their use to enhance her sentence violated her right to due process and right to a jury trial under the Sixth and Fourteenth Amend ments to the United States Constitution. She also declares that the calculation violated §§ 1, 5, and 10 of the Kansas Constitution Bill of Rights, albeit she provides no separate argument on state grounds. Fischer’s constitutional challenge presents a question of law subject to unlimited review. See State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007).
Fischer acknowledges that Apprendi excepted prior convictions from its requirement that sentence-enhancing factual findings must be made by a jury. 530 U.S. at 496. However, Fischer contends that her juvenile adjudications do not qualify as “prior convictions” for purposes of the exception because the juvenile code did not guarantee her a right to trial by jury. See K.S.A. 38-1656 (repealed January 1, 2007) (judge may order jury trial in certain cases); Findlay v. State, 235 Kan. 462, 466, 681 P.2d 20 (1984) (jury trial in juvenile proceeding solely at the option of the court; respondent had no right to jury trial or right to appellate review).
Fischer concedes that we have previously considered and rejected her Apprendi-based argument. In State v. Hitt, 273 Kan. 224, 229, 42 P.3d 732, cert. denied 537 U.S. 1104 (2003), this court considered the question “whether the absence of the jury trial safeguard in juvenile adjudications is enough to remove it from the narrow exception for prior convictions built into the Apprendi rale.” Hitt answered that question in the negative, finding that “[jjuvenile adjudications are included within the historical cloak of recidivism and enjoy ample procedural safeguards” to permit them to be encompassed within the Apprendi exception for prior convictions. 273 Kan. at 236. Accordingly, Hitt ruled that “[jjuvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the KSGA.” 273 Kan. at 236.
Fischer argues that we must revisit the Hitt holding because of our subsequent decision in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008). In re L.M. reviewed the changes in the statutory provisions governing juvenile adjudications since Findlay, which held that juveniles did not have a constitutional right to a jury trial under either the federal or state constitutions. The In re L.M. court concluded:
“These changes to the juvenile justice system have eroded the benevolent parens patriae character that distinguished it from the adult criminal system. The United States Supreme Court relied on the juvenile justice system’s characteristics of fairness, concern, sympathy, and paternal attention in concluding that juveniles were not entitled to a jury trial. McKeiver, 403 U.S. at 550. Likewise, this court relied on that parens patriae character in reaching its decision in Findlay. However, because the juvenile justice system is now patterned after the adult criminal system, we conclude that the changes have superseded the McKeiver and Findlay Courts’ reasoning and those decisions are no longer binding precedent for us to follow. Based on our conclusion that the Kansas juvenile justice system has become more akin to an adult criminal prosecution, we hold that juveniles have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments. As a result, K.S.A. 2006 Supp. 38-2344(d), which provides that a juvenile who pleads not guilty is entitled to a ‘trial to the court,’ and K.S.A. 2006 Supp. 38-2357, which gives the district court discretion in determining whether a juvenile should be granted a juiy trial, are unconstitutional.” 286 Kan. at 469-70.
The current juvenile code is referred to as the Revised Kansas Juvenile Justice Code (KJJC), K.S.A. 2008 Supp. 38-2301 et seq. Fischer points out that most of the statutory changes on which In re L.M. relied to find that juvenile proceedings are now akin to adult prosecutions occurred in 1996 and 1997. Therefore, she theorizes that if those statutory changes effected an. adult-like system under which a jury trial is now constitutionally required, then all juvenile proceedings since the 1996-97 enactment of the statutory amendments have lacked adequate procedural protections. The apparent suggestion being that In re L.M. destroyed Hitt’s adequate safeguards rationale. Accordingly, Fischer declares all post-1996-97 adjudications to be constitutionally infirm.
Fischer points to the analogy drawn in State v. LaMunyon, 259 Kan. 54, 62, 911 P.2d 151 (1996), which found that juvenile adjudications could be used for criminal history purposes in the same way that uncounseled adult misdemeanor convictions that did not result in jail time could be counted. See State v. Delacruz, 258 Kan. 129, 135-36, 899 P.2d 1042 (1995) (finding uncounseled adult misdemeanor convictions resulting in no jail time can be included in KSGA calculation of criminal history score). She says that after In re L.M., the more appropriate analogy is to equate post-1996-97 juvenile adjudications with uncounseled adult misdemeanor convictions in which jail time was ordered, which Delacruz said could not be counted for criminal history scoring. 258 Kan. at 136.
The fallacy with that analogy is that when Delacruz was decided, an uncounseled adult misdemeanor conviction resulting in jail time was already deemed to be an unconstitutional conviction pursuant to the holdings in Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979), and Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). To the contrary, In re L.M. did not declare all juvenile adjudications after the 1996-97 statutory amendments to be unconstitutional adjudications. The opinion took pains to clarify:
“The right to a juiy trial in juvenile offender proceedings is a new rule of procedure; it does not operate retroactively. It does not create a new class of convicted persons, but merely raises ‘ “the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” ’ Drach v. Bruce, 281 Kan. 1058, 1073, 136 P.3d 390 (2006), cert. denied 127 S. Ct. 1829 (2007) (quoting Schriro v. Summerlin, 542 U.S. 348, 352, 159 L. Ed. 2d 442, 124 S. Ct. 2519 [2004]). This right will apply'only to cases pending on direct review or not yet final on the date of filing of this opinion.” 286 Kan. at 473-74.
The obvious intent of In re L.M. was to avoid invalidating prior, final juvenile adjudications. Cf. Hitt, 273 Kan. at 235 (discussing practical implications of excluding juvenile adjudications from KSGA criminal history scoring and declining to create such problems in the absence of a clear United States Supreme Court mandate). Thus, when Fischer was adjudicated, she received all of the process she was due and was afforded all of the constitutional protections then required in such proceedings. Accordingly, we find that the holding in Hitt remains valid for all juvenile adjudications that were final on June 20, 2008, the date In re L.M. was filed. Because Fischer s juvenile adjudications were final, they were “prior convictions” under the Apprendi exception, and the district court properly included them in her criminal history scoring.
PRIOR CONVICTIONS
Alternatively, Fischer argues that the use of any of her prior convictions or adjudications to enhance her sentence violated her rights under the Sixth and Fourteenth Amendments. Essentially, she asks us to accept her prediction that the United States Supreme Court will modify its Apprendi holding to eliminate the express exception for prior convictions, i.e., that the Court will someday require all sentence-enhancing facts, including prior convictions, to be pled and proved to a jury beyond a reasonable doubt.
We have previously, and repeatedly, declined the invitation to prognosticate. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002); see also State v. Gonzalez, 282 Kan. 73, 118, 145 P.3d 18 (2006); State v. Manbeck, 277 Kan. 224, 229, 83 P.3d 190 (2004) (reaffirming Ivory). We will continue to wait for the Supreme Court to tell us that it has overruled Apprendi’s explicit prior conviction exception.
Affirmed.
David J. King, District Judge, assigned.
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The opinion of the court was delivered by
LUCKERT, J.:
Christopher M. Trotter appeals the district court’s summary denial of his K.S.A. 60-1507 motion, raising arguments that we have grouped into two issues for purposes of our analysis.
First, may this court consider whether Trotter’s convictions for capital murder and first-degree premeditated murder are multiplicitous when the issue is raised for the first time on appeal from a summary denial of a K.S.A. 60-1507 motion and, if so, grant relief? We answer this question, “yes.” Under the extraordinary circumstances of this case, the defendant successfully establishes a claim of ineffective assistance of counsel for failing to raise a meritorious multiplicity issue on direct appeal, and resolution of the issue can be considered as a matter of law based upon the appellate record.
Second, did the district court err in summarily dismissing Trotter’s pro se K.S.A. 60-1507 motion that claimed (a) trial counsel was ineffective for failing to request an eyewitness instruction and (b) affidavits of codefendants, in which they stated they had committed perjury, constituted newly discovered evidence warranting a new trial? We answer this question, “no.” The motion, files, and records of the case conclusively show that Trotter is not entitled to relief.
Factual Background
Although the facts are fully discussed in State v. Trotter, 280 Kan. 800, 127 P.3d 972 (2006) (Trotter I), a brief discussion is necessary to explain the issues in this appeal, particularly regarding those facts that relate to the issues of the eyewitness instruction and recanted testimony of two of Trotter’s codefendants, Kevin Eddington and Virdal Nash.
At trial, the State presented evidence that Trotter shot and killed Traylennea Huff and James Darnell Wallace during the course of an aggravated robbery, which Trotter and others had planned in the hopes of stealing cash they believed to be in Huff s and Wal lace’s home. Trotter’s codefendants testified that Trotter, who knew the victims, approached them about the possible robbery, and the group discussed a plan to enter the home, restrain the victims, and steal the money.
In addition, the codefendants testified regarding their intrusion into the home and the events that led to Trotter’s shooting of Huff and Wallace. Codefendants Michael Navarre and Eddington, both of whom had accepted the State’s offer to dismiss the first-degree murder charges against them if they testified against Trotter, were at the scene of the crime throughout the incident and both provided similar, although not identical, accounts. According to their testimony, after cutting telephone wires and attempting entry into the victim’s home, the group retreated to some nearby woods where they waited until Wallace came out of his home. At that point Trotter rushed Wallace. Wallace struggled with Trotter and removed a shirt Trotter had wrapped around his face as a mask.
In the meantime, Navarre and Eddington went into the home and up the stairs to a hallway where they found Huff as she was coming out of her bedroom. They put a plastic tie on Huff s wrists and asked her where the money was hidden. While they were restraining Huff, a young boy opened his bedroom door. Eddington testified he pushed the boy back into his bedroom and then took Huff into her bedroom where she said the money could be found. As Eddington and Navarre took money from under the bed, they heard a gunshot. Both Eddington and Navarre testified that they left the home immediately, leaving Huff in her room. In addition, both testified that as they came down the stairs they met Trotter as he was coming into the home and up the stairs. When Eddington and Navarre were outside running away from the home, they heard another gunshot.
Codefendant Nash, who also received a favorable plea arrangement in exchange for his testimony, testified he went with the others to the scene, left while the group was waiting in the woods before the home invasion, and returned just as the others were fleeing the home. According to Nash, Eddington told him that Trotter had shot Wallace and Huff. Nash also testified that he heard Trotter say: “All he had to do was just lay down. I wouldn’t have had to kill him.”
In addition, Huff and Wallace’s 8-year-old son, Damante, testified to what he saw and heard when noises woke him during the encounter. Among other things, Damante testified he got up from his bed, looked out of his bedroom door, and was pushed back into his room by a man who was in the hallway with his mother. Dam-ante testified he returned to his bed but could still see out of his room. He was aware of the movement of two people at the top of the stairs, and he knew one of the people was his father because he heard his father say, “Chris.” Soon thereafter, Damante heard gunshots.
Damante’s ability to identify Trotter as the “Chris” who was at the scene of the crime was a point of contention during Trotter’s trial. The jury heard of several occasions when Damante was asked to identify Trotter. The first occurred a day or two after the murder when police showed Damante a picture of Trotter. Damante identified the person as “Rock” and told police he had not seen “Rock” during the incident. Then, several months later, Damante was again shown Trotter’s picture and on this occasion he stated, “That kind of looks like the one that was in our house.” Finally, during his trial testimony, Damante was asked if he knew anyone in the courtroom; he responded that Trotter was the “Chris” he knew. On cross-examination, Damante testified that the “Chris” he was identifying was the person who had pushed him back into his room.
In the defense’s closing argument, counsel argued that Dam-ante’s identification of Trotter as the person in the home was a product of suggestion. Defense counsel bolstered that argument by pointing to Damante’s inability to identify Trotter’s photograph a day or two after the shooting and to Damante’s growing confidence in his identification as the prosecution progressed. In addition, defense counsel focused on Damante’s identification of Trotter as the person who shoved him. Counsel emphasized that this testimony was inconsistent with Eddington’s testimony that Eddington was the one who had pushed the boy, it created a doubt as to whether Trotter was the shooter, and it allowed an inference that Eddington was the one who had actually fired the shots that killed Wallace and Huff.
The State, on the other hand, noted that Damante had testified that the person who pushed him was wearing latex gloves. All of the codefendants testified that Trotter wore baseball batting gloves while they wore latex gloves. The State also emphasized that in Damante’s initial contact with police, which occurred shortly after the incident, Damante told them his father’s friend “Chris” was involved. It was this immediate statement that caused police to ask Wallace’s family if Wallace knew a “Chris,” and their responses led police to Trotter. In addition, the State emphasized that the other evidence — which was primarily the testimony of the codefendants — pointed to Trotter as the shooter.
No physical evidence linked Trotter directly to the crime, although physical evidence did corroborate that the shots that killed both victims were fired from one gun, the gun which the codefendants testified was in Trotter’s hands the entire time.
After hearing this testimony and the other evidence more fully described in Trotter I, 280 Kan. 800, the jury found Trotter guilty of the capital murder of Huff, the first-degree premeditated murder of Wallace, aggravated robbery, and conspiracy to commit aggravated robbery. The jury also considered whether to impose the death penalty and decided not to do so. Subsequently, the district court sentenced Trotter to concurrent sentences of life for each murder conviction without eligibility for parole for 50 years, 79 months for the aggravated robbery conviction, and 32 months for the conspiracy conviction.
On direct appeal, Trotter raised issues involving (1) the district court’s failure to give an unrequested instruction on eyewitness identification, (2) the court’s admission of evidence that Huff was pregnant at the time of the murders, (3) the State’s use of peremptory challenges to eliminate 9 of the 10 African-American jurors from the venire panel, and (4) the sufficiency of the evidence to support his convictions for capital murder and first-degree premeditated murder. Trotter I, 280 Kan. 800. This court rejected Trotter’s contentions and upheld his convictions.
Less than 1 year later, Trotter filed a pro se K.S.A. 60-1507 motion claiming (a) ineffective assistance of trial counsel for fading to request an eyewitness jury instruction and (b) newly discovered evidence involving recanted testimony of witnesses. Attached to the motion were affidavits from codefendants Nash and Eddington, each attesting that their testimony against Trotter was untrue.
Nash began his affidavit by stating: “With this letter I do solemnly affirm that the statement I made in my preliminary hearing against myself and co-defendants Christopher Trotter, Kevin Eddington, Micheál [sic] Navarre and James Trotter was made up and un-true.” (Emphasis added.) He indicated the police showed him pictures of the crime scene, “facts and points and a run down of the statements made by Kevin and Michael.” Nash attested he “took the facts [the police] showed me and the run down from the previous statements made and came up with a believable statement.” He also stated repeatedly that he was not there, concluding his affidavit by stating he had
“no first hand account of what took place that day of this crime or any role or roles taken place by Chris Trotter, Mr. Eddington or Mr. Navarre.
“I simply was not there! And I am only a pawn used by the D.A. because I’m a relative [of Trotter’s] and would be a convincing argument for her case.”
Eddington’s affidavit was shorter, stating:
“![,] Kevin Eddington[,] being of sound mind, swear that the statement I made against Christopher Trotter at his trial was untrue! It was made clear to me by the police and D.A. that the only person they wanted was Christopher Trotter! As I have always stated from the beganing [sic] before I made any statement the police made it clear that Chris Trotter had to be the the [sic] master mind behind this whole crime! So I made my statement and testmonies [sic] match up to what they wanted to hear!”
After reviewing these filings, the district court summarily denied Trotter’s K.S.A. 60-1507 motion without appointing counsel or conducting an evidentiary hearing. In a memorandum decision, the district court first addressed Trotter’s claim that his counsel was ineffective because an eyewitness instruction was not requested. The district court pointed out that this court in Trotter I had found no error in the trial court’s failure to give an eyewitness instruction. Consequently, the district court found that Trotter’s trial counsel did not provide ineffective assistance on the matter. With respect to the claim of newly discovered evidence and the affidavits of Nash and Eddington, the court stated:
“Nash’s affidavit reiterates his testimony at trial that he was not present when these homicides took place and has no first hand knowledge of them. Eddington’s affidavit states that ‘the statement I made’ against petitioner at trial was untrue. Eddington testified at length during petitioner’s trial, and he is not specific regarding the ‘statement’ to which he refers. Neither affidavit provides a basis upon which relief could be granted.”
Now, Trotter appeals from the district court’s summary denial of his K.S.A. 60-1507 motion. This court has jurisdiction over the appeal under K.S.A. 22-3601(b)(1) (life sentence; off-grid crime).
1. Multiplicity
Trotter contends his conviction for one count of capital murder and one count of first-degree premeditated murder — convictions which arose out of the double homicide — are improperly multiplicitous and, therefore, his first-degree premeditated murder conviction must be reversed. This issue is being raised for the first time on appeal.
In making the argument, Trotter notes the manner in which the State pled the count of capital murder under K.S.A. 21-3439(a)(6), the intentional and premeditated killing of more than one person. The State alleged that Trotter did
“unlawfully, feloniously, and intentionally and with premeditation, kill a human being, to-wit: Traylennea Huff, which constituted the killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct, in violation of K.S.A. 21-3439.”
Trotter argues this count required proof of the premeditated murder of more than one person, meaning the State was required to prove the same elements as in the first-degree murder count, which alleged the premeditated murder of Wallace.
He points to the juiy instructions for further support. The juiy was instructed that one of the elements to be proved in the capital murder charge was that “the premeditated and intentional killing of Traylennea Huff and James Wallace were part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.” The jury was also instructed that first-degree premeditated murder is a lesser included offense of capital murder and was given the option of finding Trotter guilty of the first-degree premeditated murder of Huff.
Although Trotter does not object to the manner in which the charge was pled or to the instructions, he argues the first-degree premeditated murder of Wallace — which was charged as a separate count — was also a lesser included offense of the capital-murder charge. As a result, he suggests his conviction for the first-degree premeditated murder of Wallace must be reversed because K.S.A. 21-3107(2) provides a “defendant may be convicted of either the crime charged or a lesser included crime, but not both” (Emphasis added.)
In presenting this argument in his appellant’s brief, Trotter relies primarily upon this court’s decision in State v. Martis, 277 Kan. 267, Syl. ¶ 1, 83 P.3d 1216 (2004). In Martis, the defendant was charged with capital murder under K.S.A. 21-3439(a)(6), the intentional and premeditated killing of more than one person. The district court gave lesser included instructions of first-degree premeditated murder, as defined by K.S.A. 21-3401(a), relating to both victims, and Martis was convicted on both lesser included offenses. On appeal, Martis argued he could not be convicted of two lesser included offenses arising from one charged count. This court disagreed and approved the instructions holding that a district court “is required to give lesser included instructions for each victim set forth in the capital-murder charge.” 277 Kan. 267, Syl. ¶ 2. Applying Martis’ holding that the first-degree murder was a lesser offense, Trotter invokes the prohibition in K.S.A. 21-3107(2) against convictions for both the crime charged and a lesser included offense.
Subsequently, in a letter of additional authority filed pursuant to Supreme Court Rule 6.09 (2008 Kan. Ct. R. Annot. 47), Trotter cited State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008), which raised the same issue as we consider here, but under a previous version of K.S.A. 21-3107. The statute, as considered in Scott, stated:
“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 may be 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.” K.S.A. 21-3107(2) (Furse).
Scott based his argument on the “necessarily proved” language of K.S.A. 21-3107(2)(d) (Furse), which was deleted from the statute effective July 1, 1998. L. 1998, ch. 185, sec. 1.
The State in Scott did not dispute that the first-degree murder of more than one victim must be necessarily proved in order to prove capital murder, and this court accepted that conclusion. Consequently, the focus of this court’s analysis was on whether the conviction for first-degree murder must be reversed. We explained:
“Although multiple punishments for the same crime are constitutionally prohibited, this prohibition extends only to prevent a sentencing court from prescribing greater punishments than the legislature intended. [Citations omitted.] The Double Jeopardy Clause is not violated where the legislature specifically authorizes cumulative punishment under two statutes for the same offense. [Citation omitted.]
“The issue is whether the Kansas Legislature intends cumulative punishment for capital murder under K.S.A. 21-3439(a)(6) and first-degree premeditated murder under K.S.A. 21-3401(a). We conclude the answer is ‘no.’ ” 286 Kan. at 65-66.
In reaching the conclusion the legislature did not intend cumulative punishment, we examined various Kansas statutes and cases from Virginia, noting that the relevant portion of the Kansas Death Penalty Act, K.S.A. 21-3439(a)(6), is patterned after a similar provision in the Virginia Death Penalty Act and, therefore, Virginia precedent could reflect the Kansas Legislature’s intent. After discussing these authorities, we stated:
‘We are unable to conclude from a plain reading of K.S.A. 21-3439(a)(6) and its legislative history that the legislature intended to override the acknowledged reach of K.S.A. 21-3107(2)(d). In other instances, the legislature has not hesitated to state when K.S.A. 21-3107(2) is not to be applied. See K.S.A. 21-3436 (precluding application of K.S.A. 21-3107[2] to specific felony offenses regardless of whether such felony is distinct from the alleged homicide). Here, there has been no such declared legislative intent. Accordingly, we conclude Scott’s conviction for the first-degree premeditated murder of [the victim in the noncapital count] must be reversed.” 286 Kan. at 68.
Trotter asserts that Scott controls, and his conviction for the first-degree murder of Wallace must also be reversed.
Application of Scott to this case is not as straightforward as Trotter suggests, however, because there are two potential distinctions. First, the “necessarily proved” language relied upon in Scott had been deleted from K.S.A. 21-3107 before Huff and Wallace were murdered. Second, Scott raised the multiplicity issue before trial and again on direct appeal. 286 Kan. at 62, 65. In contrast, Trotter raises the issue for the first time in this appeal from a summary denial of a K.S.A. 60-1507 motion.
Regarding the first potential distinction, the determination of whether the first-degree murder of Wallace was a lesser included offense must be determined by the statute in effect at the time Huff and Wallace were murdered. That version of the statute, which is still in effect, states:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
“(a) A lesser degree of the same crime;
“(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
“(c) an attempt to commit the crime charged; or
“(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).” K.S.A. 21-3107(2).
Because this provision does not include the “necessarily proved” language relied upon in Scott, that decision does not control the question óf whether Trotter s first-degree premeditated murder conviction was a lesser included offense of the capital-murder conviction.
This question is answered by the decision in Mariis, however, which held that first-degree premeditated murder was a lesser included offense of capital murder by application of K.S.A. 21-3107(2)(b), “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” Martis, 277 Kan. at 276.
Given that Martis establishes that Trotter s first-degree premeditated murder conviction is a lesser included offense of his capital-murder conviction, the remainder of the Scott analysis of this issue applies: K.S.A. 21-3439(a)(6) does not express a legislative intent contrary to that expressed in K.S.A. 21-3107(2), which unambiguously states a defendant may not be convicted of both a charged crime and a lesser included offense. Hence, under Martis and Scott, Trotter s two convictions arising out of the double homicide, one for capital murder based upon the intentional and premeditated killing of more than one person under K.S.A. 21-3439(a)(6) and the other for first-degree premeditated murder under K.S.A. 21-3401(a) of one of those victims, are improperly multiplicitous.
The other potential distinction is that Scott raised the multiplicity issue before his trial and again on direct appeal. In this case, the issue was not raised during the trial proceedings, on direct appeal, or during the district court proceedings on the K.S.A. 60-1507 motion. Generally, issues not raised before a district court, including constitutional grounds for reversal, cannot be raised for the first time on appeal. See State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007); State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).
Acknowledging this general rule and recognizing the procedural difficulties of raising an issue for the first time on appeal, .Trotter maintains (a) his sentences are “illegal” because the trial court lacked jurisdiction to permit the convictions of both capital murder and first-degree premeditated murder for the double homicide and (b) alternatively, exceptional circumstances exist that excuse Trotters failure to raise the issue on direct appeal. Based on these arguments, Trotter contends he is entitled to bring a request for relief.
Trotter s arguments and our analysis require us to consider several exceptions to the general rule that an issue cannot be considered for the first time on appeal. These exceptions have developed into at least the following three general categories that are relevant to our discussion: (1) those which apply to direct appeals in civil and criminal cases generally; (2) those which apply to claims of an illegal sentence; and (3) those which apply to issues raised in K.S.A. 60-1507 proceedings.
The first category of general exceptions relating to direct appeals appears to have been synthesized into a partial list in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). There the court recognized three situations where an issue, including a constitutional issue, could be presented for the first time on direct appeal: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and the issue is finally determinative of the case; (2) resolution of the question is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the district court reached the right conclusion but relied on the wrong ground or assigned a wrong reason for its decision. The Pierce exceptions have been frequently cited in subsequent cases. See, e.g., State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008).
However, as Trotter notes, there are other exceptions, including one allowing an issue relating to the court’s subject matter jurisdiction to be raised at any time. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Under this fine of cases, it is held that a party does not waive jurisdictional defects by failing to object to the procedure in district court. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
Applying these general exceptions, we have allowed multiplicity issues to be raised for the first time on direct appeal, noting that the question raises an issue of law and implicates double jeopardy, a fundamental right. E.g., State v. Nguyen, 285 Kan. 418, 433, 172 P.3d 1165 (2007); State v. Walker, 283 Kan. 587, 609, 153 P.3d 1257 (2007); State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984).
When, as here, a multiplicity issue is raised in a K.S.A. 60-1507 motion, however, a movant must also show exceptional circumstances excusing the failure to raise the issue on direct appeal. Supreme Court Rule 183(c) (2008 Kan. Ct. R. Annot. 247) (“Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised [in a K.S.A. 60-1507 motion] even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.”); Pabst v. State, 287 Kan. 1, 6, 192 P.3d 630 (2008) (K.S.A. 60-1507 action cannot be used as a substitute for an appeal of trial errors).
a. Jurisdiction
Although Trotter presents an argument of excéptional circumstances as an alternative, he first attempts an end run around the exceptional circumstances requirement by suggesting his sentence was illegal and, even though this action is brought as a K.S.A. 60-1507 action, should be treated as a motion to correct an illegal sentence under K.S.A. 22-3504(1). K.S.A. 22-3504(1) creates a remedy for an illegal sentence, stating: “The court may correct an illegal sentence at any time.” An “illegal sentence” has been defined by case law to mean a “sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutoiy provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 (2006).
In addition, Trotter cites the general authorities holding that subject matter jurisdiction may be raised at any time and that a party does not waive jurisdictional defects by not objecting to the procedure in district court. See Vorhees, 283 Kan. at 397; Mid-Continent Specialists, Inc., 279 Kan. at 185.
Nevertheless, we need not determine the merits of Trotter s attempt to assert a jurisdiction argument for the first time on appeal from the denial of a K.S.A. 60-1507 motion because in Edwards, 281 Kan. 1334, we rejected the premise of Trotter s argument.
In Edwards, we noted that jurisdiction is acquired in a criminal case upon the filing or amendment of a complaint, indictment, or information, and K.S.A. 21-3107(2) does not bar the charging of multiplicitous offenses. Rather, it defines the remedy if a defendant is convicted of multiplicitous offenses by providing that only one conviction may stand. 281 Kan. at 1338-39. Applying this reasoning, we held: “We therefore conclude a claim that sentences are multiplicitous is not a claim that the sentences were imposed by a court without jurisdiction as is necessary to come within the narrow definition of illegal sentence under K.S.A. 22-3504(1).” 281 Kan. at 1341.
The holding in Edwards controls this issue and requires us to reject Trotter s argument that the district court lacked jurisdiction.
b. Ineffective Assistance of Counsel
In the alternative, Trotter contends the ineffectiveness of his first appellate counsel, as evidenced by counsel’s failure to raise a meritorious multiplicity issue on direct appeal, is an exceptional circumstances excusing his failure to raise the issue on direct appeal.
Indeed, we have determined that a K.S.A. 60-1507 movant can overcome the failure to raise an issue at trial or on direct appeal and demonstrate exceptional circumstances by persuading a court that there was ineffective assistance of trial counsel in fading to object regarding an issue; there was ineffective assistance of direct appeal counsel in fading to raise an issue; or there was newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and movant at the time of the trial and direct appeal. Bledsoe v. State, 283 Kan. 81, 88-89, 91, 150 P.3d 868 (2007).
The first two of these exceptions would have allowed Trotter’s argument to have been raised before the district court in his K.S.A. 60-1507 motion because he alleges ineffective assistance of counsel in fading to raise the multiplicity issue at trial or in his direct appeal, although he focuses upon the appeal. However, these exceptions do not determine, at least by themselves, whether an appeal from the denial of a K.S.A. 60-1507 motion can be used as a platform for discussing an entirely new issue premised upon allegations of ineffective assistance of counsel, even if the issue could have been raised before the district court.
On several occasions, we have considered whether the exceptions relating to ineffective assistance of counsel can be applied when raised for the first time on appeal, and, as a general rule, we have concluded the exception cannot be applied. See, e.g., State v. Gleason, 277 Kan. 624, Syl. ¶ 5, 88 P.3d 218 (2004). Rather, we have generally determined a district court must consider the evidence to determine the two-prong test for estabhshing ineffective assistance of counsel, which requires a defendant to “show ‘(f) counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) [defendant] was prejudiced to the extent that there [was] a reasonable probability [of success], but for counsel’s deficient performance.’ [Citations omitted.]” State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004); see Bledsoe, 283 Kan. at 90-91. In most cases, we would remand to the district court for an evidentiaiy hearing on at least the first prong of the ineffective assistance of counsel standard. See, e.g., Lujan v. State, 270 Kan. 163, 14 P.3d 424 (2000); State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986).
We have rarely found an exception to the general rule that an ineffective assistance of counsel claim should be first considered by the district court, but did so on at least one occasion in Laymon v. State, 280 Kan. 430, 444, 122 P.3d 326 (2005), under circumstances we recently labeled “extraordinaiy.” State v. Swisher, 281 Kan. 447, 450, 132 P.3d 1274 (2006). In our decision in Laymon, we held that the two prongs of ineffective assistance—deficient performance by counsel and prejudice as a result of the deficiency—were demonstrated as a matter of law by the appellate record and, therefore, remand to the district court was not necessary.
