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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a district court order granting summary judgment to the appellee Union Insurance Company. The Court of Appeals reversed the trial court in an unpublished per curiam decision filed May 15, 1986, and we granted review. The facts are not in dispute and are as follows:
On April 5, 1984, Nathan Feldt made application to Union Insurance Company (Union) for the issuance of a motor vehicle liability policy. On the application, Feldt gave his address as Route 3, Bissell Point, Great Bend, Kansas, 67530, and stated that his driver’s license had never been revoked or suspended.
On April 26, 1984, Union issued a motor vehicle liability insurance policy to Feldt; the policy period extended from April 5, 1984, to October 5, 1984. The policy was cancelled by Union on June 1,1984, when it discovered Feldt’s driving record which contained, among other things, numerous speeding violations, a DWI conviction, and a traffic sign violation. Feldt’s record also showed his license had been suspended on more than one occasion. Notice of cancellation was mailed by United States Post Office certificate of mailing to Nathan Feldt, Route 3, Bissell Point, Great Bend, Kansas, 67530.
Seven weeks after notice of termination of insurance was mailed to Feldt, he was involved in an automobile collision with Betty Vanek on July 21, 1984, in the city of Great Bend. He reported to the investigating officers that his name and address were Nathan Feldt, Route 3, Bissell Point, Great Bend, Kansas, 67530.
Feldt later filed an affidavit in which he stated that on June 1, 1984, he was a full-time student using his parents’ address as his mailing address. He further alleged that in late May and early June 1984, his parents were vacationing out of the country and he was staying at a “rural address” near Chase, Kansas. Consequently, Feldt claims he never received the notice of cancellation mailed by Union. He does not contend the notice was not delivered to his listed address. Rather, he simply argues he did not personally receive the notice.
Feldt s ought a declaratory judgment from the district court that the policy of automobile liability insurance was not effectively cancelled. The district court granted summary judgment in favor of Union, and held that Kansas law does not require actual notice of cancellation be received unless the policy language provides otherwise. The court further found that the policy provided it would be cancelled by compliance with the law of the insured’s state in effect at the time the policy was issued and that the insurance company had complied with the provisions of the policy.
The Court of Appeals reversed the district court and held that the insured must actually receive the notice of cancellation before a policy can be validly cancelled. We granted review.
The only issue on appeal is whether notice of cancellation of a motor vehicle liability insurance policy must be actually received by the insured before the policy is validly cancelled. Let us examine the relevant policy provision. It provides:
“TERMINATION
“Cancellation. This policy may be cancelled during the policy period as follows:
“1. The named insured shown in the Declarations may cancel by:
“a. returning this policy to us; or
“b. giving us advance written notice of the date cancellation is to take effect.
“2. We may cancel by mailing to the named insured shown in the Declarations at the latest address filed with us by or on behalf of the named insured:
“a. at least 10 days notice if cancellation is for nonpayment of premium;
“b. at least 30 days notice in all other cases.
“We may not cancel the liability and personal injury protection coverage unless we:
“a. mail notice to the named insured by certified or registered mail or United States post office certificate of mailing; and
“b. give the director of vehicles notice of cancellation on or before the date of cancellation.”
The district court, after an examination of the policy, determined Union complied with its terms by mailing notice of cancellation to Feldt by United States Post Office certificate of mailing to the last address provided by Feldt.
In reversing the district court and holding that notice of cancellation must actually be received by the insured, the Court of Appeals relied on Koehn v. Central National Ins. Co., 187 Kan. 192, 354 P.2d 352 (1960), and Richmeier v. Williams, 9 Kan. App. 2d 222, 675 P.2d 372 (1984).
In Koehn, the insurance company mailed notice of cancellation to the insured at the policy address, yet the policy holder claimed he never received the notice. The policy contained the following “standard cancellation clause:”
“ '. . . This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice . . . the effective date and hour of cancellation stated in the notice shall become the end of the policy .. . .’ (Emphasis added.)” 187 Kan. at 193.