Laymon presented such a circumstance because the appellate counsel failed to raise a sentencing argument on direct appeal, even though counsel’s colleague from the Kansas Appellate Defender office (ADO) was simultaneously, and successfully, pursuing that argument in another case. 280 Kan. at 444. In recognizing an exception to the general rule, we stressed that the failure of appellate counsel to raise an issue on appeal is not, per se, ineffective assistance of counsel. 280 Kan. at 439. It was only the circumstance of timing and imputed knowledge of other attorneys working for the ADO that led us to the extraordinary result, one which could be reached because there were no factual issues and the two-prong ineffective assistance of counsel test could be applied as a matter of law based upon the appellate record.
Trotter argues a similar circumstance exists in his case. According to Trotter, because of this court’s holding in Mariis, his appellate counsel on direct appeal — who was the same counsel as had argued the appeal in Mariis — knew that Trotter was convicted of one count of the greater offense (capital murder) and one count of the lesser included offense (first-degree premeditated murder) for a double homicide. This knowledge, according to Trotter, should have been enough to cause his appellate counsel to raise the issue of multiplicity on direct appeal and to argue that under K.S.A. 21-3107(2) a defendant “may be convicted of either the crime charged or a lesser included crime, but not both.”
In considering this argument, we note that the authorities necessary to make this argument were available to Trotter’s appellate counsel. Mariis was decided after Trotter’s direct appeal was docketed but before his brief was filed. (Trotter was convicted in 2003, the decision in Martis was filed on February 6,2004, Trotter’s brief on direct appeal was filed 10 months later on December 7, 2004, and the decision in Trotter I was filed February 3, 2006.) Thus, the arguments and holding in Martis were known to the appellate counsel who had just concluded the appeal in Martis and was preparing the brief in Trotter’s appeal.
Unlike the situation in Laymon, however, the argument counsel had advanced in Martis was not the same argument as Trotter wishes had been advanced in his direct appeal. In Martis, the defendant claimed a due process violation because he was convicted and sentenced for two first-degree premeditated murders arising as lesser included offenses of the one count of capital murder that had been charged. 277 Kan. at 274. Nevertheless, Trotter is correct that his counsel had knowledge of this court’s holding that the first-degree premeditated murder of both victims were lesser included offenses of the capital-murder charge.
In addition, by the time Trotter’s brief was filed in his direct appeal, other attorneys in the Capital Appellate Defender office had made the argument that a defendant could not be convicted of both capital murder and the first-degree premeditated murder of one of the victims when they filed the defendant’s brief in State v. Scott on March 8, 2002. The brief in Scott was filed even before Trotter committed his crimes, and that case was still pending at the time of Trotter’s direct appeal. As we have discussed, although the basis for Trotter’s and Scott’s arguments as to why the premeditated offense should have been considered a lesser included offense differed, the premise — that the offense was a lesser included offense and a defendant could not be convicted of both the charged crime and the lesser crime — was the same. This court’s decision in Scott did not depend on any authorities not available at the time Trotter’s briefs were filed in his direct appeal.
Hence, as in Laymon, other attorneys from the Appellate Defender office were simultaneously and successfully appealing the issue that could have been, but was not, raised in a direct appeal. Because there was no intervening authority affecting the outcome in Scott, it is as likely that the same double jeopardy argument that succeeded at the time of Scott’s direct appeal would have succeeded at the time of Trotter’s direct appeal. In these circumstances of timing, imputed knowledge of attorneys, and existence of necessary precedent, Trotter’s situation is like that presented in Laymon.
Even so, in State v. Swisher, 281 Kan. 447, we concluded the confluence of the circumstances of timing and imputed knowledge did not allow this court to grant relief where the issue was raised for the first time on appeal. For our purposes it is important to note that this court did not conclude that the failure to raise the issue in the district court was an absolute procedural bar; rather, the court remanded the case to the district court for an evidentiaiy hearing after determining the ineffective assistance of counsel issue could not be considered as a matter of law. Remand was determined to be necessaiy because questions existed as to whether counsel’s decision to not raise the issue could have been strategic and as to whether the argument had the same likelihood of success as it had in the later case because there had been intervening appellate authority.
A remand is not necessaiy in this case, however, because Swishers distinguishing features do not apply. First, there has been no suggestion that a strategic reason might explain the failure to raise the multiplicity issue. Second, as previously discussed, there was no intervening appellate authority between Trotter s direct appeal and the appeal in Scott where the same issue was successfully argued; hence, the probability of success in Trotter s direct appeal was as strong as it was in Scott’s direct appeal.
In other words, as in Laymon, the determination of whether counsel was ineffective can be determined as a matter of law based upon the appellate record, and remand to the district court is not necessary. In addition, the second prong of the ineffective assistance of counsel test — prejudice—is met because the multiplicity issue is meritorious and would result in the reversal of a conviction.
Hence, we conclude that the failure of Trotter’s counsel on direct appeal to raise the multiplicity argument, an argument based upon authorities available to counsel at the time of the direct appeal and related to arguments that appellate counsel or his colleagues had made on behalf of other defendants, creates an exceptional circumstance allowing Trotter to raise the issue for the first time on appeal from the denial of his K.S.A. 60-1507 motion.
As a result, Trotter is entitled to relief pursuant to the holdings in Scott and Martis. We hold that Trotter’s convictions for capital murder and first-degree premeditated murder are multiplicitous, and Trotter’s first-degree premeditated murder conviction of Wallace is reversed.
2. Issues Raised Before District Court
Next, Trotter argues the district court erred by summarily denying his K.S.A. 60-1507 motion. His motion alleged that the trial court erred in failing to give an eyewitness instruction and in failing to grant a new trial based upon newly discovered evidence. Trotter contends the court should have first appointed counsel and conducted an evidentiary hearing.
“[A] movant has tbe burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.” Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007).
In assessing whether this burden has been met, a district court has three options which were explained in Lujan, 270 Kan. at 170-71. First, the court may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the movant’s motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant. Finally, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the movant. If the issue or issues are substantial, involving events in which the movant participated, the court must proceed with a hearing in the presence of the movant.
In this case, the district court followed the first avenue of approach by summarily dismissing Trotter’s K.S.A. 60-1507 motion without conducting a hearing. The standard of review for the summaiy dismissal of K.S.A. 60-1507 motions is de novo, requiring an appellate court to determine whether the motion, files, and records of the case conclusively show that the movant is entitled to no relief. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
a. Eyewitness Instruction
As one claim for relief in Trotter’s pro se K.S.A. 60-1507 motion, he asserted ineffective assistance of trial counsel for failing to request an eyewitness jury instruction.
As previously discussed, to obtain a reversal of a conviction based upon ineffective assistance of trial counsel, a defendant must establish that counsel’s performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitu tion, and that counsel’s deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. Pabst, 287 Kan. at 16; Bledsoe, 283 Kan. at 90.
The district court, in its memorandum decision, rejected Trotter’s claim of ineffective assistance of trial counsel, finding that Trotter did not establish the first prong of the test. The district court found counsel’s performance was not deficient, stating that “the record reflects [trial counsel] did request [an eyewitness identification] instruction, but the Court refused to so instruct the jury.” As Trotter points out, this finding is inaccurate. At trial, Trotter requested a jury instruction on credibility of witnesses, not eyewitness identification. See Trotter I, 280 Kan. 800, 805, 127 P.3d 972 (2006). As a consequence, on direct appeal, this court applied the clearly erroneous standard and determined the failure to give an eyewitness jury instruction was not erroneous. 280 Kan. at 806, 809.
In this appeal, Trotter observes that if the instruction had been requested he would not have had to meet the more burdensome clearly erroneous standard. See State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006) (requested instruction should be granted if evidence supports giving of instruction; reversible error only if instructions as whole do not fairly and properly state law and would have misled jury). Trotter suggests his counsel’s performance must be considered deficient because he would have been successful in estabhshing error on appeal if a lower standard of appellate review had applied.
Even if we assume the validity of this argument, Trotter must meet the second prong of the ineffective assistance of counsel test and establish that counsel’s deficiency was so serious it deprived Trotter of a fair trial. In Trotter I, the court indirectly answered whether this prong could be satisfied when, as an alternative to its finding that there was no error, it considered whether the failure to give the eyewitness instruction was reversible if it was assumed there had been error. The Trotter I court stated:
“To establish reversible error, Trotter must demonstrate that there is a real possibility that the jury would have rendered a different verdict if the trial court had given the eyewitness identification instruction from PIK Crim. 3d 52.20. [Citation omitted.] Trotter has failed to make that showing. His trial counsel actively pursued Damante’s in-court identification, knowing that it would be contradicted by Eddington’s testimony. Trotter’s counsel also thoroughly attacked Damante’s identification, highlighting Damante’s inability to identify Trotter the day after his parents were murdered. Here Damante was familiar with Trotter, and his identification was thoroughly challenged during the trial; there is no possibility that the jury would have returned a different verdict if the eyewitness identification instruction had been given. Therefore, the trial court did not err by not giving the unrequested eyewitness instruction.” 280 Kan. at 809.
These conclusions control the question of whether trial counsel’s performance in failing to request an eyewitness instruction was so serious as to deprive Trotter of a fair trial. Trotter cannot establish the prejudice prong of the ineffective counsel test, and the district court did not err in summarily dismissing his claim.
b. Newly Discovered Evidence
In addition, Trotter claims the district court erred in summarily denying his request for a new trial in light of newly discovered evidence. Again, because the issue arises in the context of a summary denial in a K.S.A. 60-1507 proceeding, our standard of review is de novo. See Bellamy, 285 Kan. at 354.
This request for relief is based upon the two affidavits of Trotter’s codefendants which Trotter attached to his K.S.A. 60-1507 motion. As previously noted, the district court determined Nash’s affidavit did not add anything to his testimony. At trial, Nash testified he left the scene before the crimes were committed and did not observe the shootings; the district court noted that Nash’s affidavit did not change this testimony. Regarding Eddington’s affidavit, the district court observed that Eddington had testified extensively, making it impossible to determine specifically what Eddington is referring to in his affidavit when he stated “the statement I made” against Trotter at trial was untrue.
In essence, the district court determined Trotter had not met his burden of establishing his right to an evidentiary hearing but had made only conclusoiy allegations. If we examine Trotter’s motion in isolation without considering the affidavits, we agree.
Trotter used the form for K.S.A. 60-1507 motions that is sanctioned by Supreme Court Rule 183(e) (2008 Kan. Ct. R. Annot. 247) (“A motion to vacate a sentence shall be deemed sufficient if in substantial compliance with the form set forth by the judicial council.”). Despite using the form, Trotter did not complete it. He did set out his general allegations in paragraph 10 of the form, which reads: “State concisely all the grounds on which you base your allegation that you are being held in custody unlawfully.” Trotter stated: “(a) Perjury Testimony, (b) Recantation of Testimony,” [and] “(c) Ineffective Assistance of Counsel.” But he failed to add any facts or an evidentiary basis in paragraph 11, which reads: “State concisely and in the same order the facts which support each of the grounds set out in (10), and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts:” Trotter left the space below this statement completely blank. Clearly, without the required specifics, Trotter s motion is conclusory and inadequate, and based upon the motion alone, Trotter did not meet his burden.
Nevertheless, we must consider the affidavits, which were attached to the motion and which provide some additional specificity. Trotter argues these affidavits were sufficient to require a determination that he is entitled to an evidentiary hearing. He cites the decision of Rodgers v. State, 197 Kan. 622, 419 P.2d 828 (1966), as authority for his argument. In Rodgers, the court described the motion it was considering as follows:
“The present motion to vacate was prepared and filed by retained counsel for petitioner and follows the form prescribed by the court under Rule No. 121(e) (194 Kan. XXVII). As incredible as it may seem petitioner sets out in his motion certain definite allegations of fact and the names and addresses of seven witnesses from whom the court may ascertain the truth of his statements. He alleges that while he and a codefendant stood charged with first-degree murder, the officers managed to procure the codefendant as a witness for the prosecution upon the promise and assurance of leniency; that his conviction was obtained largely upon the false testimony of this codefendant; that the prosecuting attorney knew this testimony was false at the time it was given; that after petitioner was convicted the charge against this codefendant was reduced from first-degree murder to a charge of being an accessory to manslaughter in the third degree; and that upon a plea of guilty to the amended information this codefendant was sentenced to not more than three years. Petitioner further alleges this codefendant later signed a written statement admitting that his testimony was false and was given by him at the trial upon promises and assurances of leniency by the prosecuting attorney.” 197 Kan. at 623.
In reversing the summary dismissal of the motion, this court noted that petitioner had made “specific and detailed factual assertions.” 197 Kan. at 625. While the court viewed these assertions as “improbable, at this juncture [they] cannot be said to be incredible when supported in some manner by a written statement of a codefendant. If the allegations are true the petitioner is clearly entitled to relief.” 197 Kan. at 625.
Trotter argues the same conclusions apply to the affidavits he submitted as support for his petition, and he is correct that his codefendants’ affidavits have characteristics similar to the allegations mentioned in Rodgers. Each attested his statements were procured upon promises of leniency and that he made his statements meet the version of facts suggested by detectives.
Nevertheless, this issue is presented in a different posture than it was presented in Rodgers, where the pleading referred to a written statement of the codefendant. The Rodgers court suggested that “[t]he contents of the written statement would seem to be of sufficient importance to require its production.” 197 Kan. at 625. Consequently, the court remanded the case with directions that the district court conduct a preliminary hearing to obtain the written statement. The district court was instructed to review the statement to determine if an evidentiary hearing was necessary. The court continued, noting:
“Not every colorable allegation entitles a prisoner to a trip to the sentencing court. If it shall appear at a pretrial conference or upon any other proceeding before the court that the petitioner’s statements are uncorroborated then such uncorroborated statements of the petitioner could very well be found insubstantial and insufficient to justify the production of the prisoner at a full plenary hearing.” 197 Kan. at 625.
Here, we have the written statements — the codefendants’ affidavits. Consequently, the district court could and, now, this court can examine whether the witnesses’ statements provide the support necessary for Trotter to meet the burden of establishing a right to an evidentiaiy hearing.
In cases subsequent to Rodgers, this court has explained that an evidentiary hearing is not justified unless the altered testimony is material and would cause the exoneration of the K.S.A. 60-1507 movant. E.g., Potts v. State, 214 Kan. 369, 520 P.2d 1259 (1974). Thus, even in circumstances where an affidavit of the witness or an offer of proof has been presented showing a change in the witness’ testimony, a denial of the motion without an evidentiary hearing has been upheld on appeal if the alleged perjury does not establish that the testimony would have entitled the movant to relief. E.g., Sullivan v. State, 222 Kan. 222, 223, 564 P.2d 455 (1977) (petitioner failed to meet burden when “[n]o facts were set forth which indicated the nature of the perjury”); Van Bebber v. State, 220 Kan. 3, 4, 551 P.2d 878 (1976) (“A 1507 movant must allege facts which, if true, would entitle him to relief. . . . Even if true, the movant’s offers of proof would not entitle him to relief. The tendered affidavit would have in no way exonerated the movant from his involvement in the crimes.”).
Arguing that Trotter is not entitled to relief, the State, urging us to apply a standard of review applicable to a motion for new trial, suggests the district court assessed credibility. The State argues we should not substitute our judgment for that of the judge who presided over the trial. However, the State implies a credibility determination that was not explicitly stated by the district court. Without specific findings regarding credibility, deference to the district court’s credibility determination cannot serve as the basis for our decision.
In addition, the State argues that the affidavits are factually insufficient to show relief is warranted. In this regard, we agree with the State.
Regarding Nash’s affidavit, even if we were to read it broadly as being a recantation of his trial testimony and not just a recantation of his testimony at his preliminary hearing as stated in the opening sentences of the affidavit, the affidavit is consistent with Nash’s trial testimony and the testimony of his codefendants. All of them agreed that Nash was not at the scene during the home invasion and the homicides. His testimony and that of all of his codefendants substantiates that he did not observe what took place or the roles of anyone in the actual commission of the robbery or murders. -
Regarding Eddington’s affidavit, as the district court noted, Eddington makes a broad statement, referring to “the statement I made . . . against . . . Christopher Trotter.” We agree with the district court that this broad statement is insufficient because it lacks the specificity necessary for the court to judge whether the changed testimony is material. See Sullivan, 222 Kan. at 223. Nevertheless, our analysis cannot end here because, although not discussed by the district court, Eddington becomes more specific, indicating that “the police made it clear that Chris Trotter had to be the the [sic] master mind behind this whole crime! So I made my statements and testmonies [sic] match up to what they wanted to hear!” Importantly, Eddington does not suggest that Trotter was not a participant in the crimes; he merely suggests Trotter was not the mastermind.
This statement is contrary to Eddington’s testimony at trial and is contrary to the testimony of Navarre and Nash. Each of the codefendants indicated the robbery had been Trotter’s idea and he had approached them to see if they would participate. In addition, during questioning, each of the codefendants was led through the planning process and asked about Trotter’s ideas and actions in preparing for the robbery.
Nevertheless, it is not relevant to Trotter’s guilt or innocence whether he was the mastermind, a mere follower, or something in between. His role as the instigator or mastermind did not relate to any element the State was required to prove. Arguably, such evidence might have been relevant to premeditation if there had been a suggestion that the murders had been a part of the plan. But there was no evidence from Eddington or anyone else that murder had been contemplated or discussed. Rather, the evidence was of a plan to merely restrain the victims, a plan that went tragically awry when Wallace fought with Trotter and removed the shirt Trotter was wearing over his face to hide his identity. Regarding the robbery charge, the court instructed the jury on an aiding and abetting theory. Under this theory, it was necessary to show that Trotter had aided the robbery, but it was not necessary to establish that he was the mastermind. Likewise, to support the conspiracy charge, the State had to prove Trotter was a conspirator but did not have to establish he was the instigator or leader of the conspiracy.
On the other hand, a defendant’s role as a mastermind could be material in determining whether the death penalty should be imposed. Hence, had the jury decided to impose the death penalty in this case our conclusion might be different. But that punishment was not imposed, and Trotter’s role as a mastermind is irrelevant to Trotter’s guilt or innocence. Thus, based upon our de novo review, we conclude the affidavit is insufficient to establish the right to an evidentiary hearing; the altered testimony would not be material or exonerate Trotter.
The district court correctly rejected Trotter’s contentions and correctly decided to summarily deny the K.S.A. 60-1507 motion.
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
JOHNSON, J.:
Jerome S. Tilzer, individually and as plaintiff ad litem for Rita Tilzer, Todd A. Tilzer, and Jill Jokelson (hereafter collectively referred to as Tilzers) appeal the granting of summary judgment in favor of the defendants, Grant L. Davis and Davis, Bethune & Jones, LLC (hereafter collectively referred to as Davis), in this legal malpractice action. Tilzers raise four issues on appeal: (1) whether Tilzers’ legal malpractice claims are compulsoiy counterclaims to Davis’ motion to enforce an attorney hen in a prior Missouri state court action and therefore barred by res judicata in the present action; (2) whether Tilzers’ claims are barred by collateral estoppel based upon the litigation in the Missouri action; (3) whether the district court erred in ruling that the “Global Settlement” in the Missouri action was not an “aggregate setdement” within the meaning of Rule 4-1.8(g) of the Missouri Rules of Professional Conduct (Rule 4-1.8[g]); and (4) whether the district court erred in ordering certain documents to be sealed. We find that the district court did not abuse its discretion in ordering that the confidential settlement documents be filed under seal. However, the court did err in holding that Tilzers’ claims were compulsory counterclaims in the Missouri action and that collateral estoppel applied to the aggregate settlement issue. Therefore, we reverse and remand.
FACTUAL OVERVIEW
In September 2001, Rita Tilzer hired attorney Grant L. Davis and his firm Davis, Bethune & Jones, L.L.C., to represent her in an action against drug manufacturers Eh Lilly and Company and Bristol-Meyers Squibb Company for negligently enabling pharmacist Robert Courtney to dilute her cancer drugs. The lawsuit was one of several hundred individual suits filed in Jackson County, Missouri, by cancer patients or their surviving family members; Davis represented many, but not all of the plaintiffs. After Rita Tilzer died in January 2002, her husband and children were substituted as plaintiffs. Derek E. Jokelson, an attorney from Philadelphia and son-in-law of Rita Tilzer, acted as cocounsel for Tilzers after being admitted pro hac vice in the Missouri proceeding. Jokelson is not a named defendant in the Kansas malpractice action.
After commencement of the trial in another patient’s separate case in October 2002, the pharmaceutical companies offered a settlement proposal. After mediation, a settlement agreement was reached in which all plaintiffs who had filed a lawsuit against the companies were eligible to “opt in.” Under the agreement, titled “Global Settlement,” the defendants would establish a settlement fund of not less than a specified amount and not more than a specified amount, with the exact amount to be determined through binding arbitration.
The Missouri trial judge, Judge Lee Wells, appointed two special masters. One was a former circuit court judge and the other was a former Missouri Court of Appeals judge. Judge Wells worked with the special masters to develop a system for evaluating the individual claims, apparently with a view to avoiding the Global Settlement being classified as an aggregate settlement. Essentially, the special masters would apply uniform standards to each claimant who had opted in to the settlement and would determine the amount of money each claimant would receive from the settlement fund.
Tilzers opted in to the settlement agreement and completed the applicable claim form. The documents that Tilzers signed included an agreement to keep the terms of the settlement confidential. The special masters established the dollar amount to be awarded to Tilzers, and Judge Wells approved that award, despite Tilzers’ objection. On November 24, 2003, the pharmaceutical companies filed a motion to enforce the settlement agreement, requesting that the court order Tilzers to execute a dismissal with prejudice and otherwise comply with the terms of the agreement. Two days later, Davis filed a motion to enforce an attorney’s Hen in the Missouri case.
Tilzers opposed the motion to enforce settlement, arguing that the agreement was “(1) illegal and unethical on its face; (2) [was] in violation of Rule 4-1.8(g); and (3) [had] been obtained through deceit and fraud in factum.” At a December 22, 2003, hearing, Tilzers acknowledged that a formal response to the attorney’s hen motion had not yet been filed, but advised Judge Wells that Tilzers’ arguments in opposition to Davis’ attorney’s hen motion would track Tilzers’ response to the drug companies’ settlement enforcement motion. With the parties’ consent, the judge continued the hearing on Davis’ attorney’s hen motion to January 2, 2004.
On December 30, 2003, Tilzers filed a counterclaim against Davis, alleging breach of fiduciary duty, professional negligence, and breach of contract. Tilzers asserted the same claims in a separate action filed in the United States District Court for the District of Kansas prior to January 2, 2004. That separate federal court action was subsequently dismissed for lack of complete diversity.
At the scheduled motion hearing on January 2, 2004, Tilzers sought a continuance to allow for discovery on its counterclaim. Tilzers expressed concern that the legal malpractice claim might later be deemed a compulsory counterclaim to the motion for enforcement of the attorney’s lien, and, if so, Tilzers asserted that they were entitled to fully htigate the matter, including the right to conduct discovery and to submit the question to a jury. Judge Wells expressed a desire to conclude the Missouri case and denied the continuance. However, the judge informed the parties that he did not intend for his ruling on the attorney’s hen motion to foreclose any future legal malpractice action. The Tilzers withdrew from the hearing to avoid a later claim that they were collaterally estopped on their legal malpractice claims. The court heard the testimony of Grant Davis and Jerome Tilzer.
In its January 14, 2004, order, the court granted Davis’ motion on the attorney s lien and memorialized its order granting enforcement of the settlement agreement. Judge Wells specifically found that the Global Settlement was not an aggregate settlement within the meaning of Rule 4-1.8(g), because of the methodology developed by the court and special masters. The court also found no credible evidence of any misconduct by Davis.
The Tilzers did not appeal the Missouri trial court’s rulings. On April 5, 2004, Tilzers dismissed their counterclaim. Approximately 3 weeks later, Tilzers filed the instant legal malpractice action in the District Court of Johnson County, Kansas, claiming breach of fiduciary duty, professional negligence, negligent misrepresentation, breach of contract, and fraud arising from Davis’ representation in the Missouri action. Tilzers specifically alleged that the Missouri settlement agreement was effectively an aggregate settlement and that Davis had failed to comply with the disclosure requirements of Rule 4-1.8(g).
During discovery in the Kansas malpractice action, Tilzers filed a motion to compel the testimony of Grant Davis, to which they attached documents containing information which they had agreed to keep confidential in the Missouri proceeding. The pharmaceutical companies intervened to request that the Kansas court order that any documents, pleadings, or other materials containing the terms of the Missouri settlement agreement be filed and maintained under seal. Over Tilzers’ objection, the Kansas court granted the intervenors’ motion.
Davis filed a summary judgment motion, claiming that tire malpractice claims were compulsory counterclaims to the motion to enforce his attorney’s hen in the Missouri action and, accordingly, were now res judicata in the Kansas action. Further, Davis argued that the aggregate settlement question, as well as the other claims of legal malpractice, were litigated as defenses to the motion to enforce the attorney’s hen in the Missouri proceeding, and, therefore, the doctrine of collateral estoppel also precluded rehtigating the issues in the current proceeding. The Tilzers responded with their motion for partial summary judgment, asking the court to find that Davis participated in the making of an aggregate settlement without providing Tilzers with the disclosures required by Rule 4-l.B(g).
The Johnson County District Court granted summary judgment to Davis, finding that all of Tilzers’ claims arose from the attorney-client relationship in the Missouri action for which Davis had sought to enforce an attorney’s fee hen. The Kansas court interpreted the Missouri compulsory counterclaim rule as requiring Tilzers’ malpractice claims to have been asserted in the Missouri action, and, accordingly, found Davis “entitled to summary judgment on the codified res judicata claim preclusion grounds.” Further, the Kansas court determined that Tilzers were collaterally es-topped from relitigating the aggregate setdement question.
The Kansas court denied Tilzers’ motion for partial summaiy judgment, reasoning that because “the amount that each of [Davis’] clients would receive [under the setdement] was not and could not have been known by the lawyers prior to the announcement to all of the opted in claimants . . . this could not be an aggregate setdement contemplated by the rules of professional conduct.”
Tilzers filed a timely appeal of the summary judgment rulings, and the case was transferred to this court, pursuant to K.S.A. 20-3018(c).
STANDARDS OF REVIEW
Procedurally, this case involves the review of the district court’s rulings on summaiy judgment motions, the standard for which has been stated as:
“ ‘ “ ‘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.]” ’ ” Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
To the extent we are called upon to interpret statutory provisions, we will exercise unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). However, we accord deference to the district court’s determination of which, if any, documents or pleadings are to be filed under seal, and we will review that determination for an abuse of discretion. Cf. In re Tax Appeal of City of Wichita, 277 Kan. 487, 513, 86 P.3d 513 (2004) (district court has discretion over discovery matters and any decision made by the court in that regard will not be disturbed on appeal absent a clear abuse of that discretion).
COMPULSORY COUNTERCLAIM
The district court agreed with Davis’ argument that Tilzers’ malpractice claims in the Kansas action were barred by res judicata based upon Missouri’s compulsory counterclaim rule. That rule provides in relevant part:
“(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” 1 Mo. Court Rules § 55.32 (2008).
Citing to Jewish Hosp. of St. Louis v. Caertner, 655 S.W.2d 638, 641 (Mo. App. 1983), the Kansas court found:
“Under the plain meaning of Rule 55.32(a) and the interpretation given to that language by Missouri courts, a claim for damages based upon negligent performance of services arises from the same transaction as does a claim for non-payment for those same services. Thus, in an action by an attorney to recover fees from a client, a malpractice claim by that same client would be a compulsory counterclaim.”
Tilzers’ arguments had focused on whether Davis was an “opposing party” within the meaning of the rule, rather than challenging whether the malpractice claims arose from the same transaction that gave rise to the attorney’s fee lien. The district court acknowledged Tilzers’ argument that Gaertner is distinguishable because it was an independent collection action, where the malpractice claimant was the named defendant and the party seeking unpaid fees was the plaintiff, i.e., they were unquestionably “opposing parties.” Here, in contrast, Davis was not a party to the underlying action. Tilzers contended that the distinction was critical because a counterclaiming defendant in an independent collection action possesses procedural benefits which were unavailable to Tilzers in the motion proceeding, such as the right to conduct discoveiy and the right to a jury trial.
The district court rejected the argument, finding that in applying the counterclaim rule in Missouri, an attorney seeking to enforce an attorney’s fee hen in the underlying lawsuit is just as much an opposing party to the chent (or former client) as if the attorney had brought a separate lawsuit against the former chent to cohect the fees. For support under Missouri precedent, the district court cited to Hemme v. Bharti, 183 S.W.3d 593, 596 (Mo. 2006), for the proposition that
“[T]he counterclaim rule is not limited to claims by a defendant against a plaintiff — Rule 55.32(a) does not use those labels. So it is possible for co-parties in some circumstances to be ‘opposing parties,’ for example, when one co-party brings a claim for its own damages against another co-party. In that circumstance, they would be opposing parties — though both originally are co-defendantS' — -and, thus, would be subject to the compulsory counterclaim rule.”
Hemme involved a .personal injury action in which the plaintiff and defendant had been codefendants in a previous action. In the prior case, the personal injury defendant (then codefendant) had cross-claimed for indemnity and contribution, but the personal injury plaintiff (then codefendant) had not cross-claimed for the personal injury being claimed in the current personal injury lawsuit. The trial court found that the personal injury claim was compulsory in the prior action and therefore barred by res judicata in the current action. The Missouri Supreme Court reversed, holding that “[t]he compulsory counterclaim rule does not require a defendant against whom a cross-claim for indemnity, contribution or apportionment of fault is asserted to set forth her claim for injuries against her cross-claiming co-defendant in a response.” 183 S.W.3d at 595. In the dictum quoted by the Kansas court, Hemme was explaining that the compulsory counterclaim statute was not textually limited to plaintiffs and defendants, so that a possibility remained that coparties could be “opposing parties” under some circumstances. However, the opinion did not stretch so far as to suggest that a nonparty to an action could trigger the compulsory counterclaim statute by filing a motion to enforce a hen against the judgment rendered in that action.
Although the Kansas court recited that Missouri law would govern the claim preclusion issue, it relied heavily on an opinion from the New Mexico Court of Appeals, Computer One, Inc. v. Grisham & Lawless, P.A., 141 N.M. 869, 873, 161 P.3d 914 (Ct. App. 2007), rev’d 144 N.M. 424, 188 P.3d 1175 (2008), which involved similar facts and a similar compulsory counterclaim statute. There, the law firm representing Computer One in a contract action entered into a settlement agreement. Computer One refused to comply with the settlement, claiming the law firm did not have authority to enter into the agreement. The law firm withdrew and subsequentiy filed notice of a charging lien against the settlement proceeds. The other party to the contract dispute sought court enforcement of the settlement agreement. The trial court found that the law firm was authorized to enter into the agreement and ordered its enforcement.
Computer One objected to the attorney s fee charging Hen, arguing that the fees were unreasonable and excessive and renewing tíre claim that the firm never had authority to enter into the settlement agreement. The court dismissed Computer One’s objections as untimely filed and ordered disbursement of the setdement funds including payment of the attorney’s fee lien.
Over a year later, Computer One brought a legal malpractice claim against the firm, asserting negligence in handling their claims and setdement negotiations. The firm moved for summary judgment, arguing that the malpractice action was precluded because it was a compulsory counterclaim to the charging Hen. The firm also argued that the malpractice allegations were substantively the same as the defenses asserted against the charging lien, and therefore those allegations could not be relitigated. The New Mexico Court of Appeals affirmed the trial court’s granting of summary judgment for the law firm, reasoning that Computer One met the definition of an “opposing party” to the firm’s charging hen, even though the charging hen was filed in the underlying lawsuit. 144 N.M. at 428.
Subsequent to the district court’s memorandum decision in this case, the New Mexico Supreme Court reversed the Court of Appeals, finding that an “opposing party” under that state’s compulsory counterclaim law, Rule 1-013(A), “ ‘must be one who asserts a claim against the prospective counterclaimant in the first in stance.’ ” 144 N.M. at 430. Since the hen was asserted in the underlying litigation and not in a separate collection action naming Computer One as the defendant, the adversarial requirement had not been met. The Supreme Court further explained:
“The notion of fair notice implicit in Rule 1-013(A) follows one’s status as an opposing party. Nothing in that rule speaks about ‘degrees of hostility’ or a ‘sufficiently adversarial’ relationship, or other terms susceptible to a variety of interpretations, as a substitute for being an ‘opposing party.’ Nothing in Rule 1-013(A) would force a compulsory counterclaim on one who is not first a party.’ Given the grave consequences of Rule 1-013(A), we think that rule is better served by a sense of certainty and predictability implicit in the notion that one must first be a ‘party’ before one can be an ‘opposing party.’ . . . [A]n attorney does not transform his former client into either, merely by taking steps to secure attorney fees in the same underlying proceeding.
“On the other hand, if the Firm had wanted to file a separate suit for breach of contract against Computer One for its attorney fees, then . . . Computer One would have had to press its legal malpractice allegations simultaneously as a compulsory counterclaim. [Citation omitted.] The Firm chose not to do so.” Computer One, 144 N.M. at 431.
While the New Mexico precedent is not binding authority, its reasoning is persuasive, especially in light of Missouri case law establishing the methods by which attorneys may recover fees from their clients: (1) By proceeding against the client; (2) by proceeding against the defendant, either by motion in the original case or in an independent proceeding; or (3) by proceeding against the judgment itself. Nelson v. Massman Const. Co., 120 S.W.2d 77, 89 (Mo. App. 1938). By moving to enforce an attorney’s fee lien in the underlying action, Davis was proceeding against the judgment itself, not against the former client. Such an action does not transform the former client into an “opposing party” for purposes of the compulsory counterclaim rule. To invoke that rule, Davis had to file an independent action against Tilzers, i.e., had to become a “party” in the first instance.
In conclusion, the district court erred in finding that Missouri’s compulsory counterclaim rule required Tilzers to assert their legal malpractice claims as a response to Davis’ motion to enforce an attorney’s fee lien in the underlying Missouri lawsuit. Summary judgment on the issue of claim preclusion is reversed.
COLLATERAL ESTOPPEL
Alternatively, the Kansas court found that Tilzers were precluded from rehtigating the aggregated settlement issue in the present case under the doctrine of collateral estoppel. That doctrine operates to preclude the reconsideration of issues that were actually litigated in the prior proceeding, in contrast to claim preclusion which bars the assertion of claims which should have been brought in the prior proceeding. See Hollida v. Hollida, 190 S.W.3d 550, 555 (Mo. App. 2006). Thus, although we have found that Tilzers’ malpractice claim was not barred in the present case, we must also determine if Tilzers can assert their aggregate settlement issue as a basis for that claim in Kansas. Cf. Computer One, 144 N.M. at 434 (issues litigated in defending against attorney’s fee hen precluded in subsequent malpractice action).
The district court applied Missouri law to the collateral estoppel question. See Durfee v. Duke, 375 U.S. 106, 109, 11 L. Ed. 2d 186, 84 S. Ct. 242 (1963) (Full Faith and Credit Clause of United States Constitution requires State enforcing foreign judgment to apply rendering state’s law if more preclusive than that of enforcing state). The parties do not challenge that choice of law. The Missouri test has been stated as:
“In deciding whether collateral estoppel applies, the following four factors are considered: (1) is the issue in the present case identical to the issue decided in the prior adjudication; (2) was there a judgment on the merits in the prior adjudication; (3) is the party against whom collateral estoppel asserted the same party or in privity with a party in the prior adjudication; and (4) did the party against whom collateral estoppel is asserted have a full and fair opportunity to litigate the issue in the prior suit[P] The doctrine applies only to those issues that were necessarily and unambiguously decided. [Citation omitted.]” State ex rel. Johns v. Kays, 181 S.W.3d 565, 566 (Mo. 2006).
Tilzers concede that the first factor (identical issue) and the third factor (identical parties) were both met in this case. They challenge the applicability of collateral estoppel based upon the second and fourth factors, asserting that the Missouri court did not enter a judgment on the merits and that Tilzers did not have a full and fair opportunity to litigate the issue in that proceeding.
The second collateral estoppel factor was considered in Wilkes v. St. Paul Fire and Marine Ins. Co., 92 S.W.3d 116, 121 (Mo. App. 2002), which stated:
“A judgment on the merits is one rendered when it is determined which party is in the right after argument and investigation, as distinguished from a judgment rendered upon some preliminary or technical point, or by default, and without trial. [Citation omitted.] Where there is a question of whether a previous decision went to the merits of tire case, no preclusive effect is given to the earlier decision.”
Wilkes found that the requirement of a judgment on the merits of an issue was satisfied in a summary judgment where the court’s memorandum of decision reflected that it had considered and resolved the issue. 92 S.W.3d at 121.
Tilzers argue that Wilkes is distinguishable because the parties in that case had filed a petition and an answer and had engaged in discovery. In contrast, the Tilzers point out that they filed a counterclaim which was dismissed without a responsive pleading. They claim that “[tjhere was no argument or investigation, no judicial determination of which party was in the right.” We disagree.
In challenging the enforcement of the settlement agreement, Tilzers exphcitly argued that the Global Settlement was invalid because it was an aggregate settlement within the meaning of Rule 4-1.8(g). The Missouri court rejected that argument, finding that the settlement was not an aggregate settlement within the purview of Rule 4-1.8(g). With respect to the attorney’s fee hen motion, Tilzers’ counsel clearly advised Judge Wells that part of the defense to the motion was that Davis violated the disclosure requirements of Rule 4-1.8(g). Given that those disclosure requirements are only triggered by an aggregate settlement, Tilzers were simply advancing the same issue, i.e., whether the Global Settlement was an aggregate settlement. In short, the issue was clearly argued to the Missouri court.
Granted, Judge Wells did explicitly state that it was not the court’s intent to foreclose a subsequent malpractice action by ruling on the motion to enforce the attorney’s fee hen. However, the Missouri court clearly considered the issue of whether the Global Settlement was a Rule 4-1.8(g) aggregate settlement and resolved that issue adversely to the Tilzers, i.e., the court made a “judicial determination of which party was in the right” on that particular issue. Moreover, the Missouri court offered its reasoning for that decision. In other words, consistent with Wilkes, the Missouri court entered a judgment on the merits of the aggregate settlement issue.
To the extent Tilzers complain about the posture of the pleadings in the case at the time of judgment or the lack of an opportunity to fully investigate the issue prior to judgment, they are challenging whether the issue was ripe for a judgment on the merits. However, that query does not affect the second factor of whether the Missouri court did, in fact, enter a judgment on the merits.
In analyzing the fourth factor or element of collateral estoppel, i.e., whether Tilzers had a full and fair opportunity to litigate the issue in the Missouri lawsuit, the Kansas court noted that Missouri courts look at an additional four factors to resolve this step, to wit:
“(1) did the party against whom collateral estoppel is asserted have a strong incentive to litigate the prior adjudication; (2) does the second forum afford the party against whom collateral estoppel is asserted procedural opportunities not available in the first action; (3) is the prior judgment, upon which collateral estoppel is based, inconsistent with one or more prior judgments; and (4) was the forum in the first action substantially inconvenient to die party against whom collateral estoppel is asserted!?]” Wilkes, 92 S.W.3d at 122.
The third and fourth factors are not in play in this case. There was no prior inconsistent judgment, and the Missouri proceeding was not inconvenient for the parties.
On the first factor, the Kansas court rejected Tilzers’ argument that they did not have a strong incentive to litigate the issue in the Missouri lawsuit because that action was not the “ proper forum to fulfill their rights.’ ” The court opined that Tilzers “strongly wished to litigate the issue of the aggregate settlement,” but that they “just wished to litigate the issue in this court, not in Missouri.” That rationale appears to.overlook that the aggregate settlement issue was simply a component of Tilzers’ overarching claim that Davis had committed malpractice in representing them in the Missouri action. Tilzers “strongly wished” to fully litigate their entire claim of malpractice in a manner consistent with the procedural and substantive rights which would have been available to them in a separate malpractice lawsuit. Once Judge Wells clarified that he was going to rule on the motion to enforce the attorney’s fee hen without a full litigation of all of the malpractice allegations and without prejudice to further litigation on the question of malpractice, the Tilzers had scant incentive to partially litigate their claim on the aggregate settlement subissue.
The Kansas court acknowledged that Tilzers had “a stronger argument on the second factor”- — that the Kansas proceeding offered procedural opportunities not available in the Missouri action. Nevertheless, the district court determined that Tilzers did have some discovery opportunities in Missouri and that they had failed to identify any witness or document that was not available to them in Missouri. That rationale is unpersuasive.
The short time line in the motion proceedings made meaningful discovery impracticable. Moreover, it is counterintuitive to’declare that the unavailability of discovery is not prejudicial unless the complaining party can identify the witnesses and documents that would have been discovered. One of the purposes of the discovery process is to enable a party to learn of those witnesses and documents which will be useful in the litigation. On the other hand, Tilzers do not explain how having a jury as the factfinder or having discoveiy to obtain additional facts would have affected Judge Wells’ ruling on the legal effect of the Global Setdement. Nevertheless, there can be no question that the independent lawsuit in Kansas offered Tilzers procedural opportunities that were unavailable to them in the Missouri proceedings on Davis’ motion.
Additionally, the collateral estoppel doctrine in Missouri only applies “to those issues that were necessarily and unambiguously decided” in the prior adjudication. See Kays, 181 S.W.3d at 566. While Judge Wells unambiguously ruled that the Global Settlement was not invalid as an aggregate settlement, his ruling on the issue in the context; of the attorney fees motion is less straightforward. More importantly, however, a ruling on the aggregate settlement issue does not appear to have been necessary for Judge Wells’ decision on Davis’ attorney’s fee hen motion.
The Missouri court announced that its order enforcing the attorney’s fee Hen would not affect Tilzers’ malpractice claims against Davis. Apparently, the court viewed the task presented by the attorney’s fee hen motion to be a calculation of the amount of fees that Tilzers contracted to pay Davis and a determination of the reasonableness of those fees. In that event, the aggregate settlement issue was only relevant, if at all, to the question of whether Tilzers were entitled to an offset against Davis’ attorney’s fee hen based on malpractice. If the Missouri court was declining to rule on the malpractice claim, it had no reason to reach the subissue within that claim regarding any violations of the disclosure requirements of Rule 4-1.8(g). In other words, the ruling on the aggregate settlement issue was gratuitous and unnecessary to the decision rendered on the attorney’s fee hen.
Perhaps more fundamentally, Rule 4-1.8(g) is a rule of professional conduct defining an unethical conflict of interest for an attorney representing two or more clients in a particular action. It is not a statutory provision governing the validity of settlement agreements, i.e., rendering aggregate settlements unlawful as a matter of law. Indeed, if all of the plaintiffs in the Missouri lawsuit had been represented by separate counsel, Rule 4-1.8(g) would not have apphed, regardless of the terms of the settlement.
Likewise, compliance with the ethical rule is not necessarily a condition precedent to the enforcement of an attorney’s fee hen. The preamble to the Kansas Rules of Professional Conduct (KRPC) Rule 226 (2008 Kan. Ct. R. Annot. 391) explains the scope and function of the rules, clarifying that an ethical violation does not estabhsh a per se claim for malpractice:
“Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are involved by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule.” KRPC (Preamble-Scope) 2008 Kan. Ct. R. Annot. at 395.
Likewise, this court has opined:
“An attorney s violation of the ethics rules cannot create a cause of action to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action.” OMI Holdings, Inc. v. Howell, 260 Kan. 305, Syl. ¶ 1, 918 P.2d 1274 (1996).
Thus, even in the Kansas malpractice action, a finding that Davis violated Rule 4-1.8(g) is unnecessary. Obviously, the Missouri action was not an attorney disciplinary proceeding, and an interpretation of the applicability of the ethical rules was not required. Accordingly, the Kansas district court erred in applying the doctrine of collateral estoppel.
AGGREGATE SETTLEMENT
The Kansas district court’s decision included a denial of Tilzers’ motion for partial summary judgment on the question of whether Davis participated in making a Rule 4-1.8(g) aggregate settlement without making the requisite disclosures. The district court found that the Global Settlement was not an aggregate settlement because the information required to be disclosed under the rule was not and could not have been known. We disagree with the analysis. The lack of information would actually support a finding that it was an aggregate settlement.
To review, Missouri Rule 4-1.8(g) provides that an attorney representing two or more clients is not to participate in an aggregate settlement of the clients’ claims, unless each client has given a written, signed, and informed consent to the settlement. To obtain the consent, the attorney’s disclosure to the clients is to include the existence and nature of all of the claims and of the participation of each person in the settlement.
The parties acknowledge that neither Kansas nor Missouri has any law specifically defining an aggregate settlement. We have located no assistance from the law of any of our sister states. We note that Tilzers cite to Straubinger v. Schmitt, 348 N.J. Super. 494, 792 A.2d 481 (2002), and Davis cites to Arce v. Burrow, 958 S.W.2d 239, 245 (Tex. App. 1997), aff'd in part and rev'd in part, 997 S.W.2d 229 (Tex. 1999), but find neither case to be sufficiently on point to assist with interpreting whether the terms of the Global Settlement constituted an aggregate settlement.
Although not cited by either party, we note that the American Law Institute (ALI) has recently completed a 5-year project on the development of the Principles of the Law of Aggregate Litigation, issuing its Tentative Draft No. 1 on April 7, 2008. The ALI distinguishes between class action and non-class action aggregate setdements, defining the latter as follows:
“Definition of a Non-Class Aggregate Settlement
“(a) A non-class aggregate settlement is a settlement of the claims of two or more individual claimants in which the resolution of the claims is interdependent.
“(b) The resolution of claims in a non-class aggregate setdement is interdependent if:
(1) the defendant’s acceptance of the setdement is contingent upon the acceptance by a number or specified percentage of the claimants; or
(2) the value of each claim is not based solely on individual case-by-case facts and negotiations.” Principles of the Law of Aggregate Litigation § 3.16, p. 322.
Under diis definition, interdependency is the key. The commentary notes that the definition incorporates the two setdement characteristics that render claims interdependent: (1) collective conditionality and (2) collective allocation. The former suggests that a setdement conditioned on the acceptance of a specific percentage of claimants is an aggregate settlement. The latter establishes the existence of an aggregate settlement if the value of each claim is determined by any method other than on an individual basis. The ALI also recognizes the possibility of “multiclaimant nonaggregate settlements,” which it defines as a settlement where the defendant is “willing to negotiate an individual, fact-specific setdement for each claimant without setting a cap on the aggregate, damages or insisting that a set percentage of the potential claimants agree to the setdement.” Principles of the Law of Aggregate Litigation § 3.16, p. 325.
The ALI provides a helpful illustration:
“An attorney represents 100 plaintiffs complaining of various injuries caused by an allegedly defective drug manufactured by Defendant. During settlement ne gotíatíons the attorneys for the plaintiffs and Defendant individually assess each claim with a goal that the total setdement would equal $1 million. Defendant agrees to the setdement only if at least 95 percent of all of the claimants agree. The setdement is an aggregate one under subsection (b)(1), even though the amounts were individually negotiated, because Defendant has conditioned its acceptance of the settlement on a set percentage of claimants agreeing to the settlement and because Defendant placed a cap on the collective settlement.” Principles of the Law of Aggregate Litigation § 3.16, pp. 325-26.
Similarly, Tilzers point us to the ABA definition, which states that “an aggregate settlement occurs ‘when two or more clients who are represented by the same lawyer together resolve their claims or defenses or pleas.’ ” ABA/BNA Lawyers’ Manual on Professional Conduct, p. 51:377 (2006). The ABA Manual notes that “a settlement of a group of related claims is an aggregate settlement unless (1) a particular amount is negotiated on behalf of each individual plaintiff, and (2) each plaintiff is free to accept or reject the offer without affecting anyone else’s setdement.” ABA/BNA, p. 51:378.
Under the ALI definition, the Global Setdement had both characteristics of interdependency which define an aggregate settiement. There was collective conditionality because the pharmaceutical companies were granted the right to opt out of the settlement if fewer than all of the covered plaintiffs accepted the proposed setdement. Although Judge Wells attempted to circumvent the conditional allocation characteristic by appointing special masters to individually assess each claim, the Global Settlement contained a maximum amount that the defendants would pay into the setdement fund and provided for an across-the-board minimum payment to all opt-in claimants. In other words, each claimant did not receive individualized, fact-specific damages, but rather each claimant received an individualized, fact-specific allocation of a proportion of the capped settlement fund, subject to a minimum award for every participant.
Likewise, the Global Settlement runs afoul of the ABA guidelines. A particular amount of damages was not negotiated on behalf of each individual plaintiff. Rather, a percentage of the total setdement fund was established for each individual plaintiff. Thus, the amount awarded to one plaintiff directly affected the amount of the other plaintiffs’ awards. More importantly, each plaintiff was not free to accept or reject the special masters’ proffered award, as poignantly illustrated by Judge Wells’ order forcing Tilzers to accept their calculated share of the pot.
Therefore, notwithstanding the concerted effort of Judge Wells and the special masters to devise a mechanism to avoid labeling the Global Settlement as an aggregate settlement, the defining characteristic of interdependency remained intact. The terms of the Global Settlement contained all of the important features of an aggregate settlement.
The Kansas district court was seduced by Judge Wells’ opinion that the Global Settlement could not be an aggregate settlement because the information that Rule 4-1.8(g) required to be disclosed to obtain an informed consent was not available to Davis. However, that dearth of information was the direct result of the interdependent characteristics of the Global Settlement, i.e., the information could not be ascertained because the arrangement was an aggregate settlement. Rather than estabhshing a non-aggregate settlement, the unavailability of the information required to be disclosed by Rule 4-1.8(g) simply corroborated that it was an aggregate settlement and rendered it impossible for Davis to obtain an informed consent under the rule. The district court’s ruling to the contraiy was erroneous.
SEALED DOCUMENTS
Finally, Tilzers challenge the district court’s granting of the intervening drug companies’ motion to maintain the confidentiality of the settlement agreement reached in the Missouri action. Tilzers base their complaint upon the public’s interest in knowing the details of the settlement agreement.
Tilzers do not dispute that they entered into and personally signed a confidentiality agreement on at least two of the documents involved in the Missouri settlement and that the Missouri court memorialized the confidentiality agreement by entering appropriate protective orders in that proceeding. Accordingly, they acknowledge that the intervenors have a contractual right to have the settlement terms remain confidential. Nevertheless, they suggest that private contract rights must always give way to the public interest, and they contend that the intervenors failed to show any public interest in maintaining the confidentiality of the settlement agreement.
First, we ascribe more significance to an entity’s rights under a court-approved settlement agreement than Tilzers would suggest. In deciding whether information should be sealed, a court should consider the interests of the party seeking confidentiality, as well as the public’s interest. Cf. In re Tax Appeal of City of Wichita, 277 Kan. 487, 514, 86 P.3d 513 (2004) (in deciding whether to permit discovery, court should balance the interest in obtaining the information against the resisting party’s interest, as well as the public interest in maintaining confidentiality of the material). Obviously, the intervenors had an interest in shielding all of the terms of their current settlement offer from future plaintiffs.
In addition, the law and policy of this State is to favor out-of-court settlements of disputed claims. See, e.g., Bright v. LSI Corp., 254 Kan. 853, 860, 869 P.2d 686 (1994) (recognizing a strong public policy supporting settlement); Kennedy v. City of Sawyer, 228 Kan. 439, 461, 618 P.2d 788 (1980) (“Settlements between injured parties and tortfeasors are favored in the law.”). As the intervenors and Davis point out, it is unlikely that a settlement would have been reached in this case without the confidentiality provision. Certainly, settling over 300 individual lawsuits without trial is in the public interest.
In contrast, Tilzers do not contradict the intervenors’ argument to the district court that publicizing the settlement terms would not advance Tilzers’ claims of malpractice in the Kansas case and maintaining the confidentiality of the settlement terms would not impede the pursuit of the legal malpractice action. Instead, Tilzers simply declare that the impact upon them of the partial sealing of documents “has no significance.” We take that as a concession that the court order sealing certain documents did not prejudice Tilzers in the prosecution of their legal malpractice action.
The overarching theme of Tilzers’ impassioned argument on this issue appears to be that the public has a right to know that the pharmaceutical companies orchestrated an illegal settlement of a highly publicized and emotional case. Tilzers are in the wrong venue to make that argument. This is a legal malpractice action, where the most that will be established is that Tilzers’ own former attorneys breached a legal duty by laboring under a conflict of interest among several clients involved in a single settlement agreement. The legality of the pharmaceutical companies’ actions in proposing the settlement will not be implicated in any manner. Judge Wells’ ruling that the settlement agreement was legal and valid will not be overturned. In short, Tilzers should have attempted to shine the light of public scrutiny upon the Missouri proceedings, rather than attempt to circumvent the Missouri court’s protective orders in this Kansas proceeding.
In conclusion, we find that the Kansas district court’s order sealing those documents that contained confidential information about the Missouri settlement agreement was not an abuse of discretion. However, the district court’s granting of Davis’ summary judgment motion is reversed, and the matter is remanded for further proceedings.
Affirmed in part, reversed in part, and remanded for further proceedings.
David J. King, District Judge, assigned.
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The opinion of the court was delivered by
Luckert, J.:
James M. Thomas was sentenced to life imprisonment under the provisions of K.S.A. 2006 Supp. 21-4643 after he pled no contest to two counts of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 21-3504(a)(3). On appeal, Thomas seeks to have his sentence vacated. We reject his request and affirm his sentence, concluding (1) his argument that the sentence constitutes cruel or unusual punishment cannot be considered because the issue was not argued before the district court and (2) the district court did not abuse its discretion in denying Thomas’ motion for departure.
Factual and Procedural Background
According to the factual basis established at the time of Thomas’ plea, Thomas admitted to detectives that he had lewdly fondled or touched his granddaughter, who was 4 or 5 years old at the time, approximately 150 times. He was charged with only two counts, however. Count I alleged an offense occurring on or between November 1, 2005, and June 30, 2006. At the time of that offense, aggravated indecent liberties with a child was a severity level 3 felony. K.S.A. 21-3504(a)(3)(A) (Furse 1995). Count II alleged an offense occurring on or between July 1, 2006, and April 5, 2007. Because of statutory amendments effective July 1, 2006, the offense in Count II was an off-grid felony. See K.S.A. 2006 Supp. 21-3504(a)(3)(A).
Under the plea agreement, Thomas was free to seek a sentencing departure, which he did by filing a motion requesting a downward durational or dispositional departure. In support of the motion, Thomas stated he was 59 years old, he had no prior felony convictions, the victim and her family were in favor of probation as long as he received sex offender treatment, he had been evaluated and was eligible for sex offender treatment that was readily available in the community, treatment would promote offender reformation and lessen the chance of recidivism, he was not a violent offender, and he was at very low risk to reoffend. In concluding the motion for departure, Thomas stated that given his age “he would not live long enough to reach conditional release in 25 years [and that the sentence] would amount to Life without parole. The defense would submit that would amount to cruel and unusual punishment as applied in this case.”
Despite mentioning this constitutional objection in his written motion, Thomas did not mention the issue of cruel or unusual punishment or present evidence related to that issue at the sentencing hearing. Nor did he assert the sentence was disproportionate to the wrong or to other sentences under the Kansas Sentencing Guidelines Act (KSGA), the primary arguments he advances on appeal.
The district court denied the motion for departure, focusing upon Thomas’ admission that he had committed acts against his granddaughter approximately 150 times. The district judge concluded: “I do not believe that justice in this case allows for a departure.” The district court noted some of the individual grounds suggested as a justification for departure, but not all, and did not mention or make findings or conclusions regarding whether a life sentence was a cruel or unusual punishment. Overall, the court’s comments indicated an implicit conclusion that none of the reasons asserted by Thomas were substantial and compelling reasons to depart from the mandatory minimum sentence.
Pursuant to K.S.A. 2005 Supp. 21-4704(a), the court sentenced Thomas to 59 months’ imprisonment for Count I, which was the middle number in the grid box applicable at the time of the first offense. For Count II, pursuant to K.S.A. 2006 Supp. 21-4643(a)(1)(C), the court sentenced Thomas to a mandatory life sentence without the possibility of parole for 25 years. And pursuant to K.S.A. 2006 Supp. 22-3717(d)(1)(B), the court ordered postrelease supervision on Count II for life if Thomas would be paroled.
Thomas raises a timely appeal of his life sentence. This court’s jurisdiction is under K.S.A. 22-3601(b)(1) (off-grid crime; fife sentence).
Cruel or Unusual Punishment
Thomas argues his life sentence violates the right against cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights. In addition, he briefly refers to the Eighth Amendment to the United States Constitution.
A three-prong test applies to considerations of whether a sentence is a cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
Thomas did not address these factors before the district court, did not present evidence, and did not ask the court to make find ings of fact or conclusions of law on the issue. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d. 1279 (2006) (litigant must object to inadequate findings of fact and conclusions of law before the trial court to preserve the issue for appeal); Supreme Court Rule 165 (2008 Kan. Ct. R. Annot. 235). Moreover, although Thomas mentioned that a life, sentence would be a cruel or unusual punishment in his motion, on appeal he advances a different theory regarding how the sentence violates § 9 of the Kansas Constitution Bill of Rights. In his motion, Thomas based the argument on his age and the likelihood he would not live long enough to be paroled.’ On appeal he argues the sentence is disproportionate to the wrong and to other sentences provided for under the KSGA.
Conceding that he did not make the argument before the district court and recognizing the general rulé that constitutional issues cannot be asserted for the first time on appeal, State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008), Thomas urges application of one of the exceptions that recognize circumstances when an issue can be advanced for the first time on appeal. The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. Thomas argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right.
These same arguments were presented by another defendant and rejected by this court in Ortega-Cadelan, 287 Kan. at 161. Ortega-Cadelan pled guilty to one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with child under 14 years of age). He was sentenced under the same provision as applied to Thomas in Count II, K.S.A. 2006 Supp. 21-4643(a)(1), and received a mandatory life sentence without the possibility of parole for 25 years and postrelease supervision for fife. Ortega-Cadelan appealed his sentence and argued for the first time on appeal that his sentence constituted cruel or unusual punishment.
We declined to consider Ortega-Cadelan’s argument that the sentence offended the constitutional prohibition against cruel or unusual punishment. Citing the three-prong Freeman test, we noted the factors include both factual and legal questions. Despite the defendant’s attempt to focus on those factors that raised legal questions, we determined the factual aspects of the test could not be ignored because no single consideration controls the issue. As a result, we concluded that the factual aspects of the test must be considered by the district court before the question could be reviewed on appeal and so the issue was not properly before the court. 287 Kan. at 161.
At oral argument and in a letter of additional authority submitted under Supreme Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47), Thomas argued that unlike the situation in Ortega-Cadelan, the record in this case is sufficient for this court to reach the factual issues. This argument ignores the role of this court: Appellate courts do not make factual findings but review those made by district courts. See In re Adoption of A.A.T., 287 Kan. 590, 196 P.3d 1180 (2008) (an appellate court does not reweigh evidence, substitute its evaluation of evidence for district court’s, or pass upon credibility of witnesses). Here, no factual findings were made upon which this court can base an analysis of whether the sentence is cruel or unusual.
Thomas’ argument that his fife sentence pursuant to K.S.A. 2006 Supp. 21-4643(a)(1) is a cruel or unusual punishment, which was mentioned but not argued before the district court, cannot be presented for the first time on appeal.
Downward Departure Motion
Next, Thomas argues the district court erred by denying his request for a downward durational or dispositional departure sentence.