The Koehn court first noted that the “clear weight of authority” in this country concerning the standard cancellation clause holds that actual receipt of the cancellation notice by the insured is not a condition precedent to a cancellation of the insurance by the insurer. 187 Kan. at 196. However, the court then took a minority approach and construed the standard cancellation clause to require actual receipt of the cancellation notice by the policy holder. 187 Kan. at 199-202. The court further supported its view by noting that it would be a violation of public policy of this state to hold that actual receipt of cancellation is not required. 187 Kan. at 202-03.
A review of numerous cases discussed in a recent annotation on this topic confirms that the rule adopted by this court in Koehn is still the minority rule. Annot., 40 A.L.R. 4th 867.
Fourteen years after this court issued its opinion in Koehn, the Kansas Legislature enacted K.S.A. 40-3118(b). While this statute has been amended on numerous occasions since its adoption, in June of 1984 (when Union mailed notice of cancellation to Feldt) the statute, now found at K.S.A. 1985 Supp. 40-3118(b), provided in relevant part:
“[N]o motor vehicle liability insurance policy, or any renewal thereof, shall be terminated by cancellation or failure to renew by the insurer until at least 30 days after mailing a notice of termination, by certified or registered mail or United States post-office certificate of mailing, to the named insured at the latest address filed with the insurer by or on behalf of the insured. Time of the effective date and hour of termination stated in the notice shall become the end of the policy period.”
Thus, in order for a motor vehicle liability insurance policy to be effectively terminated, the insurer need only mail notice of termination by certified or registered mail or United States Post Office certificate of mailing to the insured at the last address provided by the insured. The statute clearly does not require the insurer to provide proof of actual receipt by the insured.
In the instant case, the policy provisions mirrored the statutory requirements. Union complied with these requirements "by mailing notice of cancellation by United States Post Office certificate of mailing to Nathan F eldt at the last address provided by Feldt.
This case is this court’s first opportunity to reconsider Koehn in light of K.S.A. 1985 Supp. 40-3118(b). It is obvious the legislature chose to reject the common-law (and minority) rule requiring actual receipt of notice of cancellation by the insured by enacting the foregoing statute. However, Feldt urges us to find that the enactment of 40-3118(b) did not change the common-law rule in Kansas. In support of his theory, he cites Richmeier v. Williams, 9 Kan. App. 2d 222. In the present case the Court of Appeals found Feldt’s argument persuasive and relied primarily upon Richmeier in reversing the district court’s decision.
In Richmeier, the Kansas Court of Appeals relied upon Koehn and construed an insurance policy requiring notice to the insured before cancellation for nonpayment of premiums to require actual receipt of the notice by the insured to make the cancellation effective. 9 Kan. App. 2d 222, Syl. ¶ 3. However, Richmeier is inapplicable to the instant case. As the Court of Appeals specifically noted in Richmeier, K.S.A. 40-3118(b) exempts cancellation for nonpayment of premium from its 30-day notice of cancellation requirement. Moreover, since the statute does not specify any other notice period for such cancellation, no notice to the insured is required by statute. Consequently, any construction of K.S.A. 40-3118(b) in Richmeier constitutes dicta since the statute is inapplicable to its facts.
Under the constitution the Legislature is charged with statutorily enunciating public policy. If such statute is constitutional and unambiguous, we are bound by the statute under the separation of powers. The constitutionality of K.S.A. 1985 Supp. 40-3118(b) is unchallenged and its terms rejecting the Koehn rule clear and unambiguous. The notice, mailed by Union to Feldt complied with the statute. Thus, the trial court properly granted summary judgment in favor of Union.
Though not raised on appeal, the appellant argued in oral argument that his policy was not effectively cancelled because the insurer failed to give notice of cancellation to the director of vehicles as required by the policy provisions. The general rule is that where the appellant fails to brief an issue, that issue is waived or abandoned. Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 255, 679 P.2d 206 (1984). Accordingly, we decline to consider this issue.
The judgment of the district court is affirmed and the judgment of the Court of Appeals is reversed. | [
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The opinion of the court was delivered by
Beier, J.:
Plaintiff Daniel L. Hemphill appeals the district court’s statute of limitations dismissal of his lawsuit against his uncle, defendant Jay F. Shore, as trustee of the Shore Family Trust. The Court of Appeals affirmed in Hemphill v. Shore, 44 Kan. App. 2d 595, 239 P.3d 885 (2010), and we accepted this appeal on Hemphill’s petition for review.
We hold that three of four of Hemphill’s causes of action are time barred, but his claim based on constructive fraud survives. The controlling trust instrument established a confidential relationship between plaintiff as beneficiary and defendant as trustee, and it limited defendant’s discretion to pay out income and distribute proceeds from the sale of principal to provide only for defendant’s health, education, support, or maintenance. Plaintiff has alleged that defendant did both for merely personal purposes and that plaintiff was unaware of the trust and defendant’s actions until within 2 years before filing suit. We thus affirm in part and reverse in part die rulings of the district court judge and die Court of Appeals panel and remand to the district court for further proceedings.
Factual and Procedural Background
In 1984, grantors Lee Shore and Linna S. Shore created the Shore Family Trust. The principal of the irrevocable trust consisted of farmland in Stanton County. The trust instrument designated as “principal beneficiaries” the grantors’ children, defendant Jay and plaintiff s mother, Susan; their spouses; and “any children subse quently bom to Jay and Susan.” Jay and Susan were named trustees; on the death of one, the other was designated to continue as sole trustee.
Other potentially pertinent provisions of the trust instrument read:
“ARTICLE IV
“DISPOSITIVE PROVISIONS
“The Trustee shall hold the trust property for the primary benefit of tire principal beneficiaries ....
“B. General Dispositive Provisions. . . .
“1. Lifetime Disposition of The Shore Family Trust. During the lifetimes of Jay F. Shore and Susan L. Shore, the Trustee, in said Trustee’s sole discretion, shall pay the income of The Shore Family Trust to Jay F. Shore and Susan L. Shore and/or their issue, in such amounts as the Trustee may deem necessary to provide for said income beneficiaries’ health, education, support or maintenance.
“In the event tire income of The Shore Family Trust is insufficient, in the Trustee’s sole discretion, to provide for the health, education, support or maintenance of Jay F. Shore and Susan L. Shore, the Trustee may invade the principal of The Shore Family Trust to the extent said Trustee deems necessary to provide for the benefit of Jay F. Shore and Susan L. Shore.
“2. Termination. If not earlier terminated by distribution of all assets under the foregoing provisions, The Shore Family Trust shall terminate upon the death of the survivor of Jay F. Shore or Susan L. Shore. On termination, the Trustee shall distribute one-half (½) of the then remaining assets of The Shore Family Trust, including any undistributed income therefrom or any part thereof to the children of Jay F. Shore in equal shares, per stirpes; and one-half (1/2) of the then remaining assets of The Shore Family Trust, including any undistributed income therefrom or any part thereof to the children of Susan L. Shore, in equal shares, per stirpes....
“ARTILE VII
“TRUST ADMINISTRATION
“G. Accounting by Trustee. The Trustee may render an accounting at any time to the beneficiaries of the trusts created herein, and the written approval of a beneficiary shall be final, binding and conclusive upon any person then or thereafter interested in the trust for that beneficiary.
“I. Discretionary Termination. Notwithstanding any other provision of this instrument, if the Trustee, in said Trustee’s sole and absolute discretion, determines that the expense of continuing a trust created hereunder has become greater than the trust assets and the existing situation warrant, the Trustee may terminate such trust and distribute the trust property, including any undistributed income, to the persons then entitled to income, with one (1) share distributed to each beneficiary surviving, and the share of any predeceased named beneficiary shall be distributed to their issue, per stirpes.
“K. Reports. The Tiustee shall render periodic reports at least annually, to each beneficiary then eligible to receive the current income of the trust. Each report shall show all receipts, disbursements and distributions during the period covered, and tire assets then held in the trust. The Trustee’s records shall be open at all reasonable times to the inspection of the beneficiaries of any Trust and to their accredited representatives.