Under the statute in effect at the time of the offense charged in Count II (K.S.A. 2006 Supp. 21-4643[d]), a first-time offender who is age 18 years or older and is convicted of committing aggravated indecent liberties with a child under the age of 14 shall be sentenced to a mandatory lifetime sentence with a minimum of not less than 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” If the sentencing judge departs from the mandatory minimum term, the departure sentence “shall be the sentence pursuant to the sentencing guidelines act, . . . and no sentence of a mandatory minimum term of imprisonment shall be imposed.” K.S.A. 2006 Supp. 21-4643(d).
The statute specifies a nonexclusive list of mitigating factors the judge may consider in determining whether substantial and compelling reasons for departure exist: (1) the defendant has no significant criminal history; (2) the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) the victim was an accomplice, and the defendant’s participation was relatively minor; (4) the defendant acted under extreme distress or substantial domination of another person; (5) the defendant’s capacity to appreciate the criminality of his or her conduct or conform such conduct to the requirements of the law was substantially impaired; and (6) the defendant’s age at the time of the crime. K.S.A. 2006 Supp. 21-4643(d)(1)-(6).
In his departure motion, Thomas asked the district court to impose either probation or a KSGA sentence under the grid block corresponding to the severity level of his crime and his criminal history score of “I”. In support of his request, Thomas cited several mitigators, two of which parallel the statutory list, i.e., he had no prior felony convictions and he was 59 years of age. The other factors cited — such as the sex evaluator’s conclusion that Thomas was eligible for sex offender treatment, treatment was available in the community, the lack of violence, and the victim’s preference that Thomas not be incarcerated — did not parallel the statutory factors.
At the sentencing hearing, the district court recognized that Thomas had a criminal history score of “I” and had entered pleas of no contest “in order to avoid putting the victim through a trial.” The judge told Thomas that “in thinking about this case I’ve struggled with it about what is justice.” The judge continued: “[T]he facts have been presented of 150 times, now . . . maybe it was less, but it’s obviously in your mind you committed these acts against your granddaughter so many times that . . . you lost count. ... It reveals to me a depravity that’s beyond me.” The district court found that a departure sentence would be “insufficient” in this case, despite the fact that Thomas had presented some grounds for departure. In other words, the court implicitly found that none of the reasons asserted by Thomas were substantial and compelling reasons to depart from the mandatory minimum sentence.
In attacking these rulings on appeal, Thomas presents several threshold legal arguments, as does the State in response. These same arguments were considered and rejected in Ortega-Cadelan.
First, this court in Ortega-Cadelan rejected the State’s argument that this court did not have jurisdiction because the defendant received a presumptive sentence. We held the defendant’s life “sentence does not meet the K.S.A. 21-4703 definition of presumptive sentence,’ as his sentence was not issued pursuant to a number in a grid block” but was an off grid crime that is subject to appellate review under the KSGA. 287 Kan. at 163; see K.S.A. 2006 Supp. 21-4643(a)(1)(C).
Next, we rejected Ortega-Cadelan’s argument, which is also made by Thomas, that each mitigating circumstance listed in K.S.A. 2006 Supp. 21-4643(d) constitutes a per se substantial and compelling reason for a departure sentence. We observed the statutory language regarding the consideration of mitigating circumstances is “clear and unambiguous, stating the judge shall impose a life sentence ‘unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.’ ” Ortega-Cadelan, 287 Kan. at 164 (quoting K.S.A. 2006 Supp. 21-4643[d]). We concluded this language does not make “mitigating circumstances” synonymous with “substantial and compelling reasons.” Rather, a two-step procedure applies: First, the judge reviews mitigating circumstances and, second, the judge determines if there are substantial and compelling reasons for a departure. 287 Kan. at 164.
On appellate review of this process, we apply a broad abuse of discretion standard because this issue involves the district court’s consideration and weighing of mitigating circumstances. Under this standard “ ‘[judicial discretion is abused when no reasonable person would take the view adopted by the district judge.’ ” Ortega-Cadelan, 287 Kan. at 165 (quoting State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 [2005]); see State v. Jones, 283 Kan. 186, 215-16, 151 P.3d 22 (2007) (same broad abuse of discretion standard applies to appellate review of weighing of aggravating and mitigating circumstances before imposing hard 50 sentence).
A review of the sentencing transcript convinces us that the district court considered all of Thomas’ arguments, acknowledged the mitigating circumstances asserted by Thomas, and explained why it chose to reject the request for a downward durational or dispositional departure. Reasonable people could agree with the district court’s assessment of whether the mitigating circumstances were substantial and compelling.
The district court did not abuse its discretion by denying Thomas’ motion for a downward durational or dispositional departure sentence under K.S.A. 2006 Supp. 21-4643(d).
Affirmed.
McFarland, C.J., not participating.
Standridge, J., assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Andrew M. Piekalkiewicz, of Lawrence, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against the respondent alleged a violation of Kansas Rule of Professional Conduct (KRPC) 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence), KRPC 1.4 (2008 Kan. Ct. R. Annot. 432) (communication), KRPC 8.3 (2008 Kan. Ct. R. Annot. 585) (reporting professional misconduct), and KRPC 8.4(c) (2008 Kan. Ct. R. Annot. 586) (conduct involving dishonesty, fraud, deceit, or misrepresentation), as well as a violation of Supreme Court Rule 207 (2008 Kan. Ct. R. Annot. 295) (duties of the bar). A hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent appeared in person and represented himself pro se. Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Andrew M. Piekalkiewicz (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 18427. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Lawrence, Kansas .... The Kansas Supreme Court admitted the Respondent to the practice of law in the State of Kansas on October 11, 2005. In addition, the Respondent has been admitted to practice law in the States of Missouri and Texas.
“DA10215 — Reciprocal Case from Texas
“2. On April 17, 2007, following a hearing, District 4C06 Grievance Committee in Texas entered a judgment of disbarment against the Respondent.
“3. Later, in June, 2007, the Respondent appealed from the judgment of disbarment. Following the fifing of his appeal, the Respondent and the Appellee Commission for Lawyer Discipline requested that the case be reversed and remanded to District 4C06 Grievance Committee. The Board of Disciplinary Appeals granted the joint motion to reverse and remand to District 4C06 Grievance Committee.
“4. On December 26, 2007, District 4C06 Grievance Committee entered an Agreed Judgment of Active Suspension. District 4C06 Grievance Committee found the following facts:
‘H0010621722 (Kindred)
‘3. On January 14, 2004, Tina D. Kindred hired Respondent to represent her in a personal injury suit. Kindred signed a Power of Attorney giving Respondent the authority to enter into settlement negotiations on her behalf.
‘4. Between January 2004 and April 2005, Kindred attempted to contact Respondent regarding the status of her case. During this period of time, Respondent failed to return Kindred’s calls and failed to provide Kindred with any information regarding the status of her case.
‘5. Respondent performed little or no work on Kindred’s behalf.
'6. On January 26, 2006, Respondent received notice from the State Bar of Texas of Kindred’s pending grievance. Said notice informed Respondent that he must file a written response to the allegations of professional misconduct within thirty (30) days of receipt. Respondent failed to respond.
‘H0110521386 (O’Bryant)
‘7. On February 14, 2001, Rachel B. O’Biyant hired Respondent to represent him [sic] in a personal injury case.
‘8. After O’Bryant hired Respondent, he [sic] attempted to contact Respondent to find out about the progress of his [sic] case. Respondent failed to return O’Bryant’s calls and failed to provide O’Biyant with any information regarding the status of his [sic] case.
‘9. Respondent failed to perform any meaningful work on O’Bryant’s case.
TO. O’Bryant contacted the Client-Attorney Assistance Program (CAAP) regarding Respondent’s representation of O’Bryant. On October 11, 2005, CAAP sent a letter to O’Biyant stating that CAAP had mailed a letter to Respondent on August 12, 2005, but Respondent failed to respond to CAAP’s inquiry. CAAP advised O’Bryant that she might wish to proceed by filing a grievance with the State Bar of Texas.
Tl. The Chief Disciplinary Counsel has incurred reasonable attorneys’ fees and direct expenses associated with this Disciplinary Proceeding in the amount of $1,524.62.’
“5. As a result of those facts, District 4C06 Grievance Committee made the following conclusions of law:
‘H0010621722 (Kindred)
‘Rule 1.01(b)(1) (in representing client, lawyer shall not neglect legal matter entrusted to lawyer);
‘Rule 1.03(a) (lawyer shall keep client reasonably informed about status of matter and promptly comply with reasonable requests for information);
‘Rule 8.04(a)(8) (lawyer shall not fail to timely furnish to Chief Disciplinary Counsel’s office response or other information as required by Texas Rules of Disciplinary Procedure);
‘H0110521386 (O’Biyant)
‘Rule 1.01(b)(1) (in representing client, lawyer shall not neglect legal matter entrusted to lawyer); and
‘Rule 1.03(a) (lawyer shall keep client reasonably informed about status of matter and promptly comply with reasonable requests for information).
“6. Based upon the findings of fact and conclusions of law, District 4C06 Grievance Committee entered an order suspending the Respondent’s license to practice law in the State of Texas for a period of 36 months, beginning April 17, 2007, and ending April 15,2010. District 4C06 Grievance Committee also ordered the Respondent to pay restitution to Ms. O’Bryant in the amount of $2,500 and attorneys’ fees and direct expenses in the amount of $1,524.62.
“7. According to the Respondent, he paid the restitution, the attorneys’ fees, and direct expenses.
“8. Following the Respondent’s suspension from the practice of law in the State ofTexas, the Respondent failed to properly notify the disciplinary authorities in Kansas and Missouri.
“DA10303 — Latimer Complaint [Kansas]
“9. In January, 2004, while driving a pick-up truck, J. Michael Latimer was struck by a larger truck owned by Pacific Overland Transportation Group. James Latimer, J. Michael Latimer’s father, retained the Respondent to represent their son in a suit against Pacific Overland Transportation Group.
“10. After retaining the Respondent, James Latimer and Mary Jane Latimer, J. Michael Latimer’s mother, attempted to contact the Respondent regarding the status of the case. The Respondent failed to keep the Latimers informed regarding the status of the case.
“11. On March 1,2005, Great West Casualty Company issued a checkpayable to James Michael Latimer, James Latimer, and the Law Office of Andrew Piekalkiewicz in the amount of $5,750.00. Pursuant to the Power of Attorney, the Respondent endorsed the check and deposited the funds into his account.
"12. The Respondent failed to pay the outstanding medical expenses and the Respondent failed to distribute the proceeds of the settlement to the Latimers. The Respondent converted the settlement proceeds to his own use.
“13. At the hearing on this matter, the Respondent testified that he is an alcoholic and has, for many years, struggled to achieve sobriety. The Respondent testified that he has no recollection of representing the Latimers or what occurred with the settlement check.
“14. The Respondent testified that, at the time of the hearing, he had been sober for 11 days.
“CONCLUSIONS OF LAW
“1. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ [Footnote 1: The Texas Disciplinary Rules of Professional Conduct vary from the Kansas Rules of Professional Conduct. However, the underlying conduct from the Texas case amounts to a violation of KRPC 1.3 and KRPC 1.4.] Based upon the evidence presented at the hearing, . . . and pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that regarding DA10215, the Respondent engaged in misconduct and violated KRPC 1.3 and KRPC 1.4.
“2. Additionally, based upon the findings of fact, the Hearing Panel concludes as a matter of law that regarding DA10215, the Respondent violated KRPC 8.3 and regarding DA10303, the Respondent violated KRPC 1.4, KRPC 1.15, and KRPC 8.4(c):
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Ms. Kindred and Ms. O’Bryant when he failed to timely prosecute their cases. Because the Respondent failed to act with reasonable diligence and promptness in representing Ms. Kindred and Ms. O’Biyant, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to adequately communicate with Ms. Kindred, Ms. O’Bryant, and the Latimers. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. Lawyers must keep the property of their clients safe. See KRPC 1.15. In this case, the Respondent failed to properly safeguard his client’s property when he failed to properly distribute it and when he converted it to his own use. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 1.15.
“6.. KRPC 8.3(a) provides that ‘[a] lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.’ In this case, the Respondent entered into a stipulation regarding the facts, the law, and the disposition of Ms. Kindred’s complaint and Ms. O’Biyant’s complaint in Texas. Despite the Respondent’s stipulation, the Respondent failed to notify the other states where he held licenses. Because the Respondent failed to properly notify the Kansas and Missouri disciplinary authorities, the Hearing Panel concludes that the Respondent violated KRPC 8.3(a).
“7. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty and fraud when he conr verted the Latimers’ settlement proceeds to his own use. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“AMERICAN BAR ASSOCIATION
STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his .duty to his clients to provide diligent representation and adequate communication. Further, the Respondent violated his duty to his client to properly safeguard their property. Finally, the Respondent violated his duty to the legal profession to cooperate in the disciplinary proceedings in Texas.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his clients and to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
"Prior Disciplinary Offenses. The Respondent is currently under suspension in Texas for the misconduct related to Ms. Kindred and Ms. O’Bryant. Additionally, previously, the Respondent was privately reprimanded for failing to rectify a conflict of interest by the State of Texas.
“Dishonest or Selfish Motive. The Respondent’s conduct in converting the Latimers’ settlement proceeds to his own use amounts to dishonest conduct. Engaging in dishonest and selfish conduct is an aggravating factor.
“A Pattern of Misconduct. Three separate clients were injured by the Respondent’s misconduct. The misconduct regarding each of the three clients is similar in nature. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 8.3, and KRPC 8.4. As such, the Respondent committed multiple offenses. .
"Indifference to Making Restitution. To date, the Respondent has made no effort to make restitution to the Latimers for converting the settlement proceeds or for determining whether Universal MRI needs to be paid from the settlement proceeds.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent is an alcoholic and has struggled with this disease for many years. The Respondent testified that during the time that he represented the Latimers, he was ‘soaked in alcohol’ and has no memory of representing them. The Respondent’s alcoholism is a mitigating factor.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fuEy cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the foEowing Standards:
‘Suspension is generaEy appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.’ Standard 4.12.
‘Suspension is generaEy appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42.
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be suspended for an indefinite period of time. The Respondent acknowledged that he is not currently fit to practice law, but requested a definite suspension. SpecificaEy, the Respondent requested that the Hearing Panel recommend that the suspension in Kansas paraEel his suspension in Texas and that foEowing his suspension in Kansas, that he be placed on supervised probation.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law in the State of Kansas.
“Within 30 days of the date of the report, the Respondent shaE determine whether the Latimers have an unpaid balance with Universal MRI that should be paid from the settlement proceeds. If the Respondent determines that the Latimers have an unpaid balance with Universal MRI that should be paid from the settlement proceeds, the Respondent shaE, within 30 days of the date of this report, appropriately pay Universal MRI. The Respondent shaE, within 30 days of the date of this report, pay the Latimers their share of the settlement proceeds ($3,000.00).
“The Hearing Panel further recommends that the Respondent be eligible to apply for reinstatement on April 15, 2010. The Hearing Panel recommends that before the Respondent is reinstated to the practice of law in the State of Kansas that he be required to undergo a reinstatement hearing pursuant Kan. Sup. Ct. R. 219.
“At the reinstatement hearing, the Respondent should be required to show that he has had a sustained period of sobriety, that he has regularly attended AA, and that he is currently fit to practice law. Further, the Respondent should be required to show that he has paid or otherwise resolved the issue with Universal MRI and that he has paid the amount owing to the Latimers.
“Costs are assessed against the Respondent in an amount to be certified by tire Office of the Disciplinary Administrator.”
The respondent elected not to file any exceptions to the final hearing report of the panel. Thus, the respondent admits the allegations of the complaint. Supreme Court Rule 212(d) (2008 Kan. Ct. R. Annot. 327). This court also finds that the allegations in the disciplinary complaint against the respondent have been established by clear and convincing evidence, and the court adopts the findings of the hearing panel.
The Disciplinary Administrator recommended to the panel that the respondent be indefinitely suspended from the practice of law in Kansas; the respondent requested that his suspension, subject to conditions outlined by the hearing panel, run concurrently with the suspension of his Texas license, which will conclude on April 15, 2010.
Although we generally give some deference to the hearing panel’s finding of fact and conclusions of law, see In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003), a panel’s recommendation as to the appropriate discipline is advisory only and shall not prevent the court from imposing discipline greater or lesser than that recommended by the panel or the Disciplinary Administrator. Rule 212(f); see In re Pittman, 285 Kan. 1133, 1141, 179 P.3d 404 (2008). Based upon this court’s consideration of the entire record, including the findings of fact and conclusions of law, the arguments of counsel before this court, and the respondent’s statements, we conclude that an indefinite suspension from the practice of law in Kansas is the more appropriate discipline.
In both Texas and Kansas, the respondent has converted client funds to his own use. While we acknowledge that the respondent’s alcohol abuse greatly contributed to the ethical violations charged, we may not ignore the effect of these violations upon the respondent’s clients and upon the profession. Very little evidence was presented by the respondent regarding his treatment for his alcohol problems. We are keenly aware that, in addition to our responsibility to the respondent and the profession, our overriding concern is the protection of the public. Under these circumstances, we are convinced that an indefinite suspension accompanied by the required reinstatement hearing adequately protects the public and the profession. Finally, we have reviewed the conditions imposed by the panel upon the respondent; we agree that such conditions should be fulfilled by the respondent prior to his reinstatement, and we adopt those conditions in our holding.
It Is Therefore Ordered that the respondent, Andrew M. Piekalkiewicz, be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 266).
It Is Further Ordered that the respondent shall comply with the provisions of Supreme Court Rule 218 (2008 Kan. Ct. R. An-not. 350) and, if the respondent seeks reinstatement, he shall comply in full particulars with the conditions set forth in this opinion— that he has had a sustained period of sobriety, that he has regularly attended AA, that he is currently fit to practice law, that he has paid or otherwise resolved the issue with Universal MRI, and that he has paid the amount owing to the Larimers — and with Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by
Rosen, J.:
Brandon Antoine McReynolds, the appellant, seeks review of his convictions and sentence for first-degree murder, aggravated robbeiy, and conspiracy to commit aggravated robbery.
On the night of August 12, 2005, Kansas City, Kansas, police responded to a report of a person lying on the ground next to a car. When the police arrived, they found a young man, Zhihai Cui, lying on the street. Cui was a delivery driver for a Chinese restaurant. The engine of his car was running and no other people were in sight. Money, food containers, and plastic bags were on the ground near him. The police called for medical personnel, who determined that he had stab wounds to his abdomen and chest. They declared Cui dead.
Detectives spoke with Tamara Ford, the appellant’s 15-year-old cousin, who lived near the location where Cui was found. They also conducted a consensual search of Ford’s house, where they found two knives, blood in the bathroom, and receipts from a Chinese restaurant. At the detective bureau, Ford provided the names of four juveniles whom she connected to the death: Cortez Ennis; Brandon Johnson; the 17-year-old appellant Brandon McReynolds; and his brother, Benjamin McReynolds.
Around 4 a.m. on August 13, detectives went to the home of Rhonda McReynolds, the mother of the McReynolds brothers. There they found Cortez Ennis asleep in a chair in the living room. In his pockets, they found restaurant receipts and money with blood on it. In a bedroom of the house, they found the appellant and his brother sleeping and took them into custody. The appellant was wearing a T-shirt and boxer shorts when he left the house, and there appeared to be blood on his shirt. The appellant made an audiotaped statement that morning and another statement 3 days later. In his statements, the appellant admitted participating in an attack on Cui but denied making any hfe-threatening blows.
Following an interview with Cortez Ennis, detectives located a knife they believed to be the murder weapon under a bush near the murder scene. An examination of Tamara Ford’s cell phone and an inquiry at Cui’s place of employment showed that a caller using Ford’s phone had placed an order on the evening of August 12.
The State filed an information and an amended information charging the appellant with one count of first-degree murder, K.S.A. 21-3401; one count of aggravated robbery, K.S.A. 21-3427; and one count of conspiracy to commit aggravated robbery, K.S.A. 21-3302.
Following a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), the district court granted the State’s motion to admit the appellant’s audiotaped statements made to detectives on the morning following the murder and 3 days later. In these statements, the appellant said that the four male youths called in an order for food delivery with the intention of robbing the delivery man, but when the driver arrived, the youths elected not to approach him. After one of the youths chastised the others, a second call was placed to the restaurant, and, when the driver arrived a second time, all four of the youths rushed at him. The appellant stated that he hit Cui with his fists, and the other youths attacked Cui with a stick, a crutch, and a knife. The youths made off with somewhat over 50 dollars, which they spent on drugs and alcohol and attending a party. The first statement concluded at 9:28 a.m., August 13, 2005, and the second statement concluded at 11:21 a.m., August 16, 2005.
Tamara Ford, testified at the trial that on the evening of the crimes the appellant, his brother, Cortez Ennis, and Brandon Johnson were visiting the house where Ford lived with her mother. Cortez Ennis borrowed Ford’s cell phone and made a call. The five youths then went out onto the front porch. A car pulled up and, when the driver got out, the four male youths rushed at him and hit him until he fell. The four male youths returned to the house, and Ford told them to leave. Ford overheard the appellant say, “I fucked up,” as he left her house.
The appellant denied any involvement in Cui’s death. He testified at trial that he played football the day of the murder and got blood on his shirt from another player. Afterwards he went to fixe home of his aunt, Tabitha McReynolds, visited a friend’s house, and then purchased PCP and Ecstacy at a local drug house. He later returned to his aunt’s house, where he saw Ennis and Brandon Johnson chasing a man down the street. He thereupon went into his aunt’s house because he was scared. Afterwards he smoked additional PCP, attended a party, and then returned to his mother’s house.
During deliberations, the jury sent a note to the court requesting clarification:
“Even though we don’t think Brandon McReynolds committed the murder, do we have to agree to find him guilty when we do agree that one of the other 3 did do it. By the claim on Inst. # 7 on the paper it is saying that even if we don’t think he is the one who physcially [sic] did it, he will still be guilty of 1st degree murder.”
The court directed the jury to compare the instruction defining the elements of first-degree murder with the instruction for aiding or abetting in the commission of a crime.
The jury found the appellant guilty of all three counts. The court sentenced him to a term of fife imprisonment with no parole until he served 20 years for the murder, a concurrent term of 94 months for the robbeiy, and a consecutive term of 34 months for the conspiracy. He filed a timely appeal.
The appellant first contends the prosecution made an improper inference of guilt during voir dire and improperly impugned his honesty during closing arguments. Although no contemporaneous objections were lodged to these statements, a contemporaneous objection to alleged prosecutorial misconduct involving improper comments to the jury is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of re view regardless of whether the defendant lodged an objection. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
In general, appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury follows 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. State v. Albright, 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 ofbothK.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) [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.]” State v. Albright, 283 Kan. at 428.
It is unclear, however, whether this two-step analysis has been applied to comments made during voir dire such as those in the present case. Today, we hold this analysis is also properly applied to allegations of improper prosecutorial comments during voir dire.
During voir dire, one of the prosecuting attorneys, in distinguishing between civil and criminal trials, made the following statement:
“I’m sure most of you have heard that in criminal cases the burden of proof is proof beyond a reasonable doubt. That’s the standard. In fact, that’s the highest standard in the country anywhere. Proof beyond a reasonable doubt is as high as it gets.
“And the reason why we have this really all goes back to our Constitution in which there is guaranteed to every person, that includes you and me, the judge, Mr. McReynolds, every person in America has the right to be presumed innocent until proven otherwise. And what that means is that any person accused, whether they’re guilty or not, has a right to have a jury trial, even guilty people. If someone would come in here and shoot me dead in front of all yon guys and we have 50 some witnesses to that, that person still is entitled to their day in court. They have a right to have a trial by a jury of their peers. And the reason is because they are presumed innocent until the State proves them.otherwise. It’s the State’s burden of proof.” (Emphasis added.)
The appellant argues that the prosecutor’s statement undermined the presumption of innocence by suggesting he was guilty before the trial had commenced. He contends, because of the presumption of innocence, no defendant is guilty, as a matter of law, until a guilty verdict has been entered.
The prosecutor’s statement was not outside the bounds of permissible statements. Even if the reference to guilty people deserving a fair trial was, in isolation, a technically inaccurate statement of the law, the entire statement clearly placed the burden on the State to prove guilt and clearly articulated the presumption of innocence.
In State v. McCorkendale, 267 Kan. 263, 276, 979 P.2d 1239 (1999), the prosecutor asked during voir dire, “Does everybody know that Mr. McCorkendale is entitled to a jury trial even if he knows he’s guilty?”
This court held:
“[I]t is apparent that the State, albeit unartfully, was attempting to convey to the prospective jury that every accused person is entitled to trial by impartial jury. We note that there was no objection to the State’s comment, which would have given the trial court the opportunity to address the defendant’s concern. We also note that immediately following this comment, the State informed the jury that it has the burden of proof, we have to prove him guilty to a jury of his peers beyond a reasonable doubt.’ In tight of these following comments, and the entire voir dire consisting of approximately 100 pages, we conclude that the State’s comment provides no basis for reversal of the defendant’s conviction.” 267 Kan. at 276.
The voir dire in the present case consisted of 150 pages of transcript; there was no objection to the comment; and the allegedly improper comment and subsequent qualification are similar to the statement in McCorkendale. Indeed, they appear to have been made by the same prosecutor as in that case. While the appellant makes a valid point that the statement, in isolation, undermines the presumption of innocence, it does not appear that the prosecution emphasized the appellant’s guilt or attempted to shift onto him the burden of proof. As in McCorkendale, albeit inartful and hopefully not revisited phraseology, the comment does not warrant reversal.
During closing argument, the prosecution stated to the juiy,
“No police officer benefits from this investigation, no police officers benefit from concocting stories and making Mr. McReynolds agree to those stories. There’s only one person in the courtroom right now who benefits from coming into this room, concocting a story and testifying under oath about that and you know who that person is.”
The appellant contends that this statement insinuated that he was lying and that the police were telling the truth. The State contends that the statement was nothing more than a legitimate rebuttal to the appellant’s closing argument that the police coerced false confessions from him and from Tamara Ford.
In general, prosecutors may not offer juries their personal opinions as to the credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that include reasonable inferences to be drawn from the evidence. That latitude includes explaining to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses. State v. Scaife, 286 Kan. 614, 623-24, 186 P.3d 755 (2008). No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel. State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008).
During closing argument, counsel for the appellant commented at length on coercive tactics allegedly used by the police in obtaining statements from Tamara Ford and the appellant. When a defendant has told one story during interrogation and a completely different story at trial, it would be difficult for a prosecutor to comment on the evidence without suggesting that untruths existed. See State v. Donaldson, 279 Kan. 694, 707, 112 P.3d 99 (2005). Detective Lawson had denied using coercion beyond admonishing the two youths that they would be better served by telling the truth. Because the credibility of the State’s witness had been challenged, the prosecutor properly offered the jury an explanation of “what it should look for in assessing witness credibility.” Scaife, 286 Kan. at 624. These comments were within the latitude allowed prosecutors when commenting on the evidence. It is unnecessary to reach the second step of the prosecutorial misconduct analysis.
The appellant next challenges the introduction of his audiotaped statements made to Detective Lawson. The State filed a motion seeking to admit the statements that the appellant made to police shortly after the murder. The trial court granted the motion over the appellant’s objection, and the jury heard the tapes and followed written transcripts of the tapes. The appellant contends on appeal that the statements should not have been admitted.
When this court reviews a decision regarding suppression of statements to the police, it applies a substantial competent evidence standard to the factual underpinnings of the trial court’s decision and applies a de novo standard to the ultimate legal conclusion. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Johnson, 286 Kan. 824, 835-36, 190 P.3d 207 (2008).
The voluntariness of a confession is determined under the totality of the circumstances. The State has the burden of proving that a confession is admissible, and it must prove admissibility by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the defendant’s free and independent will. Johnson, 286 Kan. at 836.
The court is to consider numerous factors when determining whether a statement was voluntary. A nonexclusive list of those factors includes the defendant’s mental condition; the manner and duration of the interrogation; the ability of the defendant to communicate with the outside world; the defendant’s age, intellect, and background; the fairness of the officers in conducting the interrogation; and the defendant’s proficiency with the English language. Johnson, 286 Kan. at 836; see State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007).
Before each interview, the appellant was informed of his Miranda rights, which the police explained to him in some detail. The appellant had been in custody for about 5 hours when he made his first taped statement at around 9 a.m. He was taken into custody wearing a T-shirt and his undershorts and remained clothed only in those items during the first interview and taped statement.
The appellant’s mother testified that based on his eyes and his slow speech, the appellant appeared to be intoxicated when she saw him around midnight the night of the murder. The appellant testified that the evening before the interview he had smoked PCP mixed with marijuana and had ingested half of an Ecstacy tablet and two fifths of Hennessy cognac. He testified that he was not “in the right frame of mind” when he signed the waiver of his rights and when he made the first taped statement. He stated that his intoxication prevented him from understanding his rights and caused him to agree with all the suggestions the detectives made to him.
Detective Lawson, on the other hand, testified that, at the time of the interview, the appellant showed no signs of intoxication or being under the influence of drugs. Detective Lawson testified that he made no threats and used no abusive language or tactics in obtaining the statements.
The trial court found that the appellant gave both statements freely and voluntarily. The court found Detective Lawson to be the most credible witness about the appellant’s mental capacity.
The appellant apparently raises two challenges to the admissibility of his statements. First, he argues that his statements were not freely and voluntarily made. Second, he argues that the trial court impermissibly relied on its opinion of the interviewing detective’s past credibility.
The appellant challenges the admissibility of his statements under almost all of the factors enumerated in State v. Walker: his mental condition, the manner and duration of the interrogation, his ability to communicate with the outside world, his age, and the fairness of the officers conducting the interrogation. He emphasizes that his mental condition was impaired by drugs and alcohol, that he was interrogated over a period of several hours, and that he was still wearing nothing but a shirt and undershorts during the interrogation.
The trial court found that the statements were freely and voluntarily made. The trial court heard the testimony of the interviewing detective and the testimony of the appellant and his mother. The court also heard the statements by die appellant and considered the written waivers of rights. The two statements were made with an interval of 3 days between them, and the statements were generally consistent. The appellant testified at trial that the effects of PCP wear off after an hour or two. The appellant accurately provided the detective with his telephone number, his birthday, and his residential address during both interviews.