“M. Trustee Guidelines. Without in any way limiting the discretion herein given to the Trustee, Grantor suggests that the primary purpose of The Shore Family Trust is to provide for tire specified needs of Jay F. Shore and Susan L. Shore in equal shares; and provided their needs are satisfied to provide for the specified needs of the children of Jay F. Shore and Susan L. Shore; and provided their needs are satisfied, to provide for tire specified needs of the issue of the children of Jay F. Shore and Susan L. Shore.”
Susan died on January 20, 1992, leaving plaintiff Hemphill as her only child. According to plaintiff s response to the defense motion to dismiss in this case, plaintiff, who was age 7 or younger when his mother died, was unaware of the trust or its provisions until his grandmother’s estate was probated in 2008. Neither he nor his natural guardian had ever received a report on the existence of the trust or the status of its assets.
Plaintiff filed this lawsuit on April 8, 2009, attaching a copy of the trust instrument to his petition.
In Plaintiff s second amended petition, which the district judge permitted to be filed at the same time he ruled on the motion to dismiss, plaintiff alleged that defendant sold the farmland that formed the principal of the trust and “distributed all or a substantial portion of the proceeds to himself, which proceeds were, upon information and belief, used by Defendant for his own personal purposes”; that “Defendant’s actions were self-dealing and a violation of tire Declaration of Trust, the intent of the Trust,” his obligations under the Kansas Uniform Trust Code and applicable prior law, and “his various duties as a trustee of the Trust, including the duty of loyally and duty of good faith and fair dealing”; that the “principal and income of the trust were . . . knowingly converted by Defendant to his own personal use in violation of the express and implied terms of tire trust and the intent of the trust settl[o]rs”; and that defendant
“was a fiduciary witli respect to Plaintiff, and violated his fiduciary duty and duty of loyalty by converting the principal and income of the Trust to his own personal use immediately after the death of Plaintiff s mother. He also violated his duty as a fiduciary widi respect to Plaintiff, breaching the duty of loyalty, duty of good faith and fair dealing, and other duties placed upon him by virtue of his fiduciary relationship with Plaintiff.”
These and other allegations were set up to support plaintiffs four causes of action: breach of trust, breach of fiduciary duty, conversion, and constructive fraud. Plaintiff sought imposition of a constructive trust “on the property of the Trust for the benefit of the beneficiaries” and “such other and further relief in Plaintiff s favor as the Court deems just and equitable.”
Defendant moved to dismiss the action, arguing that the applicable statutes of limitations and repose barred all of plaintiff s claims.
The district judge ruled in defendant’s favor, holding that the trust was a “discretionaiy trust granting broad discretionaiy powers to the trustee to distribute . . . income and to invade princip[al].” His journal entry of dismissal continued:
“IT IS FURTHER BY THE COURT FOUND that based upon the Trust Agreement, that in the Trustee’s sole discretion the Trustee had the right to invade principal] to the extent said Trustee deemed it necessary to provide for the benefit of Jay F. Shore and Susan L. Shore. The Trust document is full of discretionary language giving the Trustees the ability to invade princip[al] when they deem necessary in their sole discretion.
“. . . The plaintiff has requested the inclusion of a claim for constructive trust and alleges generally that the actions of the Trustee were betrayal of trust but does not allege any specific acts of fraudulent conduct o[r] misuse or theft of any trust assets.
“THE COURT FURTHER FOUND that based on Stark v. Mercantile Bank NA, 29 Kan. App. 2[d] 717, 725, 33 P.3d 609 (2000), that not every nondisclosure by a trustee is necessarily fraudulent and the Court must evaluate the allegations of fraud set forth in the Petition. When evaluating the pleadings in the Amended Petition submitted by the Plaintiff relating to the allegations of constructive fraud, the allegations are that Mr. Shore failed to act appropriately. The Shore Family Trust was a discretionary trust granting Defendant full and sole discretion with regard to his actions and conduct.
“IT IS FURTHER RY THE COURT FOUND that based on the facts as ple[d], both in the First Amended Petition and the Second Amended Petition, the statute of limitations is not tolled and Plaintiff s claims are barred by the statutes of limitations.”