Although the appellant implicates a number of factors that may undermine the voluntariness of a confession, the record does not provide a basis for reversing the trial court’s findings. On the contrary, a review of the record suggests the appellant was lucid, articulate, consistent, and calm when making both statements and that there is substantial competent evidence to support the trial court’s decision to admit the statements.
The appellant also challenges the trial court’s reliance on previous testimony by Detective Lawson. The trial court observed that it had found Lawson to be a credible witness in past cases. The judge stated:
“Detective Lawson has testified in this court a number of times on these issues and the Court has found Detective Lawson in the past to be a very credible witness, that Detective Lawson will freely say things that may not necessarily be in the State’s best interest, but that he has always been an exceptionally honest witness in this Court’s view and there’s nothing that’s occurred here today that would cause my mind to be changed.”
In general, previous statements by a witness, even in the same case, may not be used to bolster the credibility of that witness. See, e.g., Donaldson, 279 Kan. at 709; State v. Whitesell, 270 Kan. 259, 290, 13 P.3d 887 (2000); State v. Fouts, 169 Kan. 686, 696, 221 P.2d 841 (1950); State v. Kackley, 32 Kan. App. 2d 927, 935, 92 P.3d 1128, rev. denied 278 Kan. 849 (2004). In any event, it is incumbent on the court to rely on the evidence presented in the case before it and not on its impression of a witness’ credibility based on testimony presented in previous cases.
This is perhaps the most serious assertion of fault raised by the appellant. The appellant’s taped statements, which were at odds with the appellant’s theory and testimony at trial, must have been highly persuasive to the jury. If the trial court had excluded those statements, it is conceivable that the jury might have found the appellant not guilty or perhaps guilty of lesser crimes. The trial court’s reference to Detective Lawson’s credibility in other cases was not merely passing; it was made at some length and in some detail.
On the other hand, as we found above, the record contains ample evidence suggesting that the appellant’s statements were freely and voluntarily made. This evidence includes, in addition to the detective’s comprehensive testimony, the appellant’s demeanor on the tapes, the factual consistency between the tapes, the waivers of rights that were explained in detail, the verifiable factual accuracy of certain parts of the statements, and the passage of time between the first taped statement on the morning after the crime and the second taped statement 3 days later. The totality of the circumstances supports the trial court’s determination that the statements were freely and voluntarily made. It therefore appears that the trial court’s comment on Lawson’s credibility was more in the nature of surplus verbiage and less in the nature of an independent, compelling reason for admitting the statements. While the trial court’s comment was unnecessary, it did not amount to reversible error. The decision to admit the appellant’s statements rests upon substantial competent evidence.
The appellant next complains that the trial court erred in fading to grant his motion for a mistrial made during the testimony of Detective Lawson, as well as his motion for a new trial made following the proceedings. A motion for mistrial, like a motion for a new trial, is reviewed under an abuse of discretion standard, and the party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced. State v. Albright, 283 Kan. at 425-26; State v. Kirby, 272 Kan. 1170, 1192, 39 P.3d 1 (2002).
Detective Lawson testified at trial about his station interview of Ford, who initially incriminated the four male youths, and his sta tion interview of the appellant and a subsequent juvenile detention center interview of the appellant. On cross-examination, the detective mentioned statements made by the appellant’s brother, Benjamin, although Benjamin’s statements were not introduced at trial.
Defense counsel made an oral motion for a mistrial, asserting that the detective had introduced impermissible hearsay testimony to the jury. The trial court found the detective’s answers came within the scope of the open questions being asked on cross-examination and denied the motion. Defense counsel renewed the issue in a posttrial motion for new trial, which the trial court denied.
In answering questions, Detective Lawson made three vague references to the consistency of the appellant’s stories related during his interrogation with the stories related by others, including the appellant’s brother. The cross-examination questions were directed toward the interrogation techniques and whether the detective had referred to the interrogations of the other youths to manipulate the appellant’s responses. The detective testified that at the beginning of the interrogation he had not yet talked with Tamara or with the appellant’s brother, but that he later confronted the appellant with inconsistencies between his story and the stories that others were telling. “I told him his story didn’t jive with Tamara’s nor his brother’s or some other people involved.” “What I’m saying is that I told him that not only had Tamara and, you know, his brother and other people told us what had been going on is that, you know, I mean everybody’s stories, you know, I mean within the situation were kind of consistent.”
The trial court found that the questions were open-ended and allowed a broad range of responses. This finding is correct; it is difficult to ascertain specifically what some of the questions posed on cross-examination were asking. In addition, the references to the brother’s statements were fleeting and did not identify any admissions or factual allegations that may have been contained in those statements. The jury could reasonably have inferred that the brother told the police something since it knew from previous testimony that he was arrested at the same time as the appellant. The record is silent as to what he actually told the police, except that it may have differed in some fashion from what the appellant and Tamara initially told the police.
The appellant has not demonstrated prejudice to his substantial rights as a consequence of Detective Lawson mentioning statements by his brother, nor did the trial court abuse its discretion in refusing to grant a mistrial.
Finally, the appellant argues that trial errors, considered cumulatively, were so great as to require reversal of his conviction. The standard is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative error rule if the evidence is overwhelming against a defendant. State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007).
Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007); State v. Jones, 283 Kan. 186, 218, 151 P.3d 22 (2007). One error is insufficient to support reversal under the cumulative effect rule. State v. Nguyen, 285 Kan. at 437.
No error of substance occurred in the course of the trial. The evidence against the appellant, especially his taped statements acknowledging his participation in the planning and execution of the fatal robbery, corroborated by other evidence introduced at trial, is overwhelming and provides no grounds for reversal.
The trial court sentenced the appellant to a guideline sentence that was in the aggravated range for conspiracy to commit aggravated robbery. The appellant contends on appeal that imposition of the high end of die sentencing grid without submitting the grounds for an aggravated sentence implicates constitutional provisions for trial by jury.
Interpretation of a sentencing statute is a question of law, and the appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008). The constitutionality of a sentencing statute is a question of law over which this court has unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007).
This court has recently addressed this issue and has taken a position adverse to the appellant’s argument: “A sentence to any term within the range stated in a Kansas sentencing guidelines presumptive grid block does not violate Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).” State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008); see State v. Gallegos, 286 Kan. 869, 879, 190 P.3d 226 (2008).
The appellant was assigned a criminal histoiy score of D based on a previous conviction of robbery. He contends on appeal that the facts supporting the determination of his criminal histoiy were not submitted to the juiy and therefore could not be used to raise his criminal histoiy score from I to D.
This court has repeatedly addressed this issue, consistently reaching the same result. The issue was initially addressed in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and was decided adversely to the appellant. The appellant argues, however, that Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005), has modified the constitutional interpretation on which Ivory relied. The appellant overlooks that cases decided subsequent to Shepard have reaffirmed the Ivory holding. See James v. United States, 550 U.S. 192, 167 L. Ed. 2d 532, 127 S. Ct. 1586 (2007); State v. Storey, 286 Kan. 7, Syl. ¶ 4, 179 P.3d 1137 (2008); State v. Farmer, 285 Kan. 541, 555, 175 P.3d 221 (2008); State v. Holt, 285 Kan. 760, 777, 175 P.3d 239 (2008); State v. Gaither, 283 Kan. 671, 693, 156 P.3d 602 (2007); State v. Hawkins, 40 Kan. App. 2d 10, 19, 188 P.3d 965 (2008).
The appellant has established no grounds for reversal of his convictions for first-degree murder, aggravated robbeiy, and conspiracy to commit aggravated robbeiy, nor for any modification of his sentence. The same are affirmed.
Affirmed.
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Herd, J.:
This is an action to construe a will. Donald H. Sellens, the testator herein, died June 8,1978. He was survived by his wife, Dorothy M. Sellens, and three adult children, Donita M. Seirer, Robert W. Sellens and Billie Jo Breit. The testator bequeathed all his personal property to his wife, Dorothy. He also devised to her certain real estate in fee and a life estate in one-half the residue of his estate with the other half of the residue and a remainder after the life estate to his three children. A part of the residuary estate consisted of four separate tracts of oil and gas minerals in place producing under oil and gas leases. This is the subject of the controversy. The appellees, Home State Bank, executor of the estate of Donald H. Sellens, Dorothy M. Sellens and Billie Jo Breit, argue the right to receive the unaccrued royalty from the fractional mineral interest is personal property and therefore the sole property of Dorothy M. Sellens under the will. The appellants, Donita M. Seirer and Robert W. Sellens, maintain the unaccrued royalties are real estate and therefore descend pursuant to the residuary clause of the will. The trial court ruled the right to receive the royalties is personal property. This appeal followed.
The only issue is whether the lessor’s right to receive future royalty under an oil and gas lease of minerals in place is an interest in real estate or an interest in personal property. To resolve the issue, it is necessary to examine the nature of the parties’ interests under an oil and gas lease to minerals in place. The parties stipulated the subject of the lease is minerals in place which are identified as an interest in real estate. Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 69 P.2d 4 (1937). Appellants argue it follows that the decedent’s property interest in the minerals in place being real estate is not changed by the leasing of it and is therefore controlled by the clause of testator’s will pertaining to real estate — clause six.
Appellees respond contending appellants’ argument is not germane because “decedent’s royalty interest and payments are predicated on the terms of each oil and gas lease, not on decedent’s mineral ownership.” They continue, “an oil and gas lease is a contract which establishes the terms and working relationship between lessor and lessee.” They conclude the right to future royalty is therefore an interest in personal property controlled by clause three of decedent’s will.
In Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750 (1907), the court had occasion to consider the nature of the property interest granted in an oil and gas lease, where production of gas was occurring. In recognizing that production of gas did not change the nature of minerals in place from real estate to personal property the court stated at page 341:
“The development of the property, however, did not change the title to the minerals in place. The lessee, having nothing but the right to enter,' operate for and procure gas, obtained no right to any specific quantity of it, and until gas is actually produced and severed so that it becomes personalty the legal title to, and the possession of, the entire volume remains in the owner of the strata in which it is confined.”
Later, in Burden v. Gypsy Oil Co., 141 Kan. 147, 149, 40 P.2d 463 (1935), the appellants contended that after the leasing and discovery of oil, “the oil in the ground became dissevered absolutely from the land, was personal property . . . .” The court rejected the argument, stating in Syl. ¶ 4:
“Oil and gas in the ground are part of the real estate, and discovery thereof through exploration under an oil and gas lease does not effect a disseverance; until brought to the surface, there is no disseverance.”
Then in In re Estate of Randolph, 175 Kan. 685, 691-92, 266 P.2d 315 (1954), the court held an oil and gas lease did not sever the oil and gas from the minerals in place. “Royalty,” it stated, does not apply to oil and gas in the ground. The court went on to hold future production (unaccrued royalty) from the mineral estate of the decedent was realty.
Appellees distinguish this case citing: Waechter v. Amoco Production Co., 217 Kan. 489, 537 P.2d 228 (1975); Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P.2d 19 (1962); Strait v. Fuller, 184 Kan. 120, 334 P.2d 385 (1959); Froelich v. United Royalty Co., 178 Kan. 503, 290 P.2d 93 (1955); Lathrop v. Eyestone, 170 Kan. 419, 227 P.2d 136 (1951); Holland v. Shaffer, 162 Kan. 474, 178 P.2d 235 (1947); Riffel v. Dieter, 159 Kan. 628, 157 P.2d 831 (1945); Kumberg v. Kumberg, 5 Kan. App. 2d 640, 623 P.2d 510 (1981); for authority the lessor’s interest in minerals in place is converted from real estate to personal property when leasing occurs because the lease provides for certain royalty as consideration. They argue the lessor’s right to the future royalty originates with the lease, a personalty interest, making lessor’s interest personal property. Appellees’ authorities do not support their position. The common thread in appellees’ cases defines royalty as the lessor’s right to share in production of oil and gas at severance. Clearly, severed oil and gas is personalty. Appellees claim, however, the right to receive future production is also personal property. The confusion, if any, arises from the courts’ failure to specifically define the lessor’s interest in future production under an oil and gas lease.
Admittedly an oil and gas lease is a hybrid instrument. It has all of the characteristics of a realty interest, yet the relationship of landlord and tenant does not arise. The lessee does not obtain possession of the land. K.S.A. 77-201 Eighth provides: “The word ‘land,’ and the phrases ‘real estate’ and ‘real property,’ includes lands, tenements and hereditaments, and all rights thereto and interest therein, equitable as well as legal.” In Supply Co. v. McLeod, 116 Kan. 477, 227 Pac. 350 (1924), the court held a lease personal property in spite of the recording statute. In Robinson v. Smalley, 102 Kan. 842, 171 Pac. 1155 (1918), the court held oil and gas leases are subject to the statute of frauds even though personalty. And in Derby Oil Co. v. Bell, 134 Kan. 489, 7 P.2d 39 (1932), the court held leases were subject to the recording statute, even though the statute pertained to realty, on the theory leases affect real estate. To further obliterate the distinction between real estate and personal property in an oil and gas lease, Kansas statutes have now been amended to make oil and gas leases subject to ejectment (K.S.A. 60-1001), quiet title (K.S.A. 60-1002), and partition (K.S.A. 60-1003), comparable to real estate. For a good discussion of the hybrid character of an oil and gas lease see Ingram v. Ingram, 214 Kan. 415, 521 P.2d 254 (1974).
In spite of the similarity to an interest in real estate, an oil and gas lease is defined as a license to enter and explore for oil and gas, an incorporeal hereditament, personal property. Burden v. Gypsy Oil Co., 141 Kan. at 150; Gas Co. v. Neosho County, 75 Kan. 335. The lease is owned by the lessee; therefore the foregoing cases describe the lessee’s interest.
Neither is an oil and gas lease a usual contract. It is signed by only one party, the lessor. It is a grant with conditions. One of the conditions is a reservation to the lessor of a share in the production. Therein lies the flaw in appellees’ argument. The lessor’s rights to royalty do not originate with the lease. The lessor reserves his rights to royalty out of the grant. His rights arise from his ownership of the real estate rather than the lease and are therefore interests in real estate until the oil and gas are captured. It follows then that future royalty (unaccrued royalty) is a part of the real estate of the lessor; it is uncaptured and of an undetermined amount or location. Present royalty (accrued royalty) on the other hand, is captured and severed from the realty; it is personal property.
3 Kuntz, Law of Oil and Gas § 38.2 (1967), makes this analysis:
“The right to receive royalty in the future is one of the separately alienable incidents of ownership of the full mineral interest, and such incident of ownership is a part of the estate which remains in the lessor upon the delivery of an oil and gas lease. Accordingly, it is generally recognized that unaccrued royalty is properly classified as real property . . . .” p. 242.
In United States v. Noble, 237 U.S. 74, 80, 59 L.Ed. 844, 35 S.Ct. 532 (1915), Justice Hughes stated:
“The rents and royalties were profit issuing out of the land. When they accrued, they became personal property; but rents and royalties to accrue were a part of the estate remaining in the lessor.”
A similar statement is made in Mills and Willingham, Law of Oil and Gas (1926):
“Accrued royalties are ordinarily personal property or more strictly a chose in action. But unaccrued royalty is an incident of the reversion, a part of the estate remaining in the lessor. As such it passes to the heirs and not to the personal representative.” p. 179.
For annotations on oil and gas royalty interests see 131 A.L.R. 1371; 101 A.L.R. 884; 90 A.L.R. 770.
We are aware that in Tegarden v. Beers, 175 Kan. 610, 265 P.2d 845 (1954), the court held an interest in future oil and gas royalty is personal property. That case, however, is distinguishable. In Tegarden the interest was created by a postnuptial contract and not by an oil and gas lease.
We are concerned here with what Donald H. Sellens owned at his death. He owned interests in minerals in place. Those interests were interests in real estate. The rights to future royalties under the oil and gas leases from his mineral interests are real estate. Those rights are controlled by clause six of his will which disposed of real estate.
The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.
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Foth, C.J.:
Plaintiff, administrator of the estate of Raymond R. Swanston, brought this action for benefits under a group credit life insurance policy issued by defendant through the McConnell Air Force Base Credit Union in Wichita. She appeals from summary judgment rendered in favor of defendant, Cuna Mutual Insurance Company.
The trial court’s judgment was rendered on stipulated facts incorporated in the journal entry:
“1. Raymond R. Swanston was, prior to February 1, 1963, in the military service as a member of the Air Force and retired on that date holding the rank of Major.
“2. The duties of Raymond R. Swanston while with the Air Force were as an ‘appropriation and Accounting Officer in Base Supply’.
“3. Subsequent to February 1, 1963, Decedent, Raymond R. Swanston, was employed at Beech Aircraft Corporation, Lear Sieglet and Instruments and Flight Research, Inc. in which employments the duties were similar to his duties during his military career.
“4. On or prior to May 25, 1976, Raymond R. Swanston was a member of the McConnell AFB Federal Credit Union.
“5. On or about May 25, 1976, Raymond R. Swanston made application to McConnell AFB Federal Credit Union of Wichita, Kansas for a loan as is evidenced by Exhibit ‘A’ attached to the deposition of Etta J. Swanston, which Exhibit is made a part hereof by reference.
“6. That prior to and on May 25, 1976, Cuna Mutual Insurance Society had issued to McConnell AFB Federal Credit Union of Wichita, Kansas, a group Life Insurance Contract, Loan Protection. (Form No. LO-7 Kan. 1-60).
“7. That on or about May 25,1976, Raymond R. Swanston secured a loan from the McConnell AFB Federal Credit Union of Wichita, Kansas, in the principal amount of Five Thousand Nine Hundred Dollars ($5,900.00).
“8. That said Group Life Insurance Contract referred to in Finding No. 6 above and the Certificate of Insurance Loan Protection Issued by the Defendant pursuant to such Group Life Insurance Contract, a copy of which is attached to Plaintiff’s Amended Petition and incorporated herein by reference, limited insurance coverage in part as follows;
‘the member is then physically able to perform, or within a reasonable time to resume, the usual duties of his livelihood.*
“9. Raymond R. Swanston died August 17, 1977.
“10. That on May 25, 1976, and on no date subsequent to that date was Raymond R. Swanston physically able to perform the requirements of the employment in which he was engaged in the Air Force, with Beech Aircraft Corporation, with Lear Siegler or with Instruments and Flight Research, Inc.”
The trial court went on to say that the issue revolves around the definition of the term “livelihood” as used in the basic contract and the certificate issued to Swanston. Its conclusion was:
“12. Livelihood in this situation means that the applicant must be employed, must be occupied in some occupation or employment.
"13. The applicant must be substantially employed in some occupation in some business profession.”
Since Swanston was not engaged in any “livelihood” as so defined, the court found no coverage.
We agree with the trial court’s ultimate result, but we arrive by a slightly different route. “A court, in construing an insurance policy, should consider the instrument as a whole and endeavor to ascertain the intent of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter and the purpose to be accomplished.” Mah v. United States Fire Ins. Co., 218 Kan. 583, Syl. ¶ 1, 545 P.2d 366 (1976). In this case we must determine what was intended by inserting in the policy the condition that a member would be covered only if “the member is then physically able to perform, or within a reasonable time to resume, the usual duties of his livelihood.” Bearing in mind that this was group life insurance where the usual life insurance physical examination is not required, it seems readily apparent that the company sought some minimum level of physical well-being to be exhibited by a credit union member before the company would assume the risk.
The clause in question is minimal: it requires no level of health beyond being physically able to perform the usual duties of one’s livelihood. As we read it, the clause does not require the insured to be actually employed, either at the time the loan is taken out “or within a reasonable time” thereafter. It does, however, require the physical ability to perform the duties of the borrower’s “livelihood.”
In this case it was stipulated that Swanston was physically unable to perform the duties of any money-making activity in which he had ever engaged. No other potential “livelihood” was suggested for him requiring effort on his part in return for pay. Plaintiff’s argument below and on appeal is simply that collecting his retirement pay was his “livelihood,” even though he was physically unable to engage in any gainful occupation. To so construe the policy clause would, in our opinion, run counter to the manifest purpose of the policy provision requiring a minimum level of physical well-being.
Two cases relied on by plaintiff do not help her. In Ethyl Employees Federal Credit Union v. Cooper, 159 So. 2d 610 (La. App. 1963), the insured welder had had a heart attack which disabled him from carrying on that occupation. However, he continued in substantially remunerative work in the construction and sale of houses through a realtor, and was so engaged when he borrowed and when he died. There can be no quarrel with the court’s conclusion that the insured there was covered. He met the identical condition we have hére in a policy issued by this defendant in that case.
Plaintiff’s second case is McCarty v. McCarty, 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728 (1981). In holding that military retirement pay is not subject to division as community property, the court noted that a retired officer is subject to recall to active duty at any time. This, the court noted, had led to a- characterization of such pay as “reduced compensation for reduced current services.” 453 U.S. at 222, 69 L.Ed.2d at 599. The argument might be persuasive if Swanston had been physically able to respond to a recall to active duty. It might then have been said that his “livelihood” was that of a retired Air Force officer, subject to recall to active duty, and that he was “physically able to perform” the duties of that livelihood. Swanston, however, was stipulated to have been physically unable to perform the usual duties of an Air Force officer. The fact that he apparently was never placed on any official “disabled” list does not change the fact of his stipulated physical disability.
Finally, plaintiff now argues that defendant had a right to require proof of Swanston’s insurability and, having never exercised that right, waived any question of coverage. However, the plaintiff failed to present this theory to the trial court and cannot raise it on appeal. Fleming v. Etherington, 227 Kan. 795, Syl. ¶ 7, 610 P.2d 592 (1980). Even then, it is the well settled general rule waiver and estoppel cannot be used to expand the coverage of an insurance contract. See 43 Am. Jur. '2d, Insurance § 1058, p. 983 (1969); 45 C.J.S., Insurance § 674, p. 616 (1946). Defendant’s failure to require further proof of insurability did not serve .to meet the explicit condition of coverage.
Affirmed.
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Spencer, J.:
Following trial to a jury, defendant was adjudged guilty of one count of aggravated assault (K.S.A. 21-3410 [Ensley]) and one count of simple battery (21-3412).
Defendant does not challenge the sufficiency of the evidence presented at trial, but contends it was error for the trial court to allow the prosecution to inquire as to whether he had testified at the preliminary hearing. This is the sole issue on appeal.
The conviction stems from an armed altercation with one Michael Sipes. Also present but not directly involved was one Randy Chrisman. At trial defendant’s sister was asked what she had told the police when they came to her house the evening of the day the events took place. Her answer was:
“Well, I didn’t tell them anything, really. Danny, evidently, was protecting Mike by saying it was black people. So I just kind of looked at Danny. I said, ‘Yeah, it was black people.’ I figured if Danny was going to be in trouble for something, then I needed to keep my mouth shut until Danny had a lawyer.”
Defendant was the final witness to take the stand and testified that he acted in self-defense. Otherwise, the major portion of his testimony was an attempt to refute that of Sipes and Chrisman regarding the exchange of gunfire.
On cross-examination, the prosecution questioned defendant regarding the whereabouts of the .22-caliber rifle defendant had used. In answer to questions directed by the prosecution, defendant responded he did not know the whereabouts of the rifle; he had initially thought the police had recovered it; and he was not at the time concerned with the evidentiary value of the rifle as he “didn’t even want to see [Sipes] get in any trouble.” The following question and answer were then recorded:
“Q. Is that why you told the police it was blacks that shot at you?
“A, Yes, sir. I knew [Sipes] would bring my billfold back.”
Toward the close of cross-examination, defendant again admitted he had initially told the police it was blacks who had been shooting at him. This admittedly false statement was not obtained from defendant subsequent to arrest, but was the result of a conversation with the police conducted pursuant to their initial investigation of the shooting shortly after its occurrence. On redirect examination, defense counsel elicited the following as having taken place immediately after defendant’s arrest:
“Q. When you were down to the police station, you had an opportunity to talk to Officer Padilla who was sitting here?
“A. Yes, I did.
“Q. Did he ask you to make a statement?
“A. Not at the police station.
“Q. Did you talk to Padilla that evening?
“A. Yes, I did.
“Q. Did he ask you to make a statement?
“A. Yes, he did.
“Q. And what did you tell him?
“A. I asked him, ‘Well, I don’t have no legal counsel, don’t have a lawyer. I don’t even know why I am here. For some legal advice, would you tell me what I should do?’
“Q. You asked Officer Padilla for some advice?
“A. And he said, ‘I can’t give you that advice that you need.’ I said, ‘Would you make a statement if you were in my shoes?’ He said, ‘Between me and you, would I make a statement?’ I said, ‘Yes.’ He said, ‘No.’ I says, ‘Okay. I guess that’s all I need to know.’ He says, ‘So you won’t make a statement?’ I said, ‘Not without legal counsel.’
“Q. And you waited for an attorney?
“A. And I waited for an attorney.”
On recross-examination, the prosecutor developed the following testimony, containing the complained-of question assigned error by defendant:
“Q. But what contact you had with him [Officer Padilla] you figured that he was being fair?
“A. Why I just stated one thing. I said, ‘They got the wrong man here.’ That’s what I told Mr. Padilla, but that wasn’t a statement because I told him I wasn’t going to give a statement.
“Q. And you didn’t testify at the preliminary hearing, did you?
“MR. ROWINSKY: Judge, I object. He has no obligation to testify and bring forth testimony at any proceeding.
“THE COURT: Well, overruled.
“MR. HENDERSHOT: State agrees. I’m just asking — (Interrupted)
“A. No, I didn’t testify at the preliminary hearing.
“Q. (BY MR. HENDERSHOT) Okay. You know you have the legal right not to testify at that preliminary hearing. Mr. Rowinsky told you that?
“A. Yes.” (Emphasis added.)
On further redirect examination, the following occurred:
“Q. Danny, do you remember the preliminary hearing?
“A. Yes.
“Q. Do you remember how many times you asked me if you could testify?
“A. Uh-huh.
“Q. How many?
“A. Three, four.
“Q. What did I tell you?
“A. To wait.”
In response to defendant’s assertion of error, the State argues defendant’s answer to the question of whether he had testified at the preliminary hearing was volunteered as no question had been asked at the time of the response; and that defendant’s objection was properly overruled and never renewed in proper form. We find no merit to these assertions for clearly defendant’s counsel did object, and just as clearly that objection was based upon constitutional grounds. Obviously, defendant’s answer was in response to the question and was given when he heard the court overrule the objection.
The State contends that even if defendant’s answer was a direct response to its inquiry and not merely a volunteered statement, the situation did not in fact constitute error, but if it was error it was harmless beyond a reasonable doubt. It is argued defendant and his sister had both admitted having made false statements to the police the night of the incident, and the right to remain silent is not a shield for perjury once defendant takes the stand; and furthermore, the constitution does not forbid all use of prior silence for impeachment purposes. In this connection, the State relies on Jenkins v. Anderson, 447 U.S. 231, 65 L.Ed.2d 86, 100 S.Ct. 2124 (1980), which dealt with the use of an accused’s pre-arrest silence in not reporting with respect to a crime for which he was subsequently arrested and prosecuted. We find no fault with this argument but we are not here concerned with the question of defendant’s pre-arrest silence, nor is it clear as to how his failure to testify at the preliminary hearing might have been a shield for perjury. Defendant admitted he first told the police black people were involved, and it is clear from this record that inquiry as to whether he testified at the preliminary hearing was not to show that he had given inconsistent statements or had perjured himself, but was intended primarily to discredit his plea of self-defense. See State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982); State v. Singleton, 223 Kan. 559, 575 P.2d 540 (1978).
It is also argued that inasmuch as defendant elected to testify in his own behalf, he was subject to being examined as any other witness. In making this assertion the State relies on Raffel v. United States, 271 U.S. 494, 70 L.Ed. 1054, 46 S.Ct. 566 (1926), wherein it was stated:
“The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness.” 271 U.S. at 499.
and which held in substance that an accused becoming a witness in his own behalf on a second trial of the case may be cross-examined as to why he did not become a witness at the first trial.
In State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), our Supreme Court considered a similar issue and, relying at least in part on Raffel, held among other things that when a defendant testifies he may be impeached like any other witness.
Following the decision in Bly however, the United States Supreme Court rendered its decision in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), and said in effect that use for impeachment purposes of a defendant’s post-arrest silence, after receiving the Miranda warnings, violates the due process clause of the Fourteenth Amendment to the United States Constitution.
Doyle was considered by the Kansas Supreme Court in State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976), wherein it was held:
“The use for impeachment purposes of a defendant’s silence at the time of his arrest and after receiving Miranda warnings, violates the due process clause of the Fourteenth Amendment to the United States Constitution.” Syl. f 1.
“Before a federal constitutional error in a criminal action can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Syl. ¶ 4.
In doing so, the court expressly overruled conflicting portions of the opinion in Bly.
Our conclusion is that the authority of Raffel is no longer recognized in this state as applicable to circumstances here related. We hold it was error to permit inquiry at trial as to whether defendant had testified at the preliminary hearing. Having so decided, the question remains as to whether it was harmless error.
As related, defense counsel first elicited testimony which revealed to the jury that defendant had elected to stand on his right to remain silent and refused to make a statement to the police. In response to a question directed by the prosecution, defendant again stated without objection that he refused to make a statement to the police. Immediately following the complained-of question and answer regarding defendant’s silence at preliminary, defense counsel took pains to explain to the jury that defendant’s silence at the preliminary hearing was upon advice of counsel and not defendant’s reluctance to testify.
The prejudicial inference normally created where the State initially raises the point of post -Miranda silence was not raised in the same degree as in other cases decided by our Supreme Court and by this court. See State v. Clark, 223 Kan. 83, 574 P.2d 174 (1977); State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977); State v. Heath, 222 Kan. 50, 563 P.2d 418 (1977); State v. Mims, 220 Kan. 726; State v. Satterfield, 3 Kan. App. 2d 212, 592 P.2d 135, rev. denied 226 Kan. 793 (1979).
Here, defendant’s own counsel first revealed to the jury that defendant had elected to maintain post-Miranda silence. The revelation that defendant also failed to testify at preliminary could hardly be any more damaging, especially where it was made clear to the jury that defendant failed to testify on advice of counsel and not due to lack of desire to do so. Under these circumstances, it can reasonably be stated that the complained-of error was harmless beyond a reasonable doubt. See State v. Smith, 223 Kan. 294, 574 P.2d 161 (1978); State v. Jordan, 223 Kan. 197, 574 P.2d 194 (1977).
Affirmed.
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Swinehart, J.:
This is an appeal by defendant Melvadean Olsen (now Peterson) from the order of the District Court of Johnson County overruling her motion for allowance of attorney fees she incurred in responding to the appeals taken by plaintiff from the previous orders of the district court concerning a divorce action. The issue presented in this appeal is whether the district court erred in ruling that it was without jurisdiction and was not the proper forum to award attorney fees for services rendered on an appeal to the Kansas Court of Appeals.
This action arises out of a bitterly contested divorce action. The final judgment in the protracted divorce proceedings was filed by the district court on June 11,1980. The divorce case was tried, the parties divorced and their property divided. Defendant was not allowed attorney fees in the original action. Plaintiff appealed the trial court’s division of property to the Kansas Court of Appeals (Case No. 52,282). This court affirmed the trial court in a memorandum opinion filed April 10, 1981. Plaintiff then filed motions for rehearing or rehearing en banc. On April 28,1981, the motions were denied and defendant’s reply motion for attorney fees incurred in defending just the motions for rehearing or rehearing en banc was also denied. On June 19, 1981, plaintiff’s petition for review was denied by the Kansas Supreme Court.
On June 25,1981, defendant made a motion to the district court for an order requiring plaintiff to pay attorney fees and costs in the sum of $4,502.50 incurred by defendant in responding to the appeals taken by plaintiff from the previous orders of the court because those appeals were not meritorious and were carried far beyond a reasonable level. The district court denied defendant’s motion by order filed on September 16, 1981. On September 30, 1981, defendant made a motion to the Court of Appeals for attorney fees incurred in the appeal. The requested attorney fees were considered and denied on October 7, 1981, for the reason that the appellate court lacked jurisdiction because the mandate had gone down. Defendant then filed this appeal from the trial court’s order denying attorney fees.
Defendant contends that the trial court erred by ruling that it was without jurisdiction and was not the proper forum to award attorney fees for services rendered on an appeal. Defendant maintains that K.S.A. 1981 Supp. 60-1610(/i) gives the trial court authority to award costs and fees. That section provides:
“A decree in an action under this article may include orders on the following matters:
“(h) Costs and Fees. Costs and attorneys’ fees may be awarded to either party as justice and equity may require.”
It is clear from a literal reading of this statute that the issue presented in this appeal is not specifically resolved. This provision deals generally with divorce proceedings. The courts have, however, applied this statute in some post-divorce actions. In Kessler v. Kessler, 188 Kan. 255, 257, 362 P.2d 21 (1961), the Supreme Court held:
“It is the law of this state that a wife may recover reasonable attorney fees from her husband when she is compelled by his wrongs to employ counsel to protect her rights. When a former wife seeks to defend or enforce a judgment, attorney fees are properly allowable (Maston v. Maston [171 Kan. 112, 229 P.2d 756 (1951)]). In other words, after a divorce is granted, attorney fees are allowable if a wife is forced, due to the action or inaction of her former husband, to come into court to protect a right granted her by the judgment in a divorce action.”
Kessler is representative of the bulk of cases concerning the recovery of attorney fees in divorce actions. Those cases all arise from an award of attorney fees by a district court when the proceedings have taken place in the district court, either in the original divorce action or in a post-divorce proceeding for either the modification of an order, or the enforcement of an order. The issue of whether a district court may award attorney fees for the appeal of a divorce action in a Kansas appellate court has never been addressed before.
In Santee v. North, 223 Kan. 171, 574 P.2d 191 (1977), the court dealt with a similar issue which defendant argues is applicable to the present case. Santee is the sequel of a divorce action which originally reached the Kansas Supreme Court in North v. North, 217 Kan. 213, 535 P.2d 914 (1975). In that case the court rejected the defendant-husband’s constitutional challenge to the Kansas statute authorizing a divorce on the ground of incompatibility. After rehearing was denied, the defendant sought review by the United States Supreme Court in two separate proceedings, an appeal under 28 U.S.C. § 1257(2) and a petition for writ of certiorari under 28 U.S.C. § 1257(3). The plaintiff’s counsel opposed both proceedings. The United States Supreme Court dismissed the 28 U.S.C. § 1257(2) appeal for lack of a substantial federal question (North v. North, 423 U.S. 918 [1975]), and denied certiorari (North v. North, 423 U.S. 940 [1975]). The plaintiff then filed a motion in the district court from which the original divorce was granted, asking for attorney fees for services rendered in defending the divorce decree in the United States Supreme Court. The district court allowed $1,500 and the defendant appealed. The Kansas Court of Appeals affirmed the district court in an unpublished opinion, holding that the award of fees is discretionary under K.S.A. 60-1610(g) (now [h]), and no abuse of discretion was found which would warrant overturning the trial court’s order. The Kansas Supreme Court reversed the Court of Appeals, but on other grounds, and noted that the jurisdictional issue regarding a state trial court’s authority to allow attorney fees for services rendered in the federal courts was argued at the state trial court level, but was not raised on appeal. Santee v. North, 223 Kan. at 172. Consequently, Santee does not constitute precedent for defendant’s position.
Supreme Court Rule 7.07, 228 Kan. liii-liv, concerns costs and fees on appeal. It provides in part:
“(a) GENERAL. In any case there shall be separately assessed when applicable all fees for service of process, witness fees, reporter’s fees, allowance for fees and expenses of a master or commissioner appointed by the appellate court, and any other proper fees and expenses. All such fees and expenses shall be approved by the appellate court unless specifically fixed by statute. When any such fees and expenses are to be anticipated in a case, the appellate court may require the parties to the proceeding to make deposits in advance to secure the same. In disposing of any case before it, an appellate court may apportion and assess any part of the original docket fee, the expenses for transcripts, and any additional fees and expenses allowed in the case, against any one or more of the parties in such manner as justice requires.
“(b) FRIVOLOUS APPEALS. If the court finds that an appeal has been taken frivolously, or only for purposes of harassment or delay, it may assess against an appellant or his counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney’s fee for the appellee’s counsel. The mandate shall then include a statement of any such assessment, and execution may issue thereon as for any other judgment, or in an original case the clerk of the appellate courts may cause an execution to issue.” (Emphasis added.)
Although it does not have any authoritative status, the Kansas Appellate Practice Handbook discusses the recovery of attorney fees for services rendered and expenses incurred in appeals in nonindigent civil appeals:
“The purpose here is not to specify the types of actions in which attorneys’ fees may be allowed on an appeal. The purpose is to set out the procedure to be followed whenever attorneys’ fees may be allowed as additional costs on appeal, e.g., those involving divorce and alimony (K.S.A. 60-1610); certain actions involving the negligent operation of a motor vehicle (K.S.A. 60-2006); and certain actions on insurance policies (K.S.A. 40-256).
“When an attorney seeks an award of attorney fees for services performed on appeal, he should file a motion in the appellate court in which the services were rendered for allowance of attorney fees and reimbursement of expenses incurred, attaching an affidavit to the motion indicating the nature and extent of the services rendered and specifying the time expended and the expenses incurred on the appeal. The affidavit should also contain factors demonstrating the reasonableness of the claim {see Rule 231, DR 2-106(B), 220 Kan. cxv-cxvi). The motion should be filed promptly after oral argument. There is no hearing before the appellate court on the issue of allowance of attorney fees. Upon examining the affidavit and the records submitted, the court will ordinarily dispose of the application for fees by separate order.” Kansas Appellate Practice Handbook, KBA 1978, pp. 47-48.
This simple procedure was available to defendant to seek recovery of attorney fees incurred. Defendant was familiar with this procedure. Indeed, she utilized the procedure when she sought recovery of expenses and fees incurred in defending plaintiff’s motions for rehearing or rehearing en banc before the Court of Appeals. Defendant now argues that this procedure for recovering fees is not exclusive — that the district court can also award such fees.
We find that a trial court is not in a position to decide how the costs on appeal should be assessed under Supreme Court Rule 7.07(a), 228 Kan. liii, or whether an appeal was frivolous under Supreme Court Rule 7.07(b), 228 Kan. liii-liv. For a trial court to render an informed decision on the matter, it would have to study the appellate briefs, perhaps have a transcript of the oral arguments made before the appellate court, and study the appellate court’s opinion or memorandum to decide whether the court rested its decision on any of the parties’ arguments. The trial court would be asked to do what the appellate court is already in the position to do at the end of the appeal. The trial court’s decision would then, of course, be subject to appeal, bringing the matter back full circle. Also, the procedure suggested by defendant would put the trial court in the tenuous position of deciding whether an appeal from one of its own decisions was meritless or frivolous.
Defendant cites no direct authority to support her position that the trial court has jurisdiction to award attorney fees incurred in an appeal. The case law cited is not on point, and the reality of such a practice would be inefficient and would not advance the orderly administration of justice. It is our finding that the trial court does not have the jurisdiction to assess costs or attorney fees arising out of an appeal of a divorce action before a Kansas appellate court, or to determine whether the appeal was frivolous or whether it was carried far beyond a reasonable level. These matters are for the appellate court alone to decide as part of its appellate jurisdiction.
Affirmed.
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Abbott, J.:
The plaintiff, Thomas F. McGraw, III, Appeals in this quiet title action from an order granting summary judgment to the defendant, Premium Finance Company of Missouri, and ordering the real estate which was the subject matter of the quiet title action to be foreclosed and the proceeds from the sale applied to the payment of a judgment lien held by defendant.
This quiet title action was commenced because of a prior mortgage foreclosure action filed by Capitol Federal Savings & Loan Association which sought to foreclose a mortgage and note executed by Harold V. Hauser and to bar the other named defendants including plaintiff from claiming any right, title, interest or lien in the real property that is the subject matter of this action. The defendant, Premium Finance Company of Missouri (Premium), was not a party in the foreclosure action. Premium had previously obtained a judgment against Hauser in Missouri for $19,530.50 plus costs. The mortgage foreclosure action was commenced on March 30, 1978, some three weeks after Premium obtained the Missouri judgment against Hauser. Premium registered its Missouri judgment in Johnson County on July 11, 1978. On August 17, 1978, judgment was entered in the mortgage foreclosure action. The real estate was sold at a foreclosure sale on September 22, 1978. The plaintiff, McGraw, purchased the property at the foreclosure sale. Although disputed, the trial court found that Premium was not aware of the mortgage foreclosure action until a few days after it was completed.
After McGraw learned of Premium’s judgment lien, he filed this quiet title action seeking to quiet his title to the subject realty or, in the alternative, to have the court give Premium an opportunity to redeem the property from him. The trial court held that since Premium was not named, joined or made a party to the foreclosure action, it is not bound by or affected by the judgment and that Premium’s judgment is a first lien. The court ordered the property sold and after payment of taxes and costs Premium was to be paid its judgment, accrued interest and costs before McGraw would receive anything.
Stripping aside the legal issues, the net effect of the trial judge’s ruling is that it elevates Premium from near the bottom of the lienholders to the very top. If Premium had been a party to the mortgage foreclosure, it would not have received any of the money McGraw paid for the property. It, of course, would have had an opportunity to bid a larger sum than McGraw bid and could have protected its interest if it had been given an opportunity and had desired to do so. There were three other judgment lien creditors of Hauser’s in the mortgage foreclosure action, none of whom received any money, who would have shared equally with Premium if Premium had protected its lien. Thus, if the trial court correctly decided this case, Premium will move to the head of the line, passing three creditors who chose not to or were unable to protect themselves by bidding what McGraw bid plus the judgment liens. Premium would also move ahead of Capitol Federal and McGraw’s father, who held first and second mortgages respectively on the property and who were paid in full for their claims by McGraw. Since the trial court did not require Premium to redeem from McGraw or be barred from asserting its lien, Premium would also move ahead of the purchaser at the mortgage foreclosure sale.
McGraw contends K.S.A. 1980 Supp. 60-2414(o) prohibits a second sale of the real estate. His argument is that after the Supreme Court filed its opinion in Lenexa State Bank & Trust Co. v. Dixon, 221 Kan. 238, 559 P.2d 776 (1977), the legislature amended K.S.A. 60-2414(o) and effectively reversed that decision by barring all second sales regardless of whether a lien was adjudicated or unadjudicated. He also argues that the Lenexa State Bank case applies only to unadjudicated mechanics’ liens which attached prior to a foreclosure suit being commenced but not recorded until after the foreclosure. We disagree with both arguments.
When Lenexa State Bank was decided, K.S.A. 60-2414(o) provided:
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the six (6) months as hereinbefore provided.”
In Lenexa State Bank, the Supreme Court considered, along with other issues, the effect of the above statute on two mechanics’ liens that were effective prior to the date of a foreclosure judgment but were not filed until thereafter. Much of the language in Lenexa State Bank dealt with the special nature of mechanics’ liens. We are of the opinion, however, that Lenexa State Bank is much broader than McGraw suggests. The Supreme Court held:
“The upshot of the three cases is that in order to bar a junior lienor from foreclosing his lien and securing a second sale, if his lien exists when the senior lien is foreclosed and the senior lienor is on notice of its existence, the junior lienor must be made a party to the suit in which the senior lien is foreclosed. In that way the validity of the junior lien can be established and its priority determined — i.e., the lien can be ‘adjudicated.’ If that is done the junior lienor may make a meaningful bid at the foreclosure sale or he may redeem. If he does neither he has lost his opportunity to protect his lien, for under the nonresale statute he cannot secure a second sale.” 221 Kan. at 245-46.
The language of the opinion does not limit the decision to mechanics’ liens. More persuasive, however, is an analysis of the facts in the three cases relied on by the Supreme Court for its holding. Motor Equipment Co. v. Winters, 146 Kan. 127, 69 P.2d 23 (1937); McFall v. Ford, 133 Kan. 593, 1 P.2d 273 (1931); Stacey v. Tucker, 123 Kan. 137, 254 Pac. 339 (1927). Two deal with the rights of junior mortgagees and one deals with a judgment lien. None dealt with mechanics’ lienors. Lenexa State Bank applies to all junior liens and we reject McGraw’s argument to the contrary.
McGraw also argues that in the statutory phrase, “or any judgment or lien inferior thereto,” the word “any” means just that — any. The fallacy of that argument is that it is the same one that was, if not specifically then at least impliedly, rejected in Lenexa State Bank. The legislature did not change the applicable language as to this part of McGraw’s argument.
The legislature has amended the statute in question and it now reads:
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, including unadjudicated junior liens filed after the date of judgment in the district court to foreclose the senior lien against said real estate." K.S.A. 1980 Supp. 60-2414(o). (Emphasis denotes new language added to and replacing a portion of the amended statute.)
Our function is to reconcile statutory provisions so as to make them consistent, harmonious and sensible. E.g., Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 582 P.2d 1123 (1978). It is'presumed the legislature acted with full knowledge and information as to judicial decisions with respect to prior law. E.g., Bogers v. Shanahan, 221 Kan. 221, 565 P.2d 1384 (1976). Legislative history conclusively shows that the legislature amended the statute in direct response to the Lenexa State Bank decision and intended to modify at least part of that decision. The original provision in House Bill No. 2156 would have prohibited a second sale for unadjudicated junior liens filed after the petition had been filed. The House Committee on Judiciary amended that bill by deleting the phrase “petition has been filed” and substituting therefor “date of judgment.” The bill was reported out of committee and subsequently enacted in its amended form (L. 1977, ch. 207). As a result, we are of the opinion and so hold that a junior lienholder whose interest is of record prior to the date of judgment and who is not joined as a party in a mortgage foreclosure action is not barred by K.S.A. 1980 Supp. 60-2414(o) from a second sale of the real estate subject to the junior lien. The trial court so held and we affirm that part of the decision.
McGraw also contends the lis pendens statute (K.S.A. 1980 Supp. 60-2201) prevents a third person who subsequently acquired the interest of one or more of the parties to the mortgage foreclosure action from acquiring an interest in the subject matter of the mortgage foreclosure action under the facts before us. We believe the trial court correctly determined that the purpose of the lis pendens statute is to protect the plaintiff’s claim; i.e., the relief sought. Harrod v. Burke, 76 Kan. 909, 911, 92 Pac. 1128 (1907); St. John v. Strauss, 60 Kan. 136, 55 Pac. 845 (1899). The lis pendens protection is applicable only while the action is pending. Moorhead v. Guliford, 163 Kan. 730, 186 P.2d 275 (1947). Further, a finding that Capitol Federal’s foreclosure suit could in any way operate to extinguish or alter defendant’s interest in the subject realty is inconsistent with our holding that K.S.A. 1980 Supp. 60-2414(o) does not bar a second sale of the subject realty by defendant. The result would not be changed even if McGraw had been the original plaintiff in a suit to foreclose his mortgage. The conflict is not between lis pendens and K.S.A. 1980 Supp. 60-2414(o). Rather, as noted above, lis pendens is operative only pending litigation. If defendant had joined or been joined as a party during the pendency thereof, defendant’s interest would have been “adjudicated” and the pendency would have been effective as to it. But because defendant’s interest is clearly “unadjudicated” {i.e., unadjudicated in the prior foreclosure action), the suit is no longer pending and thus is ineffective as to defendant.
Having determined that Premium’s judgment lien can be foreclosed, we are presented with a question of priority. The issue of priority was not before the court in the Lenexa State Bank case and the court specifically so noted. The issue is properly before us, and we hold the trial court erred in ordering that Premium be allowed to resell the property and be the first paid (after taxes and expenses).
As we understand the law, the general rule is that one who purchases property at a mortgage foreclosure sale has the option of standing in the same position and having the same right as any mortgagee or lienholder whose interest is purchased. Smith et al. v. Shay et al., 62 Iowa 119, 17 N.W. 444, Annot., 73 A.L.R. 638 (1883). Equitable rights are involved; the court has great latitude in seeing that justice is done, and the general rule expressed above may be tempered if bad faith is involved. The general rule is expressed in 55 Am. Jur. 2d, Mortgages §§ 852, 853, 854, as follows:
“Where a senior mortgage has been foreclosed without the claimant of a subordinate title, lien, or interest having been made a party, the purchaser at the foreclosure sale is not without a remedy. Under appropriate circumstances, proceedings de novo to foreclose, or a suit to compel the junior lienholder to redeem, and, upon his failure to do so, to forever bar him from redemption, may be maintained. If the purchaser prefers, he may pay the amount of the junior lien and thereby prevent redemption or foreclosure.
“Generally, when a senior mortgage has been foreclosed and the holder of a junior lien has been omitted as a party, the purchaser at the foreclosure sale occupies the same position as the senior mortgagee. The former rights of the senior mortgagee may be enforced by such purchaser against the junior lienholder to the same extent as they could have been enforced in the original foreclosure had the junior lienholder been made a party thereto. The junior lienholder may defend to the same extent as if the irregular foreclosure had not occurred.
“A purchaser at a foreclosure sale under a senior mortgage, to which a junior mortgagee is inadvertently omitted as a party, may invoke the aid of equity in a suit to which the junior mortgagee is made a party, to compel him to exercise his right of redemption, or else have his right of redemption barred. . . .
“As a rule, ordinary negligence, inadvertence, or mistake in failing to include as a party to a judicial foreclosure suit the owner of a junior mortgage or lien will not, in the absence of bad faith, defeat the remedy of strict foreclosure as against such omitted party. So the fact that at the time of commencing the original foreclosure suit the mortgagee had constructive notice of the junior encumbrance or of the omitted party’s ownership of it has not been regarded as defeating the subsequent strict foreclosure where the purchase at the sale was made in good faith and in ignorance of the defect of parties. In general, however, the remedy of strict foreclosure will not be available against a junior encumbrancer omitted from the prior foreclosure suit if the omission was intentional on the part of the plaintiff, or, it seems, if the purchaser at the foreclosure sale had notice of the defect of parties. Certainly the remedy of strict foreclosure will not be available if the omission to make the junior encumbrancer a party to the prior foreclosure suit was made deliberately and in bad faith. Indeed a strict foreclosure cannot be had against a junior encumbrancer omitted from the prior judicial foreclosure and sale if under the circumstances it would be inequitable.”
The Kansas Supreme Court considered the position of a senior mortgagee who foreclosed his mortgage and purchased the property at sheriff’s sale without making a junior mortgagee a party in Stacey v. Tucker, 123 Kan. 137. The junior mortgagee made the same argument that Premium now makes; i.e., that the senior mortgage (lesser estate) merged with the fee title (greater estate) and thus the junior lienholder who was not made a party to the suit advanced to the status of a first lien. Our Supreme Court held that although the general rule is that a lesser estate merges with the greater, it does not apply when not in the best interest of the owner. The court went on to say that whether or not a senior mortgage is merged in the title to the property sold at a mortgage foreclosure sale is to be determined from the intention of the purchaser, and that intention is not to be presumed to be contrary to the owner’s apparent interest with respect to others claiming an interest in the property.
In Bank v. Bank, 103 Kan. 865, 176 Pac. 658 (1918), a bank as a second mortgage holder took a deed in full satisfaction of its mortgage and assumed a first mortgage. Another bank was holding a third mortgage on the property. The first bank which originally held the second mortgage brought an action to compel the third mortgage holder to redeem or be barred on its lien. The trial court gave the third mortgage holder six months to redeem. The court stated:
“Rule followed that where the equitable rights of the holder of a mortgage, who afterwards procures the fee title of property, require that those interests be kept separate, the mortgage and the fee title do not merge against the will of the holder.” 103 Kan. 865, Syl. ¶ 3.
In United States v. Leckington & Sons, Inc., 237 F. Supp. 564 (D. Kan. 1965), the Small Business Association (SBA) foreclosed its first mortgage and failed to join a number of judgment creditors. The SBA brought a quiet title action, as did McGraw in this case, and in the alternative requested that if the judgment lien-holders had redemption rights that they be compelled to exercise them within thirty days or be barred from doing so. The federal court held that the judgment lienholders were not elevated to the status of first lienors as against SB A and gave the judgment holders sixty days to redeem the property or be barred.
We recognize there might be circumstances when it would be necessary for the trial court to order the real estate sold a second time so as to protect a lienholder. If such a sale is deemed necessary, the trial court should set priorities in accordance with this opinion. In most cases a lienholder will be adequately protected by the trial court’s setting a redemption period in which the lienholder must redeem the property or be barred from enforcing a lien against the real estate involved. In this case, the trial court did not consider the possibility of setting a redemption period by reason of his having held that Premium was the first lienholder. Thus, we conclude the trial court erred in ordering the property sold without first considering whether Premium would be adequately protected by setting a redemption period in which Premium must redeem the property or be barred from enforcing its judgment lien against the real estate involved in this case.
Affirmed in part and reversed in part with directions either to order a second sale or to set a reasonable redemption period for Premium.
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Innes, J.:
This is an appeal from a judgment of the district court which resulted in the dismissal of an appeal to the district court of the appraisers’ award in a condemnation proceeding. The district court held that, since the notice of appeal was not filed within thirty days from the filing of the appraisers’ report as required by K.S.A. 26-508, the court lacked jurisdiction to hear the appeal.
There is no dispute as to the facts. On September 30, 1980, the appellee, City of Kansas City, Kansas, filed an eminent domain proceeding pursuant to K.S.A. 26-201 et seq. to acquire easements to lands, or interest and rights therein. There were numerous defendants named in the petition, one of which was the appellant, Crestmoore Downs, Inc. The condemnation proceeding, which apparently was proper in all respects, resulted in an appraisers’ award to the appellant of $37,500. The appraisers’ report was filed on December 22, 1980.
Upon learning of the appraisers’ award, Joseph A. Maderak, an officer of the appellant, contacted an attorney on January 6, 1981. The attorney, who professed to specialize in eminent domain proceedings, agreed with Maderak to represent the appellant and thereafter departed for a family vacation on January 10, 1981. He returned on January 19, 1981. The vacation was prompted by the attorney having experienced the untimely deaths of his father and father-in-law within a sixty-day period the summer of 1980.
Upon appellant’s attorney returning from his vacation, he received a copy of a letter from appellee’s attorney advising that appellee had paid the money into court, and that the appellant had the right to appeal the award. The payment of the award appears to have occurred approximately twenty-five days after the filing of the appraisers’ report.
In anticipation of perfecting an appeal for appellant, counsel relied on the date of the letter rather than the date the appraisers’ report was filed in calculating the thirty-day period for the filing of the notice of appeal. On Saturday, January 24, 1981, counsel discovered he had confused the two dates and on Monday, January 26, 1981, immediately filed the notice of appeal from the award and notified opposing counsel of the circumstances.
On January 30, 1981, counsel for appellant filed a motion seeking permission to file its appeal out of time. The motion alleged excusable neglect pursuant to K.S.A. 60-260(b) and/or requested an enlargement of the time for filing the appeal as provided by K.S.A. 60-206(b). In support of the motion, the appellant filed a sworn affidavit of appellant’s counsel reciting the circumstances surrounding the failure to file the notice of appeal.
Although proffered, the district court refused to consider appellant’s counsel’s affidavit and ruled that the district court was without jurisdiction to enlarge the appeal period of K.S.A. 26-508.
The appeal period from appraisers’ awards is controlled by K.S.A. 26-508, which provides in part:
“If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, he may, within thirty (30) days after the filing of the appraisers’ report, appeal from the award by filing a written notice of appeal with the clerk of the district court.”
The procedural remedies sought by the appellant were K.S.A. 60-206(b) and K.S.A. 60-260(b). K.S.A. 60-206(b) states:
“When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in the judge’s discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under K.S.A. 60-250(¿), 60-252(b), 60-259(b), {d) and (e) and 60-260(b) except to the extent and under the conditions stated in them.” Emphasis added.
K.S.A. 60-260(2?) states in pertinent part:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . .”
The crux of the appellant’s first contention is that the trial court had authority to extend the time for appeal under K.S.A. 60-206(2?). A careful reading of the statute contradicts such a contention. K.S.A. 60-206(2?) allows enlargement of time only in acts under Chapter 60. Eminent domain actions arise from Chapter 26. Therefore, K.S.A. 60-206(2?) does not apply.
The appellant does cite Collart v. State, 456 P.2d 480 (Alaska 1969), which is a case with almost identical facts. There the plaintiff’s appeal was filed several days late and the trial court granted the defendant-State’s motion for dismissal, holding the time for appeal was jurisdictional. The Supreme Court reversed, holding Civil Rule 6 (b) [same as K.S.A. 60-206(2?)] allowed a court to enlarge the time for appeal, and remanded the case for a trial court to determine if there was excusable neglect.
Alaska Stat. § 09.55.320 (1973) bestows appellate jurisdiction on the Alaska courts from a master’s appraisal of property in eminent domain proceedings. The statute does not set forth time limitations for the appeal. In the Alaska Rules of the Court, promulgated by the Alaska Supreme Court, Civil Rule 72 (h) (4) sets forth the time to appeal from the appraisal of a master in eminent domain proceedings. It appears therefore that Civil Rule 72 (h) (4) is subject to Civil Rule 6(b), which allows enlargement of any time limitations in the civil rules except a few provisions not applicable here. The time limitations of K.S.A. 26-508, on the other hand, because they are not part of Chapter 60 and appear to be jurisdictional in nature, are not subject to K.S.A. 60-206(2?), the Kansas counterpart of Alaska’s Civil Rule 6 (b). Thus, Collart v. State, upon close analysis, is not persuasive in Kansas.
Appellant’s second contention is that the trial court erred in refusing to apply K.S.A. 60-260(2?)(l) and allow appellant to proceed despite excusable neglect. The excusable neglect in this case was the attorney’s failure to timely file a notice of appeal. Assuming arguendo that K.S.A. 60-260(2?) may be applied to awards from appraisers under K.S.A. 26-501 et seq., the appellant’s contention is without merit. Federal interpretation of the rules of civil procedure are persuasive authority in Kansas. Henderson v. Hassur, 1 Kan. App. 2d 103, 107, 562 P.2d 108 (1977). In 11 Wright & Miller, Federal Practice and Procedure: Civil § 2858 (1973), p. 169, the federal approach concerning this issue was discussed:
“The instances just discussed evidence the liberality with which courts have applied this portion of the rule. In the words of one court:
‘Rule 60 (b) and its counterparts in state statutes, have proven themselves to be valuable, equitable and humane discretionary powers by which courts have been able to relieve the oppressed from the burden of judgments unfairly, fraudulently or mistakenly entered.’
But the court went on to say that it would be a perversion of the rule and its purpose to permit it to be used to circumvent another rule. Thus it refused to reopen a judgment when the only ‘excusable neglect’ to which the party could point was that he had failed to take an appeal within the time the rules allow.”
Citing Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (E.D. Wis. 1956). Thus it may be stated that there was no excusable neglect in this case as a matter of law. Even if the trial court erred in refusing to consider the motion under K.S.A. 60-260(h), such error is harmless as it should have been denied in any event. K.S.A. 60-2105.
Appellant’s final contention is that K.S.A. 60-206(b) might apply through the appeal statute of K.S.A. 1981 Supp. 60-2101(d).
K.S.A. 1981 Supp. 60-2101(d) states:
“A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require. A docket fee shall be required by the clerk of the district court as in the filing of an original action.” Emphasis added.
Here, K.S.A. 26-508 provides the means for appeal, so K.S.A. 1981 Supp. 60-2101(d) does not apply. Therefore, K.S.A. 60-206(b) cannot apply.
Affirmed.
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Holmes, J.:
Hays House, Inc., a corporation, arid Helen E. Judd and Charles L. Judd, both individually, plaintiffs below, appeal from a jury verdict and the judgment entered thereon in favor of Craig Eugene Powell, defendant below, on his counterclaim. The original action filed by the plaintiffs was based upon an alleged breach of a contract entered into by plaintiffs with the defendant. Defendant’s counterclaim asserted plaintiffs had breached the contract and also sought actual and punitive damages for conversion of his inventory and for what was alleged to be the wrongful obtaining of a restraining order by the plaintiffs. The rather complicated facts need to be set forth at some length.