Plaintiff appealed unsuccessfully to the Court of Appeals.
The panel gave short shrift to plaintiff s conversion and breach of fiduciary duty causes of action. On the conversion claim, the panel stated that any conversion, i.e., the sale of the farmland, took place in 1992 or 1993 or both and thus was barred by the 2-year statute of limitations period of K.S.A. 60-513(a)(2) or by the 10-year statute of repose under K.S.A. 60-513(b). The panel also cited the 10-year statute of repose on the breach of fiduciary duty claim. Hemphill, 44 Kan. App. 2d at 600-01.
Moreover, to the extent plaintiff attempted to rely on his minority at the time the conversion and breach of fiduciary duty claims arose, the panel held that the 1-year accommodation contained in K.S.A. 60-515(a) for persons who are minors when their causes of action accrue was limited by the 8-year statute of repose in the same subsection; the 8 years had run long before plaintiff filed suit. Hemphill, 44 Kan. App. at 601-02.
In rejecting plaintiff s breach of trust claim for failure to provide accountings and reports, the panel first ruled that the Kansas Uniform Trust Code, which did not become effective until January 1, 2003, did not apply. Hemphill, 44 Kan. App. 2d at 602. Under earlier governing law, the panel ruled, plaintiffs claim that defendant breached the trust was barred by the 5-year statute of limitations in K.S.A. 60-511(1), which covers causes of action arising out of written contracts or promises. In the Court of Appeals’ view, any obligation to account or report ended with defendant’s sale of the farmland in 1993 at the latest, and no cause of action for breach of the trust could be brought later than 1998. Hemphill, 44 Kan. App. 2d at 602-03.
The panel then turned to plaintiff s constructive fraud claim. It first recited the definition of such a claim from Nelson v. Nelson, 288 Kan. 570, 583, 205 P.3d 715 (2009):
‘[A] breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty [n]or purpose of intent to deceive is necessary.’ ” [Citation omitted.] Two additional elements must also be proven in order to establish constructive fraud: (1) a confidential relationship, and (2) a betrayal of this confidence or a breach of a duty imposed by the relationship. [Citation omitted.]’ Schuck v. Rural Telephone Service Co., 286 Kan. 19, 26, 180 P.3d 571 (2008).”
The panel then noted the general rule tiiat fraud must be pled with particularity. See K.S.A. 60-209(b). But it observed that this court had not determined whether this heightened pleading standard applied to constructive fraud, an issue on which there is a split of authority. Hemphill, 44 Kan. App. 2d at 603-04; see Nelson, 288 Kan. at 583-84. The panel ultimately was persuaded that constructive fraud claims should be subject to the heightened pleading standard, Hemphill, 44 Kan. App. 2d at 604-06, and it decided that plaintiffs allegations did not measure up:
“Hemphill’s second amended petition alleges tiiat ‘[s]hortly after Susan L. Shore’s death, the Trust’s remaining trustee, Defendant, sold the farm ground tiiat previously comprised the principal of the Trust and distributed all or a substantial portion of the proceeds to himself, which proceeds were upon information and belief, used by Defendant for his own personal purposes.’ This allegation does not identify the time, place, or content of the sale of the ‘farm ground.’ Moreover, the allegation does not assert anything was improper or fraudulent about the sale of the farm land or about the distribution of the proceeds from the sale of the farm land.
“As stated earlier, Hemphill filed suit in this matter on April 8, 2009. Even the latest period of the alleged wrongdoing—the selling of the farm land and die misappropriation of the proceeds from the sale of the farm land in 1993—oc-curred over 15 years before the filing of the suit. Hemphill has failed to either plead or present any facts which indicate when the alleged fraud was discovered. In addition, the petition fails to allege tiiat the fraud was not and could not have been discovered earlier than 2 years preceding the commencement of suit on April 8, 2009.” Hemphill, 44 Kan. App. 2d at 606-07.