Hays House, Inc., is a Kansas corporation owned by Charles L. Judd and his wife, Helen E. Judd. For several years, the Judds and Hays House, Inc. operated a restaurant and private club in Council Grove known as the Hays House and Hays Tavern. The Judds desired to slow down their activities and sought to find a suitable person to take over the restaurant and club. Craig Eugene Powell, a resident of Texas, with training and experience in restaurant operations, was familiar with the Hays House and Hays Tavern and was put in contact with the Judds. The parties reached an agreement and entered into a written “Contract For Management” effective March 1, 1979. Powell entered into possession of the business on that date and continued to operate it until August 2, 1979, when he was ousted from the premises pursuant to a restraining order issued by the district magistrate judge in Morris County. The contract granted Powell possession of the premises on a year-to-year basis, together with broad discretion in the operations of the business in return for certain monthly payments to be made by Powell to the plaintiffs. In July, 1979, the Judds became dissatisfied with Powell’s operation of what had long been their business and sought to terminate the agreement with Powell. The Judds asserted that Powell was violating the agreement and indicated they were going to personally resume the management and operation of the restaurant and club. Powell was not willing to terminate the agreement unless the Judds would pay him $5,000.00. The Judds, being of the opinion that Powell owed them money rather than vice versa, filed suit on August 2, 1979, seeking, inter alia, termination of the contract and damages due to the alleged breaches by Powell. At the same time the district magistrate judge, at the request of plaintiffs, issued a temporary restraining order which provided in part:
“IT IS THEREFORE ORDERED that the defendant, Craig Eugene Powell, be and hereby is ordered to refrain from being, remaining or entering upon the premises of the Hays House Restaurant and Hays Tavern in Council Grove, Kansas . . . .”
The restraining order was served upon Powell along with a copy of the petition late in the afternoon of August 2,1979. At that time a meeting was held at the Hays House between the Judds and their attorney on the one hand, and Powell and his attorney on the other. Powell’s counsel voiced the opinion that the restraining order ousting Powell from the premises was probably illegal and asserted the Judds could be held liable for actual and punitive damages if they proceeded with their attempt to exclude Powell from the premises. The Judds were not intimidated and Powell was required to leave the restaurant and club. Three or four days later Powell left Council Grove and took no further action to set the restraining order aside or recover possession of the business. On August 14, 1979, Powell filed an answer in which he asserted that he was the lessee of the premises; that the agreement between the parties was a real estate lease; that he had not breached the agreement; and that the plaintiffs were guilty of breach of contract, had converted his inventory, and had wrongfully obtained the restraining order. In his counterclaim he sought actual and punitive damages. The cause of action based upon the restraining order was ultimately submitted to the jury on the theory that it was a cause of action for malicious prosecution. After lengthy pretrial proceedings, the matter came to trial before a jury and it awarded the defendant actual damages of $24,552.37, and punitive damages of $20,000.00 for a total of $44,552.37. The trial judge, sua sponte, reduced the award to $39,552.37 after determining that the punitive damages, which included $15,000.00 for obtaining an illegal restraining order, exceeded the amount included in the pretrial order by $5,000.00. The plaintiffs have appealed from the judgment entered by the court and defendant has cross-appealed from the $5,000.00 reduction of the jury award made by the trial court and from a trial court order denying defendant an allowance of attorney fees. The defendant also lodges a jurisdictional attack upon the motion for new trial and the appeal filed by plaintiffs. Additional facts will be developed as they become relevant to the opinion.
At the outset we will address the jurisdictional issue raised by appellee. Appellee asserts the trial court committed error in failing to strike the appellants’ motion for a new trial and as a consequence argues that this court has no jurisdiction to hear the appeal. On May 1, 1980, the jury returned its verdict; on May 6, 1980, the motion for new trial was filed; on May 27, 1980, the court granted judgment and on July 9, 1980, the judgment was docketed. It was not until October 28, 1980, that the motion for a new trial was overruled. It is appellee’s contention that the premature filing of the motion for a new trial was ineffective and consequently no valid new trial motion was ever filed. We do not agree. K.S.A. 60-259(b) states “A motion for a new trial shall be served not later than 10 days after the entry of judgment.” Appellee relies upon several Supreme Court cases which hold that a motion for a new trial filed out of time is a nullity. See City of Leavenworth v. Pennington, 146 Kan. 459, 72 P.2d 78 (1937); Oliver Farm Equipment Co. v. Foster, 134 Kan. 654, 8 P.2d 364 (1932). In the Kansas cases relied upon by the appellee the motion was filed too late.
We are faced with the question of whether a motion for a new trial filed prematurely is a nullity. In Railway Co. v. Davis, 70 Kan. 578, 79 Pac. 130 (1905), the motion for a new trial was filed simultaneously with the return of the jury verdict. Our Supreme Court said:
“Granting that a motion for a néw trial filed while the jury [is] still out is not entitled to consideration, no occasion for the application of the principle is here shown. The return of the findings and the filing of the motion were practically simultaneous, and, especially in view of the fact that the court heard and decided the motion upon its merits instead of striking it from the files or refusing to consider it, it will be treated as having been filed at a proper time.” p. 581.
A similar situation exists in this case. The motion was filed after the jury verdict but before the entry of judgment on that verdict and Subsequently the trial court heard the motion on its merits. In an analogous situation, Rule 2.03 (228 Kan. xxxix) provides:
“A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in Sec. 60-258, shall be effective as notice of appeal under Sec. 60-2103, if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance filing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with Sec. 60-2103(5).”
We conclude that a motion for a new trial filed subsequent to the rendering of a jury verdict but prior to the actual entry of judgment thereon is timely filed. The trial court was not in error in refusing to strike plaintiffs’ motion for a new trial and hence, this court has jurisdiction to hear the appeal.
We now turn to the substantive issues involved in the appeal and cross-appeal. Appellants list some twelve issues wherein they allege the trial court committed reversible error. In their motion for a new trial, thirty-three grounds of error were enumerated. It is to be noted, however, that the crux of this entire case hinges upon the issues surrounding the issuance of the initial restraining order and the manner in which it was handled by the trial court. At the close of plaintiffs’ case the court found that the previously quoted portion of the restraining order was invalid and had been wrongfully obtained by the plaintiffs. The defendant was then allowed to proceed on the theory that the obtaining of the restraining order constituted malicious prosecution. At the completion of the trial the court determined that all issues growing out of the contract between the parties and the events subsequent to the execution of the contract would be submitted to the jury. As a result the court, after having found that a portion of the restraining order was invalid, so instructed the jury and then instructed them on defendant’s theory of malicious prosecution. This was clearly error which, in our opinion, requires that this case be remanded for a new trial on all issues.
Among the instructions given by the court were:
“Instruction No. 17
“To maintain an action for improperly obtaining the order ordering defendant to leave the premises (malicious prosecution) the defendant must prove that the plaintiffs instituted the proceeding of which complaint is made and that the plaintiffs in so doing acted without probable cause and with malice.
“Instruction No. 18
“In this case the Court has ruled as a matter of law that part of the order dated August 2, 1979 and which was marked as defendants exhibit No. 18 was an order improperly procured by the plaintiffs in so far as it required the defendant to leave the premises and that defendant could not be required to leave by such order.”
In the recent case of Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980), the Supreme Court discussed at length the elements and basic principles of law to be applied in an action for malicious prosecution of a civil case. The court stated:
“(2) To maintain an action for malicious prosecution of a civil action the plaintiff must prove the following elements:
(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.
(b) That the defendant in so doing acted without probable cause.
(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.
(d) That the proceeding terminated in favor of the plaintiff.
(e) That the plaintiff sustained damages. See Restatement (Second) of Torts § 674 (1976); Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P.2d 269 (1970); Investment Co. v. Burdick, 67 Kan. at 337; Malone v. Murphy, 2 Kan. 250 (1864).
“(11) As noted above, one of the elements of an action for wrongful use of civil proceedings is that the prior civil proceeding must have terminated in favor of the person against whom the prior civil action was brought. The action cannot be brought if the original action is still pending and undetermined. Harper v. Cox, 113 Kan. 357, 214 Pac. 775 (1923).” pp. 276, 280.
In H & H Farms, Inc. v. Hazlett, 6 Kan. App. 2d 263, 627 P.2d 1161 (1981), we had occasion to consider whether a claim for malicious prosecution could be the proper subject of a counterclaim and stated therein:
“Kansas law is well settled that one of the crucial elements of an action for wrongful use of civil proceedings is that the prior civil proceeding must have terminated in favor of the person against whom the prior civil action was brought, and that the action cannot be brought if the original action is still pending and undetermined. See Nelson v. Miller, 227 Kan. at 280; Harper v. Cox, 113 Kan. 357, 214 Pac. 775 (1923). Although Kansas courts have not ruled on the specific question of whether a malicious prosecution claim can be brought in a counterclaim, other courts have had opportunity to address the issue. Prosser on Torts § 120, n.32 (4th ed. 1977) states the general rule that a plaintiff must prove the termination of former proceedings in his favor and that this requirement ordinarily makes the counterclaim for malicious prosecution in the original civil action premature. See American Salvage and Jobbing Co., Inc. v. Salomon, 295 So. 2d 710 (Fla. Dist. Ct. App. 1974); Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970); Peisner v. Detroit Free Press, 68 Mich. App. 360, 242 N.W.2d 775 (1976). Furthermore, a plaintiff’s cause of action for malicious prosecution does not accrue until the time for appeal has passed on the original action. See Rich v. Siegel, 7 Cal. App. 3d 465, 86 Cal. Rptr. 665 (1970).
“. . . We hold that a claim for malicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of the termination of the former proceeding in favor of the defendant.” pp. 269, 271.
In the instant case the question of the propriety of plaintiffs securing the restraining order and the counterclaim based upon malicious prosecution so permeated all of the proceedings that a new trial upon all the issues is required. K.S.A. 1980 Supp. 60-2101(a).
As it is our determination that this case must be remanded for a new trial we point out, as the trial court did, that this is a case which should have been and should now be settled. Many of the alleged contract breaches asserted by plaintiffs are nothing more than petty gripes about how the defendant was managing the business which was placed in his hands for that purpose. On the other hand, it appears obvious from the exhibits that defendant was losing money in his operation of the business. When served with the restraining order it would appear that he saw an opportunity to get out of what was developing into a losing proposition. If defendant was of the opinion that he could profitably continue the operation of the business, he could have taken steps to seek an immediate dissolution of the restraining order and thereby mitigate any damages he might have sustained. No such action was taken. As the management contract has long ago expired by its own terms, it is presumed that the plaintiffs have made other arrangements for the continuance of the business.
In view of our conclusions reached in this matter, it is not necessary that we address other issues raised by the parties.
The judgment is reversed and the case is remanded to the district court for a new trial on all issues except that of malicious prosecution.
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Gernon, J.:
In this appeal, Arza B. Fogle challenges the district court’s decision to hear and grant a motion to modify a partial guardianship and conservatorship to one which granted full power. Fogle moved to set aside the order granting full power, which the court denied. Fogle appeals.
Fogle’s nephew, Frank D. Fogle, filed a petition for the appointment of a guardian and conservator for Fogle on April 30, 1990. The district court, pursuant to K.S.A. 59-3010, issued preliminary orders setting a hearing date, appointing an attorney for Fogle, and ordering Fogle to consult with his attorney. Fogle, Frank Fogle, and the guardian ad litem were each sent notice of the hearing.
A hearing was held on May 9, 1990. An order on this hearing was not issued until January 4, 1991. The court found that Fogle was a disabled person in certain respects and appointed a limited guardian and limited co-conservators. According to the record, no letters of guardianship or conservatorship were issued.
On March 4, 1991, a motion was filed by the limited guardian, asking the court to modify the order of limited guardianship and conservatorship by granting full powers of guardianship and conservatorship.
The hearing on the March 4 motion was held on March 6, at which the court granted the motion. The order was filed on March 7. No order directing Fogle to appear at the March 6 hearing or requiring him to submit to a mental evaluation was issued by the court. Nor was any other order listed in K.S.A. 59-3010 issued for this hearing.
At the May 9, 1990, hearing, Frank testified and expressed concern about the health, personal hygiene, and food intake of Fogle. He also stated that much of the time Fogle was “capable,” and other times he was not. He stated that Fogle had begun receiving Meals on Wheels five days a week and that this had helped significantly. Fogle’s physician sent a letter which stated he had noted progressive deterioration in Fogle’s mental functions. Fogle was 89 years old at the time of the 1990 heáring.
At the March 6, 1991, hearing, the guardian ad litem for Fogle testified that Fogle was notified of the hearing by his office. When the guardian ad litem arrived to pick Fogle up for the hearing, Fogle informed the guardian ad litem that he was expecting Governor Finney to come to his house and, therefore, he would stay and wait for her. The guardian ad litem then went to the hearing without Fogle.
On July 9, 1991, Fogle filed a petition to set aside the order appointing a guardian and conservator. On July 10, 1991, the guardian and conservator petitioned the court for placement of Fogle in a treatment facility. The court then ordered an evaluation and, at a later hearing held on August 16, 1991, ordered that Fogle be placed in a nursing home. At this hearing, the court found that Fogle’s presence at the hearing would be injurious to his health. At the August 29, 1991, hearing, counsel for Fogle argued that the court did not have jurisdiction to hear the motion to modify held on March 16, 1991.
The district court denied the petition to set aside the guardianship and conservatorship. Fogle appeals.
Fogle filed his petition more than 30 days after judgment; therefore, according to K.S.A. 59-2213, he must proceed under K.S.A. 60-260(b)(4) in order to vacate or modify the judgment. K.S.A. 60-260(b)(4) states: “On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void.”
Here, Fogle contends the judgment is void because the trial court did not follow the procedures set out in K.S.A. 59-3010(a), specifically (2) and (6), which state:
“Upon the filing of the petition provided for in K.S.A. 59-3009 and amendments thereto:
(а) When the proposed ward or proposed conservatee is alleged to be a disabled person, the district court shall issue the following:
(2) An order that the proposed ward or proposed conservatee appear at the time and place of the hearing unless the court enters an order that the presence of the proposed ward or proposed conservatee is injurious to the welfare of the proposed ward or proposed conservatee. The court shall enter in the record of the proceedings the facts upon which the court has found that the presence of the proposed ward or proposed conservatee at the hearing would be injurious to such person’s welfare. Notwithstanding the foregoing provisions of this subsection, if the proposed ward or proposed conservatee requests in writing to the court or to such person’s attorney that such person be present at the hearing then such person’s presence cannot be waived.
(б) An order for mental evaluation. Such order may be served on the proposed ward or proposed conservatee at the same time or after notice is given. It shall be served in the manner provided for in K.S.A. 59-3012 and acts amendatory thereof. It shall order the proposed ward or proposed conservatee to submit for a mental evaluation and to undergo such evaluation at a general hospital or a psychiatric hospital, an institution within the department of social and rehabilitation services, mental health clinic, private psychiatrist or physician designated by the court in the order.”
The question then becomes: Are these procedures mandatory or directory, and, if mandatory, were they followed in this case?
We must recognize at this point the distinction between a void judgment and one which is erroneous. “A judgment is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner incon sistent with due process.” Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 300, 720 P.2d 1121 (1986).
The determination of whether a statute is mandatory or directory was analyzed in Wilcox v. Billings, 200 Kan. 654, 657-58, 438 P.2d 108 (1968), which states:
“No absolute test exists by which it may be determined whether a statute is directory or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. Certain rules and aids to construction have been stated. The primary rule is to ascertain legislative intent as revealed by an examination of the whole act. Consideration must be given to the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other. It has been said that whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and a statute is regarded as directory where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. On the other hand, a provision relating to the essence of the thing to 'be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power or must be performed before certain other powers can be exercised, the statute must be regarded as mandatory. [Citation omitted.]”
The essential question is whether failure to comply with the mandatory notice provisions of K.S.A. 59-3010 results in the order issued being void.
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. 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. [Citations omitted.]” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
Words used in statutes are to be given their ordinary meaning. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 635, 694 P.2d 462 (1985). As used in statutes, the word “shall” is generally imperative or mandatory. Black’s Law Dictionary 1375 (6th ed. 1990).
Initially, it must be noted that the section heading for K.S.A. 59-3010 states: “Mandatory preliminary orders; hearing on petition, time limits.” “Though the heading or title given an act of the legislature forms no part of the statute itself, [citation omitted], the language . . . cannot be ignored as aii aid in determining legislative intent.” Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 846, 610 P.2d 1107 (1980).
Several other statutes must be considered in order to reconcile these statutes and to determine if they can be read in harmony. K.S.A. 1991 Supp. 59-3014(d) states in part:
“If the court, pursuant to K.S.A. 59-3013 and amendments thereto, has made a finding that a disabled person is able to and should be permitted to make some decisions which affect the person, a guardian shall be appointed and ‘Letters of Limited Guardianship’ shall specify which of the powers and duties of a guardian shall be assigned to the limited guardian. ... If the court, pursuant to K.S.A. 59-3013 and amendments thereto has made a finding that a disabled person is able to and should be permitted to make some decisions which affect the person’s property, a limited conservator shall be appointed and the ‘Letters of Limited Conservatorship’ shall specify which of the powers and duties of a conservator shall be assigned to the limited conservator.”
The Kansas Supreme Court has stated the provisions of K.S.A. 1991 Supp. 59-3009, which dictate what the petitioner must do in applying for the appointment of a guardian or conservator, are jurisdictional. In re Stremel, 233 Kan. 136, 141, 660 P.2d 952 (1983). We hold the same can be said for the notice provisions of K.S.A. 59-3010. The failure to comply with that statute deprives the court of jurisdiction over the person of the proposed ward and/or conservatee. Failure to comply, i.e., the failure to give notice and the opportunity to defend, is a deprivation of due process.
K.S.A. 1991 Supp. 59-3018(a) states in part: “In carrying out these duties and powers, the guardian shall assure that personal, civil and human rights of the ward or minor whom the guardian services are protected.”
Given this specific legislative charge, read with the language concerning the narrow scope of “limited” guardianships and conservatorships and adding consideration of the language of K.S.A. 59-30.10, i. e., “mandatory,” “shall issue,” and “presence cannot be waived,” it is our conclusion that a court cannot convert a ‘limited” guardianship or conservatorship to a guardianship or conservatorship with full powers without complying with the provisions of K.S.A. 59-3010.
We find that the provisions of K.S.A. 59-3010 are mandatory. Here, all orders issued subsequent to, and related to, the March 6, 1991, hearing on the motion to convert the limited powers to full powers are void. However, we also find that the actions of the fiduciary since March 6, 1991, were done under the color of authority granted by the district court and, if otherwise in compliance with the statutes, are valid. 59-3010.
To hold otherwise would invite a situation where someone with a temporary or very limited disability might have a “limited” proceeding converted to a more general one without a hearing, evaluation, opportunity to be heard, notice, or representation. Our reading of K.S.A. 1991 Supp. 59-3018, in pari materia, leads us to conclude that the legislature expressed a different intent. We believe the legislature recognized, as we do, that the courts must assure not only that “personal, civil and human rights” are protected, but also that due process rights be recognized and basic human dignity be preserved whenever possible, for as long as possible.
Accordingly, we find the orders which converted the limited guardianship and conservatorship concerning Arza B. Fogle to be void. We remand with directions to the district court to terminate the conservatorship and guardianship and require an accounting.
Reversed and remanded with directions.
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Brazil, J.:
In a boundary line dispute, Jerrye Akers appeals the finding of the district court that a backyard privacy fence is the boundary between her and her neighbor Marian B. Allaire’s property, notwithstanding the record title. Akers contends Allaire did not establish the elements necessary to prove her claim of ownership by adverse possession based on “belief of ownership” and the the district court’s finding is not supported by substantial competent evidence. We affirm.
Allaire acquired her property in June 1966, and Akers acquired the adjoining property in June 1976. A chicken/hog wire fence separated the two back yards when Allaire moved onto her property in 1966. Akers testified at trial that, when she bought the property, she did not check to see if the chicken/hog wire fence was on the property line. Allaire testified that she believed and acted as if the fence was the property line. In fact, the fence was approximately 10 feet west of the common north-south boundary line between the properties. There was no testimony as to the date of installation or the purpose for which the chicken/hog wire fence was built.
In 1980, there was a chain link fence built on the identical line of the chicken/hog wire fence by Allaire’s son. Akers testified that she intended to measure the property line and put the fence “where it should be.” However, Akers never communicated to Allaire that she thought the fence was not on the property line.
In October 1987, Allaire installed a cedar privacy fence about three feet east of the chain link fence. The cedar privacy fence and the chain link fence separate the back yards of the two properties. The dispute between Allaire and Akers arose some time after the cedar privacy fence was installed.
The trial court prepared and issued its findings of fact and conclusions of law. The court found: The chain link fence and cedar privacy fence are on Akers’ property; the line fixed by reference to the chicken/hog wire fence has been openly, exclusively, and continuously occupied undisputed and in good faith by Allaire for more than 15 years; and the chain link fence line has been relinquished in favor of the cedar privacy fence line. The court therefore ordered the cedar privacy fence to be the boundary between Akers’ and Allaire’s property notwithstanding the platted boundary line.
Akers claims Allaire failed to establish the elements necessary to prove her claim of ownership by adverse possession based on “belief of ownership.”
K.S.A. 60-503 reads:
“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.”
Akers questions whether the good faith belief has been sufficiently established.
Wallace v. Magie, 214 Kan. 481, Syl. ¶ 4, 522 P.2d 989 (1974), defined “ ‘[b]elief of ownership’ under K.S.A. 60-503 [as] a state of mind which must be based on good faith under circumstances which justify such belief.” Further, the good faith belief in ownership must be reasonable. Armstrong v. Cities Service Gas Co., 210 Kan. 298, 309, 502 P.2d 672 (1972).
Allaire believed and acted as if the chicken/hog wire/chain link fence was the property line from June 1966 until litigation of the instant case. Allaire has had exclusive control and use of the property inside the fence line since June 1966. She maintained the grass on her side of the fence. She stated she did not know the property line was someplace other than the fence line until two years ago.
Akers’ counsel attempted to disprove Allaire’s good faith belief of ownership during Allaire’s cross-examination. The essence of Allaire’s testimony was that Allaire was not in hostile possession of Akers’ property, or, in Allaire’s words, it was not her intent to steal any of Akers’ property. Allaire’s testimony does not impeach her good faith belief. Allaire testified she had always acted as if, and believed, the chicken/hog wire/chain link fence was the property line since June 1966. The fact that Allaire was later informed by a survey of the property that the chain link fence was not on the property line does not impeach her good faith belief.
Akers stated that, in 1980, she did not have any reason to believe the chicken/hog wire fence was not the boundary line. The absence of complaint on the part of Akers when the chicken/ hog wire fence was replaced by the chain link fence, or at a later date when Allaire placed a cedar privacy fence on Allaire’s side of the chain link fence, further demonstrates the good faith of Allaire. There was sufficient evidence to establish Allaire’s good faith belief of ownership.
Additionally, Akers contends that the evidence does not support the court’s conclusion that Allaire was in open, exclusive, and continuous possession of the property east of the privacy fence for 15 years. This claim is also without merit.
The original chicken/hog wire fence was replaced in 1980 by a chain fink fence. The chain link fence was put on the identical line as the chicken/hog wire fence. Then, in 1987, a cedar privacy fence was put three feet east of the chain link fence and thus is closer to Allaire’s home.
Allaire moved into her home in June 1966. She acted in all respects as if the chicken/hog wire fence was the property line. She has always believed the chicken/hog wire fence to be the property line. The chain link fence that replaced the chicken/hog wire fence was installed on the same line as the chicken/hog wire fence. Akers never did anything to cause Allaire to believe Akers did not think the chicken/hog wire fence was on the property line.
Allaire exercised her control of the strip of land in dispute by placing a cedar privacy fence three feet east of the chain link fence. Allaire testified no one but her has had the use and enjoyment of the property on her side of the chicken/hog wire and subsequent fences since June 1966. She further testified she has never tried to conceal or act in a way to cause someone to believe that she did not have exclusive use of the property.
Akers attempts to use a portion of finding No. 7 of the court to prove Allaire’s possession was not open, exclusive, and continuous for more than 15 years. Finding No. 7 states: “There has not been exclusive open continuous possession of that portion of the front yard bounded by the post and rail fence for 15 years. The neighborly act of mowing the lawn was neither possessive nor continuous.” Obviously, this statement was in reference to the front yard. That portion of land being retained by Akers is not an issue on appeal.
Allaire met the statutory requirements under K.S.A. 60-503; she has been in open, exclusive, and continuous possession of the land in dispute under a good faith belief of ownership for well over 15 years. Therefore, the trial court’s finding that the cedar privacy fence is the boundary between Akers’ and Allaire’s property is supported by substantial competent evidence.
Affirmed.
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Davis, J.:
The defendant, Edward E. Holloman, appeals his robbery conviction, claiming that the court should have excluded eyewitness identification testimony because the police procedures used were impermissibly suggestive. He also contends that the failure to give a lesser included offense instruction and a burden of proof instruction on alibi defense requires reversal. Finally, he claims the evidence is insufficient to support his conviction. We affirm.
On January 25, 1991, about 1:30 p.m., The Gap store in White Lakes Mall shopping center was robbed. The assistant manager, Amy Snow, was the only employee working that day. Just before the robbery, Snow saw an individual walk by the front of the store. She became suspicious because he had on sunglasses and a stocking cap and did not look like most of the people who normally shop at the mall. She was going to call the mall security but did not when the person proceeded on. Shortly thereafter, the robber came around the comer into the store and stated he had a gun and would shoot her if she did not give him the money or if anyone came in during the robbery. He also counted backwards from ten to one while waiting for the money. Snow gave the robber a money bag containing $225 in currency. After the robber left the store, she called security.
Two off-duty police officers, Sergeant Gary Harmon, who was working security at the mall, and Corporal Frank Gregg were at the mall when the call came through. They spoke with Snow, who told them a black male with a blue stocking cap and blue jeans had robbed the store. She stated he had left the mall through the southwest doors. Snow also told the police that the robber wore a black cotton jacket zipped up the front, mirror-like sunglasses that looked like ski goggles, a dark stocking cap with red and white stripes at the bottom, denim blue jeans, and a black glove on the left hand. She told the officers that the robber smelled like cooking grease and had a soft voice with a kind of nasal, black accent.
Officers Gregg and Harmon left the mall by the southwest doors and found one set of fresh shoe prints in the snow leading away from the mall. They continuously followed the prints, arriving at 1014 Southwest 33rd Street, where the shoe prints stopped. Other officers and law enforcement units responded to the area and helped to set up a perimeter around the residence to observe anyone entering or leaving the residence.
Bertha Holmes, one of the residents of the house and defendant’s mother, gave her consent for the police to search the premises. Defendant and his girlfriend, Tonya Brown, were also present at the time of the search. During the search, officers seized a pair of extremely wet tennis shoes with a tread pattern similar to those of the tracks they had been following, a black zippered cloth jacket, a brown zippered Merchants Bank money bag containing $225 in the same denomination of currency as Snow had given the robber, a pair of white goggle-type sunglasses, blue jeans that were wet to the knees, a glove, a wet grey jacket, and a stocking cap with two holes cut in it. Defendant was arrested, taken to police headquarters and Mirandized. Shortly thereafter, Snow was brought to the police station to identify the items seized and the defendant.
At the station, Snow was informed by the police that they had recovered the money and had arrested the suspect. They showed her the items seized and allowed her to smell the clothes seized. They told her that they had taken the money bag and clothes from the person they had arrested. The police also showed Snow the suspect on a television monitor and told her that the person on the television monitor was the person arrested. After viewing defendant for four to five minutes and listening to him talk, Snow identified him as the robber.
A complaint was filed charging the defendant with one count of robbery. The defendant filed a motion to suppress Snow’s pretrial identification and the resulting in-court identification. The defendant further filed a notice of alibi defense. The defendant’s motion to suppress was denied and the defendant was convicted by a jury of one count of robbery. He was sentenced to 4-15 years and now appeals.
Eyewitness Identification
Defendant argues that Snow’s pretrial identification was impermissibly suggestive, tainting the in-court identification, and that the trial court erred by not suppressing both identifications. He argues that her description to the police was highly suspect and that her later identification was based on the suggestive circumstances and comments made by the police and not her own independent observations. Defendant contends that Snow’s identifications contradicted her earlier descriptions, thereby calling the validity of the identification into question.
“A two-step approach is utilized to determine whether an eyewitness identification should be excluded. Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 .(1968). Initially, a court must determine whether the procedure used in making an identification was unnecessarily suggestive. If so, then, the court must examine whether, under the totality of the circumstances, the impermissibly suggestive identification led to a substantial likelihood of irreparable misidentification which would deny due process.” State v. Skelton, 247 Kan. 34, 39-40, 795 P.2d 349 (1990).
When considering whether an unnecessarily suggestive identification procedure would lead to a substantial likelihood of misidentification, the court looks to the five factors set out in Neil v. Biggers, 409 U.S. 188, 199, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972):
“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Biggers, 409 U.S. at 199-200.
These five factors were considered in State v. Alires, 246 Kan. 635, 639, 792 P.2d 1019 (1990).
In this case, the trial court determined that the procedures utilized by the Topeka Police Department were not unnecessarily suggestive and, therefore, denied defendant’s motion to suppress the victim’s testimony. In this respect, we believe the trial court erred.
Improper procedures for displaying a suspect to an identifying witness such as a one-person show-up, one-on-one confrontation, a lineup or photo array wherein the suspect stands out because the other persons displayed do not have similar characteristics as the suspect, all tend to increase the possibility of eyewitness misidentification. The United States Supreme Court has held:
“A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” (Emphasis added.) Simmons v. United States, 390 U.S. 377, 383-84, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968).