After further analysis, the panel held that plaintiffs petition failed to state a claim upon which relief could be granted and affirmed the district judge’s dismissal of this case. Hemphill, 44 Kan. App. 2d at 607-10.
Discussion
When a motion to dismiss raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff s petition. K.S.A. 60-212(b)(6). Dismissal is justified only when the plaintiff s allegations clearly demonstrate that plaintiff does not have a claim. Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 250, 978 P.2d 922 (1999). When a district court has granted a motion to dismiss, an appellate court must accept as true the facts alleged by plaintiff, along with any inferences that can reasonably be drawn from the facts. The appellate court then must decide whether those facts and inferences state a claim based on plaintiff s theory or any other possible theory. If so, the dismissal by the district court must be reversed. Rector v. Tatham, 287 Kan. 230, 232, 195 P.3d 364 (2008).
Although defendant attached an affidavit and trust tax return to his motion to dismiss, it is evident from the district court judge’s journal entry of dismissal that the judge did not consider the affidavit or tax return in his ruling. We therefore continue to treat the motion as one to dismiss rather than one for summary judgment. See Seaboard Corporation v. Marsh Inc., 295 Kan. 384, 392-93, 284 P.3d 314, 319-21 (2012).
Unlike the materials attached to the motion to dismiss, the trust instrument itself was considered by the district court and the Court of Appeals and may be considered by this court; it qualifies as integral to the plaintiff s second amended petition, to which it was attached and in which it was referenced. See K.S.A. 60-209(h). We treat the trust instrument like any other written instrument on appeal, which means the district judge’s legal interpretation of its language is subject to our de novo review. See Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 353, 64 P.3d 395 (2003).
By the time the parties reached oral argument before this court, they were in agreement that plaintiff s breach of trust, breach of fiduciary duty, and conversion causes of action were time barred. They further agreed that, if plaintiff s constructive fraud claim was adequately pled, including the timing of plaintiff s discovery of de- fendanfs alleged betrayal of the confidential relationship between the parties, this suit could survive for pursuit of judgment on that one cause of action.
These agreements considerably simplify the task before us. In their wake we discern a series of three questions that must be answered to resolve this appeal: (1) Did the district court judge correctly interpret the language of the trust instrument to invest defendant with totally unfettered discretion to pay out income and invade and distribute the proceeds from sale of the trust principal for his personal benefit? (2) Regardless of the statute of limitations, did plaintiff allege facts to support the elements of constructive fraud sufficient to meet the applicable pleading standard? and (3) Once defendant moved to dismiss, arguing that his affirmative defense of the statutes of limitations and repose barred the plaintiff s claims as a matter of law, did plaintiff respond with adequate allegations that, if proved, would make the discovery rule of K.S.A. 60-513(a)(3) applicable and the 10-year statute of repose in K.S.A. 60-513(b) inapplicable?
We analyze and answer each of these three questions in the sections below.
Interpretation of Trust Instrument
The first question focuses on the trust instrument language. Our fundamental goal in interpreting such an instrument is implementation of the grantors’ intent. If the trust language is plain and unambiguous, then tire grantors’ intent can be ascertained from language used. If the trust language is ambiguous, then a construing court must place itself as nearly as possible in the position of the grantors and consider all of the language in the entire instrument to ascertain the intent. McGinley v. Bank of America, N.A., 279 Kan. 426, 437, 109 P.3d 1146 (2005).
Kansas recognizes both discretionary trusts and support trusts. A discretionary trust is established when the grantor gives the trustee discretion to make distributions from the trust, and the beneficiary has no legal authority to force the trustee to make a distribution to the beneficiary from either the income or principal. Miller, 275 Kan. at 354. A support trust, on the other hand, is established when the trustee “is required to inquire into the basic support needs of the beneficiary and provide for those needs,” and the beneficiary has the legal right to demand payment for support. Miller, 275 Kan. at 354.
Both the district court judge and the Court of Appeals panel treated the language of the trust instrument as though it unambiguously established a purely discretionary trust. The instrument does include several references to decisions to be made in “the sole discretion” or in “the discretion” of the trustee. At least one provision, that governing discretionary determination of the trust, places the determination of the continuing economic usefulness of the trust in the trustee’s “sole and absolute discretion.” Still other provisions reference decisions to be made “as the Trustee determines.”