The eyewitness in this case saw the robber for approximately 30 seconds as he walked in front of her store before the robbery and approximately one minute during the robbery. When he first walked by the store, she noticed that he was wearing a stocking cap and had sunglasses on but could not see his face. During the robbery, she could not see anything but the robber’s chin and lips because the stocking cap was pulled way down and the sunglasses covered a large portion of his face.
The eyewitness was brought to the police station a little over an hour after the robbery to identify both the items seized and the defendant. Only the defendant and the interviewing officers were on the television monitor. The eyewitness was never asked to observe or identify any other possible suspects. In essence, the defendant was identified through a one-person show-up. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967).
In Stovall, the single person show-up was permissible because of exigent circumstances. The eyewitness was in critical condition in the hospital and it was impossible for the witness to go to the jail. 388 U.S. at 302. The Supreme Court held that the police, faced with the responsibility of identifying the attacker and the need for immediate action, under the circumstances undertook the only procedure possible. 388 U.S. at 302. In this case, there is no evidence of record of exigent circumstances. The witness was allowed to view the defendant on a television monitor. She was told that the police had recovered the money from the person arrested and that the arrested person was the party she was viewing. The witness was also told that the clothes she had been previously shown had been taken from the defendant. Contrary to the trial court’s conclusion, we believe that the above factors render the procedure used by the Topeka Police Department in making the identification unnecessarily suggestive.
Under the second prong of Skelton, the question which we must examine is whether, under the totality of the circumstances, the impermissibly suggestive identification led to a substantial likelihood of irreparable misidentification which would deny the defendant due process. Skelton, 247 Kan. at 40. The answer to this question involves consideration of the five Biggers factors set forth in 409 U.S. at 199-200; State v. Alires, 246 Kan. at 639.
(1) The opportunity of the witness to view the criminal at the time of the crime. Snow saw the robber twice, once for approximately 30 seconds when he walked by the store. At this time, she could not see his face, but her attention was drawn to him because he had on sunglasses, a stocking cap, and a light coat, and he did not look like the people who normally shop at the mall. She again saw the robber when he came into the store to demand money. This time, she could see only his chin and lips because his eyes and the rest of his face and head were covered by the stocking cap and the sunglasses. The robbery lasted approximately one minute.
(2) The witness’ degree of attention During the robber’s first 30-second walk-by, the witness observed his clothing and eyeglasses, not his face. During the robbery, Snow could see only part of the robber’s face and the items of clothing he wore. During this period, her attention was partially directed towards the safe, which she tried to open three times. While she was opening the safe, the robber squatted down beside her, and at this time, she noticed he smelled like cooking grease. She also heard his voice as he spoke and counted backwards from 10, later saying that he had a soft voice with a kind of nasal, black accent. Her degree of concentration at the time was such that it allowed her to select a source of cash within the store containing the least amount of money.
(3) The accuracy of the witness’ prior description of the criminal. Snow described the robber as a light-skinned black person approximately six feet tall, 150 to 160 pounds, with full lips, a soft, black, nasally voice and between the ages of 18 to 20 years old. She could not see his face, but described him as smelling of cooking grease and wearing a black cotton jacket zipped to the waist, mirror-like sunglasses resembling ski goggles, denim blue jeans, a black glove on his left hand, and a dark or blue-colored stocking cap with red and white stripes along the bottom. The stocking cap seized was navy in color and did not have any red or white stripes on it. However, there was some evidence indicating that what she saw was a scarf containing red stripes. She was not positive that the stocking cap shown to her was the one the robber wore. She did recognize the sunglasses, the smell of grease on the blue jeans the police had seized, and the coat worn by the robber. While she thought the robber wore a black leather glove on his left hand, the glove found by the officers had a leather-like vinyl on the top portion of the glove only.
In response to the eyewitness’ testimony concerning the smell of grease, the defendant testified that, although he had once worked as a dishwasher at a Red Lobster restaurant, he had not done so for almost a month. Further, the defendant was 30 years old at the time of the robbery.
(4). The level of certainty demonstrated by the witness at the confrontation. Snow testified that she did not see the face of the robber at the time of the robbery. At the time she looked at him on the monitor, he was not wearing any of the clothes the robber wore because the police had previously seized them and asked Snow to identify them. She testified at the suppression hearing that she was able to identify the defendant by his voice, by the smell of the clothing she was shown, and by the bag of money that was shown to her by the police. Snow had viewed the defendant for three to five minutes prior to her identification at the police department, listening to him talk and count backward from 10 before identifying him by voice.
Snow identified the defendant at trial as the robber. After hearing the brother of the defendant, Phillip Holloman, who was alleged to have found the money bag and brought it to the residence, and the defendant count backwards from 10 at trial, Snow reaffirmed that the defendant was the robber.
Voice identification by a lay witness is permitted in Kansas “provided only the witness has some basis for comparison of the accused’s voice with the voice which he Or she identifies as the accused’s.” State v. Weigel, 228 Kan. 194, 199, 612 P.2d 636 (1980). She also identified defendant’s sunglasses, his blue jeans, and his black zippered coat as those the robber had been wearing.
(5) The length of time between the crime and the confrontation. Snow viewed the defendant on the television monitor a little over an hour after the robbery. Testimony revealed that after observing the defendant on the television monitor, Snow appeared 95% certain that he was the robber.
If the identification possesses sufficient aspects of reliability, the procedure used, although unnecessarily suggestive, does not violate due process. “[R]eliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). “The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less rehable procedure where a more reliable one may be available,” not because in every instance the admission of evidence of such a confrontation offends due process. Biggers, 409 U.S. at 199.
Despite the police procedures used in this case, we believe that the victim’s identification of the defendant possesses sufficient aspects of reliability. The victim used the voice and clothes as aids in her identification. She demonstrated a reliable degree of certainty regarding her voice identification. Her description of the defendant at the scene, while not perfect, possessed sufficient aspects of reliability to guarantee due process. While her attention was diverted by the opening of the safe, she did have a brief time to look directly at the defendant and use this observation time to aid her in her identification.
What is protected is an evidentiary interest of the defendant. The United States Supreme Court has recognized the limited extent of that interest in our adversary system. In Manson, the United States Supreme Court notes this limited interest:
“ ‘In essence what the Stovall due process right protects is an evidentiary interest ....
“ ‘It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness — an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the “integrity” — of the adversary process.
“ ‘Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.’ ” 432 U.S. at 113-14, n.14 (quoting Clemons v. United States, 408 F.2d 1230, 1251 [D.C. Cir. 1968], cert. denied 394 U.S. 964 [1969]).
In this case, the cross-examination by defense counsel of the police officers and the victim was effective and extensive. All weaknesses of the identification by the victim and others testifying were thoroughly exploited by counsel. The jury was instructed specifically to view eyewitness identification with caution. We conclude that the defendant was not denied due process by reason of the unnecessarily suggestive procedure employed by the Topeka Police Department in making an identification.
We further note that the jury in this case deliberated over an extended period of time. Other circumstantial evidence tied the defendant to the crime charged. The jury was required to and did deal with the defendant’s alibi defense as well as defendant’s brother’s testimony that he found the money bag on the way home from the shopping mall.
We in no way condone the identification procedures used by the Topeka Police Department. However, after reviewing the record, we conclude that the victim’s identification possesses sufficient aspects of reliability to be considered under proper instructions to the jury. We cannot say under the totality of the circumstances in this case that there is a very substantial likelihood of irreparable misidentification. “We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Manson, 432 U.S. at 116.
Instruction on Lesser Included Offense
The defendant argues that, under the facts of this case, the trial court was required to give a lesser included offense instruction on theft. While theft is a lesser included offense of robbery, State v. Patterson, 243 Kan. 262, 266, 755 P.2d 551 (1988), the evidence did not warrant such an instruction.
Evidence was presented to show a robbery had taken place. The victim testified that the robber had threatened to shoot her if she did not give him the money. She gave him the money bag containing $225 and the money was recovered from the defendant’s residence.
The defendant, however, denied having robbed the store. He denied he ever went to White Lakes Mall and testified that he had never seen the money bag until the police arrested him. He stated that he had been at the bowling alley and the B. Dalton’s bookstore at the time of the robbery. In support of his position that he did not rob The Gap and knew nothing about the robbery or money bag, the defendant presented evidence from his mother, Bertha Holmes, and his brother, Phillip Holloman, that Phillip had found the money bag when he was walking home.
To be guilty of theft, the defendant must have intended to exercise unauthorized control over the property with an intent to permanently deprive The Gap of its use, possession, or benefit. K.S.A. 21-3701. Defendant contends that because he denied knowing about the robbery, offered evidence that someone else committed the robbery, and presented evidence that his brother accidentally found the money bag and brought it home, he could not have manifested the required intent for theft.
Burden of Proof Instruction in Alibi Defense
The defendant argues that his alibi was an affirmative theory of defense which required the giving of a separate instruction under PIK Crim. 2d 52.08. However, the defendant did not object to the trial court’s decision not to give the requested instruction. Nor did the defendant object when the trial court gave the jury the instructions which omitted defendant’s proposed instruction.
“A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. [Citations omitted.] 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 the jury would have returned a different verdict. [Citation omitted.]” State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
See State v. Perkins, 248 Kan. 760, 770, 811 P.2d 1142 (1991); State v. Harper, 246 Kan. 14, 25, 785 P.2d 1341 (1990); State v. Land, 14 Kan. App. 2d 515, 517, 794 P.2d 668 (1990).
The committee on PIK instructions has recognized that an alibi defense is not a true affirmative defense. In State v. Peters, 232 Kan. 519, 656 P.2d 768 (1983), the Supreme Court reaffirmed the recognition in PIK Crim. 2d 52.19 that an alibi defense instruction not be given. 232 Kan. at 520. In reaffirming that recommendation, the Supreme Court quoted the PIK comment, stating:
“ ‘Alibi is not an affirmative defense, as is entrapment or insanity; it consists only of evidence showing that the defendant was not present at the time or place of the crime. This evidence should be considered as all other evidence. If an instruction is given, attention is called to the defendant’s alibi, which connotes a burden not found in the law.’ ” 232 Kan. at 520.
“[T]he danger in instructing separately relative to the defense of alibi lies in the almost insurmountable difficulty of avoiding connotation of some burden on the accused to prove the defense. Accordingly we hold that a separate instruction on the defense of alibi is not required where adequate and proper instructions are given on the elements of the crime charged and on the prosecution’s burden to prove guilt beyond a reasonable doubt.” State v. Skinner, 210 Kan. 354, 361, 503 P.2d 168 (1972), overruled on other grounds State v. Wilkins, 215 Kan. 145, 156, 523 P.2d 728 (1974).
See State v. Dailey, 228 Kan. 566, 570, 618 P.2d 833 (1980); State v. Suing, 210 Kan. 363, 364, 502 P.2d 718 (1972).
A review of the trial record reveals that the jury was instructed on the elements of the crime charged and the fact that the law placed a burden of proof on the State to identify the defendant, setting out various factors the jurors should consider when weighing the reliability of the State’s eyewitness identification testimony. That instruction specifically informed the jury that the defendant did not have to prove that he had been wrongly identified. Instuction No. 3 informed the jury that it was to presume the defendant was innocent and that the State had the burden of proving the defendant guilty. Although Instruction No. 3 did not specifically state that the State has the burden of proving the defendant guilty beyond a reasonable doubt, it did tell the jurors the test they were to use: “If you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty. If you have no reasonable doubt as to the truth of any of them, you should find the defendant guilty.” The test described by the trial court adequately informed the jury of the need to find the defendant guilty beyond a reasonable doubt. Lastly, Instruction No. 4 informed the jury that it had to find criminal intent on the part of the defendant to find him guilty. The instruction went on to describe criminal intent as conduct of the accused that was willful, i.e., purposeful and intentional and not accidental.
The instructions given by the trial court adequately set out the elements of the crime charged and informed the jury of the State’s burden of proof and the jury’s need to find the defendant guilty on each claim beyond a reasonable doubt. The trial court’s refusal to give the proposed alibi instruction is not clearly erroneous and is not a basis for reversal.
Sufficiency of Evidence
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
After a review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that the jury could have found the defendant guilty beyond a reasonable doubt.
Affirmed.
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Pierron, J.:
Ron Todd, Commissioner of Insurance for the State of Kansas (Commissioner), as receiver of Farm and Ranch Life Insurance Company, Inc., (Farm and Ranch) in liquidation, appeals the decision of the district court that Kansas does not have personal jurisdiction over the defendants in this action to recover alleged unearned commissions. The district court granted the defendants’ motion to quash service, and we reverse and remand for further proceedings.
The Commissioner was appointed to be the receiver for Farm and Ranch, an insolvent insurance company placed in liquidation by the Shawnee County District Court. Farm and Ranch had previously bought the credit life insurance division of Empire Life Insurance (Empire), a Nebraska insurance company. Empire had sold credit life insurance policies to customers of defendants, Lakeland Chrysler-Plymouth-Dodge, Inc., (Lakeland) and Bran,don Chrysler-Plymouth, Inc., (Brandon), two Florida car dealerships. After cancelling all of the Farm and Ranch insurance policies, the Commissioner sued defendants to recover unearned premiums. The district court found that Kansas did not have jurisdiction over the defendants, and the Commissioner appeals.
In its journal entry finding that there was no jurisdiction over the defendants, the trial court adopted the defendants’ statement of facts as its own findings of fact.
Defendants Brandon and Lakeland were Empire credit life insurance agents from 1982 and 1979, respectively. Credit life insurance pays off the financed price of a car, if the purchaser dies while the car is still financed. The agreements between Empire and defendants were signed in Florida and Nebraska.
Farm and Ranch bought Empire’s credit life insurance business effective April 1, 1986. Farm and Ranch sent the defendants assumption certificates, stating it would assume the liabilities and obligations of the Empire policies effective April 1, 1986. The defendants then received cancellation notices from Farm and Ranch cancelling the Empire policies and issuing Farm and Ranch policies effective September 1, 1986.
Throughout the spring and summer of 1987, the defendants had difficulty in obtaining payment of death benefits and reimbursement of customers for cancelled policies. The defendants’ attorney wrote to Empire on September 9, 1987, asking for reimbursement for the $13,721.57 the defendants had paid out on Empire’s behalf in order “to maintain local integrity and reputation.”
Also in September 1987, the Commissioner cancelled all Farm and Ranch policies pursuant to a court order filed on August 27, 1987, finding that Farm and Ranch was insolvent and placing it in liquidation. The defendants were sent notice of the Farm and Ranch liquidation proceedings in October 1987. The notices were on Kansas Insurance Department letterheads. The notices instructed all policyholders that proof of claim forms would be mailed out and that they should be returned to a P.O. Box in San Antonio, Texas. The plaintiff explains that although the home office of Farm and Ranch was Topeka, Kansas, it had closed that office, and the last office Farm and Ranch used before becoming insolvent was, in San Antonio, Texas.
In November 1987, the circuit court in Leon County, Florida, began a proceeding entitled: “In Re The Ancillary Receivership of Farm and Ranch Life Insurance Company, Inc. a Kansas corporation.” That court ordered that all policies of insurance by Farm and Ranch were to remain in full force and effect.
Thfe deféndants contend that it is the policy of Florida not to automatically cancel all the policies of an insolvent insurance company because it may be more profitable to continue the policies in force and pay off the few that are actually claimed. The alternative is to cancel all policies, refund all premiums paid in advance, and bill agents who had received their commissions up front and who now owe the insurance company a refund for the commission on the cancelled portion of the policy. If an insurance company becomes insolvent, the Florida Life and Health Insurance Guaranty Association will pay all Florida consumers’ claims against the insolvent company. The plaintiff contends that all Florida did was guarantee that its consumers would not be left with worthless insurance policies.
In March 1988, the defendants through their attorney timely submitted the requested proofs of claim to the Farm and Ranch office. The signature lines were left blank and, where the form requested the claimant’s name, the car dealerships’ names were typed. A letter from the defendants’ attorney accompanied the proofs of claim stating in part, “My clients have paid out to date, in excess of $17,000.00 to claimants under Empire Life policies.”
Those claims were denied by the Kansas Deputy Receiver, who then made demand upon the defendants for the unearned commissions from the cancelled insurance policies. The defendants resisted those claims saying, first, the insurance policies were not cancelled in Florida, thus they did not owe Farm and Ranch any unearned commissions. Second, they contended they had never sold Farm and Ranch credit life insurance, so they owed nothing to Farm and Ranch. Third, they contended they never had had any contact with Kansas and, therefore, Kansas lacked jurisdiction. Additionally, they asserted their business was only with Empire, the policies had been continued by the Florida courts, they had been paid the money owed them by Empire through the Florida court system, and they only filed the proofs of claim because it was requested of them and they were not sure of the relationship between Empire and Farm and Ranch.
We must first address the appropriate standard of review.
While the traditional standard of review for findings of fact and conclusions of law is that this court must only determine that the trial court’s findings of fact are supported by substantial competent evidence, Army Nat'l Bank v. Equity Developers, Inc., 245 Kan. 3, 19, 774 P.2d 919 (1989), it would appear there is an exception in this case. This court’s review of the trial court’s conclusions of law is, of course, unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). So also is our review of . the findings of fact in this particular case.
“Where, as here, the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such a situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.’’ American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 572, 545 P.2d 399 (1976).
See Fourth Nat'l Bank & Trust Co. v. Mobil Oil Corp., 224 Kan. 347, 353, 582 P.2d 236 (1978); Reznik v. McKee, 216 Kan. 659, 673, 534 P.2d 243 (1975).
The defendants have asserted that the evidence is not entirely documentary in nature as several testimonial affidavits are part of the record. The defendants suggest that this court accord considerable deference to the weight the trial court gave to the testimonial affidavits. Since there is no way to know just how much weight the trial court gave the affidavits, this is an impossible request. The plaintiff is also correct in pointing out that affidavits are quite similar to depositions — both are sworn testimony not given before the trier of fact. American States, 218 Kan. 563, clearly holds that, if the evidence is nothing more than pleadings, admissions, depositions, and stipulations, this court can review the findings of fact de novo.
After reviewing the evidence before us, it appears that Kansas does have jurisdiction over the matter due to submission by the defendants to the Kansas liquidation proceeding.
Although further discovery would probably add more light to this matter, the essential facts are clear. Empire had sold its credit life business to Farm and Ranch. Farm and Ranch informed the defendants of that fact. Later, a liquidation proceeding was begun in Kansas when Farm and Ranch became insolvent. The defendants were sent proof of claim forms clearly labeled as part of the Farm and Ranch liquidation with no reference to Empire. The defendants claimed $13,610.55 and $4,157.60, respectively, for return of premiums from Farm and Ranch.
There is no dispute that Kansas was the appropriate venue for the liquidation process. The need for giving one state exclusive jurisdiction over insurance liquidation proceedings has long been recognized in the courts. See Motlow v. Southern Holding & Securities Corp., 95 F.2d 721 (8th Cir. 1938); Ballesteros v. N. J. Prop. Liab. Ins. Guar. Ass’n, 530 F. Supp. 1367 (D.N.J.), aff'd 696 F.2d 980 (3d Cir. 1982); Hager v. Anderson-Hutchinson Insurance Agency, No. 86-841-E, slip op. (S.D. Iowa July 19, 1989).
“Experience has demonstrated that, in order to secure an economical, efficient, and orderly liquidation and distribution of the assets of an insolvent corporation for the benefit of all creditors and stockholders, it is essential that the title, custody, and control of the assets be intrusted to a single management under the supervision of one court. Hence other courts, except when called upon by the court of primary jurisdiction for assistance, are excluded from participation. This should be particularly true as to proceedings for the liquidation of insolvent insurance companies . . . .” Motlow, 95 F.2d at 725-26; Ballesteros, 530 F. Supp. at 1371.
The plaintiff contends that under K.S.A. 60-308(a)(l) service upon a party outside the state who has submitted to the jurisdiction of the courts of Kansas has the force and effect of personal service within this state. The issue is, therefore, whether the return of the claim forms constitutes submission to the courts of Kansas in this matter. Although we have found no cases precisely on point, it appears that the return of the claim forms did precisely that.
It cannot be seriously argued that the defendants did not wish to avail themselves of the liquidation proceeding. They knew of its existence and responded in detail on the forms provided by the receiver, requesting to be paid a total of $17,768.15. Their claim that they believed they were only requesting a share of an asset available from Empire is contradicted by the face of the claim forms they submitted.
Further, the defendants’ claim that since they did not sign their claim forms, the forms were invalid, is groundless. Once the claims were received by the receiver the defendants, by their actions, accepted the benefits of, and thus submitted themselves to, the jurisdiction of the Kansas courts. The fact that defendants might be subjected to claims, by the receiver for claimed debts to Farm and Ranch is a risk they took by filing a claim with the court-appointed receiver.
The defendants’ claim that an ancillary proceeding in Florida disposed of the issue is similarly groundless. The proceeding in Florida was initiated to protect Florida policyholders and not to adjudicate the issues between the defendants and the receiver.
Plaintiff cites State ex rel. Low v. Imperial Ins. Co., 140 Ariz. 426, 682 P.2d 431 (Ct. App. 1984), in support of its position.
Imperial Insurance Co. was a California medical malpractice carrier which did business in Arizona. The company was placed in receivership in California and several Arizona claimants filed claims. The claimants eventually obtained judgments against physicians insured by Imperial.
Later, an Arizona ancillary receiver was appointed and the same Arizona claimants attempted to file the same claims in the Arizona proceeding. The Arizona Court of Appeals agreed with the California receiver that by voluntarily submitting to the California action claimants were bound by the results in the California courts.
In dicta, the Arizona Court of Appeals stated that California was the only forum where the individual claims could be filed and fully administered. See 140 Ariz. at 433-34. Although the issues are not identical, we believe the facts are similar to the instant case and the same reasoning applies.
The defendants cite the usual Kansas and United States Supreme Court cases of Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945); Volt Deta Resources, Inc. v. Devine, 241 Kan. 775, 740 P.2d 1089 (1987); and Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 852, 528 P.2d 1248 (1974), in discussing the “minimum contacts” requirements of due process. We stress that our decision is not based on the usual criteria of business activity in the state, but on submission to the authority of the courts in the liquidation process. Whether there were the minimum contacts necessary through the conduct of business to establish jurisdiction is not addressed here. We, therefore, find that jurisdiction is appropriate in Kansas.
Reversed and remanded for further proceedings.
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Pierron, J.:
On Sunday, November 11, 1990, at approximately 12:28 p.m., Lenexa, Kansas, police officers were dispatched to the Days Inn Motel in Lenexa, Kansas, Johnson County. The dispatch was to Room 350 of the motel where a woman had been heard screaming for help. Three officers responded to the dispatch: Officer Sarah (Keating) Vogelsberg was the first to arrive. Officer Rusty James arrived shortly thereafter. The last to arrive was Officer Marc Halvorson.
As he arrived on the scene, Halvorson noticed a white male in a blue Thunderbird approaching what Halvorson knew to be the only exit from the motel parking lot. The other two officers had already driven toward Room 350 to investigate the reported disturbance. Halvorson noticed that other than the marked police cars, the Thunderbird was the only vehicle moving in the parking lot. There was also testimony that the individual in the car “stared at” the officer. Halvorson followed the Thunderbird since he “believed that it might be the suspect vehicle.”
Halvorson followed the Thunderbird for about six-tenths of a mile and then decided to stop it. As to what took place while Halvorson followed the Thunderbird, the parties differ.
It is undisputed that after he stopped the vehicle, Halvorson asked the defendant what had happened at the motel. The defendant answered that he and his girlfriend had a fight because he thought she had been sleeping with his best friend.
Officer James arrived at the scene and told Halvorson they had received enough information to link the occupant of the car to the disturbance at the motel. Finley was placed under arrest. The search of his person revealed a vial of cocaine. It was also found that Finley was driving with a suspended driver s license. Officer James testified he saw what appeared to be seeds on the passenger’s seat. He conducted a search of the trunk where he found a quantity of hypodermic needles (syringes). He proceeded to look under the hood where three bags of marijuana were found.
Finley was charged with six counts: Count I — Battery; Count II — Criminal Damage to Property (for damage at the Days Inn Motel); Count III — Driving With a Suspended License; Count IV — Possession of Drugs with Intent to Sell; Count V — Possession of Drug Paraphernalia; and Count VI — Possession of Cocaine. Counts I and II were later dismissed.
The defendant filed a motion to suppress the evidence of the drugs and drug paraphernalia, alleging that they were illegally obtained. In particular, he claimed that the stop of his automobile was not supported by a reasonable suspicion that criminal activity had occurred. After two hearings the trial judge granted the defendant’s motion and suppressed the evidence. This is the State’s interlocutory appeal of the trial court’s suppression of the evidence.
A great deal of the time spent by the parties at the hearings was devoted to the issue of what information was relayed to Halvorson by the other two officers prior to stopping the vehicle. The trial court found after an analysis of the admittedly confusing and contradictory testimony that. Halvorson received no information from the other officers prior to making the stop. The court then found there was insufficient information available to the officer to justify the stop when it occurred.
We find that although we accept the trial court’s reading of that evidence, there was sufficient information available to the officer to justify a car stop under these facts.
The trial court is to determine the reasonableness of a search based upon the facts and circumstances unique to that case. State v. McKeown, 249 Kan. 506, 514, 819 P.2d 644 (1991) (citing State v. Kirby, 12 Kan. App. 2d 346, 353, 744 P.2d 146 [1987], aff’d 242 Kan. 803, 751 P.2d 1041 [1988]). In reviewing a trial court’s decision, an appellate court must consider whether the findings of the court on the motion to suppress are based upon substantial evidence. McKeown, 249 Kan. at 514. Substantial evidence is described as:
“ ‘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.’ Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981); see Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988). An appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court and must disregard any conflicting evidence or other inferences that might be drawn therefrom.” Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 572-73, 808 P.2d 1369 (1991) (citing Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 244, 736 P.2d 882 (1987).
Before touching upon the reasonableness of the search involved in the case at hand, we must first determine whether the stop of the defendant’s vehicle was lawful. The law governing the stop involved in this case is found at K.S.A. 1991 Supp. 22-2402(1):
“Stopping of suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.”
The statute is a codification of the rule governing a stop and frisk under the United States Supreme Court case of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The Kansas Supreme Court recently discussed this statute in State v. McKeown, 249 Kan. at 509. In McKeown, the court noted that even if a law enforcement officer does not have the requisite reasonable suspicion to conduct a Terry stop, he may still approach an individual on the street for investigative purposes. The officer may request identification of the individual, who must be free to leave. 249 Kan. at 509 (citing State v. Epperson, 237 Kan. 707, 713, 703 P.2d 761 [1985], and State v. Marks, 226 Kan. 704, 708-09, 602 P.2d 1344 [1979]).
An officer is not, however, afforded this opportunity if the individual is in a moving vehicle. The court held that the stop of a vehicle pursuant to K.S.A. 22-2402 always constitutes a seizure. McKeown, 249 Kan. at 510. "Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry.” 249 Kan. at 510. The court continued, “[t]o stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion’ that the vehicle contains individuals involved in criminal activity.” 249 Kan. at 510.
At the motion to suppress hearing, the defense contended Officer Halvorson did not have the requisite reasonable suspicion based on facts known prior to the stop in order to conduct the stop. The State, on the other hand, contended Officer Halvorson’s testimony of the events leading up to his following and stopping the vehicle was enough to create a reasonable suspicion that the occupant in the car was involved in the disturbance at the motel.
The arguments may only be resolved with a determination of what “reasonable suspicion” means in modem day law. 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 reliable 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 v. 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.
Therefore, whether the stop in the case at hand was lawful depends on Officer Halvorson’s ability to point to specific articulable facts which reasonably create a suspicion that the occupant of the vehicle had committed a crime. Inchoate and unparticularized suspicion or hunches will not suffice.
The dispatch to the motel was the result of a report by an unknown informant that there was a woman screaming for help in Room 350. Officer Halvorson testified that he was the third law enforcement officer to arrive on the scene. As he entered what he knew to be the only entrance and exit to the motel parking lot, he saw one moving automobile, a blue Thunderbird. Officer Halvorson, a six and a half year veteran with the Lenexa Police Department, testified that he suspected that the person in the automobile was involved in the reported incident. He, therefore, decided to follow the vehicle. He followed the vehicle for approximately six-tenths of a mile before pulling it over by activating his red lights. All of the events leading up to the stop and attendant search, coupled with the fact that Officer Halvorson had been with the Lenexa Police Department for over six years, created enough suspicion to alert a reasonable person that the individual in the car might have committed a crime.
It is important to remember that this is all that is necessary— 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.
Once the blue Thunderbird was stopped, Halvorson asked the occupant of the car what had happened at the motel. He determined that the individual was definitely involved in the disturbance since the defendant explained that he and his girlfriend had been in a fight.
The State cites several Kansas cases which uphold a finding of reasonable suspicion. The defendant claims these cases are easily distinguishable from the present case since the law enforcement officers had more articulable facts to support a reasonable suspicion. Among these are State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986) (officers knew that suspects were two black men dressed in black jackets and blue jeans; the totality of the circumstances — “the whole picture” held determinative); State v. Bailey, 247 Kan. 330, 799 P.2d 977 (1990) (officers knew that suspect was black male wearing yellow baseball cap, suspect looked nervously at officers; although facts known were sketchy, the need for immediate action played a large role), cert. denied _U.S. _, 114 L. Ed. 2d 108 (1991); State v. Potter, 246 Kan. 119, 785 P.2d 989 (1990) (officers knew that suspects were two men in camouflage suits with black greasepaint on their faces).
These cases may involve more articulable facts than the case at hand. This does not mean that there are not articulable facts in the case at hand. From the undisputed facts available, we find as a matter of law that Officer Halvorson had sufficient articulable facts to justify the stop.
Since the court suppressed the evidence on the basis of an illegal stop, the matter is remanded to the trial court for further consideration of whether, assuming a lawful stop was made, the subsequent search was justified under the facts, and for any other appropriate proceedings.
Reversed and remanded.
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