However, when we focus on the provision most critical to this appeal, the one on which plaintiff s constructive fraud claim hinges, Article IV, Section B.l, a more limited picture of the trustee’s authority emerges. Under the first paragraph of that subsection, the trustee is permitted, in the trustee’s sole discretion to pay income generated by trust assets only in diose amounts the trustee “deems necessary” to provide for Jay’s, Susan’s and/or their children’s “health, education, support or maintenance.” (Emphasis added.) Under the second paragraph of that subsection, the trustee may determine whether the income of the trust is sufficient to provide for “the health, education, support or maintenance” (emphasis added) of Jay and Susan in the trustee’s “sole discretion”; only if such an insufficiency exists—that is, one obstructing provision for the health, education, support or maintenance—may the trustee invade principal as the “Trustee deems necessary to provide for the benefit of’ Jay and Susan.
The Shore Family Trust’s limitation of trustee payment of income and invasion or distribution of proceeds from the sale of the principal farmland to those situations when it is necessary to provide for the health, education, support, or maintenance of Jay and Susan is not mere window dressing. The list of those four purposes is a term of art under the Internal Revenue Code, known collectively as “ascertainable standards” and whose inclusion affects cal culation of estate and gift taxes. See 26 U.S.C. § 2041(b)(1)(A) (2006) (gross taxable estate of deceased person does not include trust assets decedent could have consumed, invaded, appropriated for own benefit during lifetime, if power of appointment limited by ascertainable standards related to person’s “health, education, support, or maintenance”).
“The underlying concept in the definition of an ascertainable standard rests upon the premise that a person who holds the power to render decisions pursuant to an ascertainable standard, such as a discretion given to a trustee to make distributions out of income or accumulations, really does not have a power, but rather a duty. It is basically a question of accountability .... Words such as support, education, maintenance, care, necessity, illness, and accident are generally regarded as providing ascertainable standards; while words such as happiness, pleasure, desire, benefit, best interest, and well-being are generally not regarded as being sufficiently definite so as to provide ascertainable standards.
“ ‘[A different result is not required] by reason of the fact that the trustees’ power was discretionary, for the exercise of that power was limited by an external standard fixed by the agreement itself. And although it may be true that a court of equity ordinarily will not substitute its discretion for that of the trustee, nevertheless, even where the power is granted in terms of the “sole” or “uncontrolled” discretion of the trustee, it will review his action to determine whether in light of the standards fixed by the trust instrument, such discretion has been honestly exercised.’ [Citations omitted.]” Estate of Fred A. Cutter, 62 T.C. 351, 356 (Tax Ct. 1974).
See e.g., Markham v. Fay, 74 F.3d 1347, 1358 (1st Cir. 1996) (citing cases interpreting trustee powers for federal estate tax; ascertainable standards limit trustee discretion when principal, income to be distributed for specific purpose such as education, support); Outwin v. Commissioner of Internal Revenue, 76 T.C. 153, 161-62, 168-69 (Tax Ct. 1981) (lack of ascertainable standards in trusts means no surrender of dominion and control over trust assets); Falk v. Commissioner of Internal Revenue, T.C. Memo 1965-22, No. 139-63, 1965 WL 622 (Tax Ct. 1965) (trust instrument limiting trustees’ power to distribute income, principal to when necessary for wife’s “adequate care, comfort, support and maintenance,” considering other funds available to her, provided ascertainable standards); see also Hyde v. United States, 950 F. Supp. 418, 419 (D.N.H. 1996) (citing 26 U.S.C. § 2041[b][l][A] [1994]; Treas. Reg. § 20.2041-l[c], -3[c][2] [1995]) (defining ascertainable stan dards needed to avoid estate tax); Estate of Schlotterer v. United States, 421 F. Supp. 85, 90 (W.D. Penn. 1976) (“no question that if the power to consume either income or corpus is limited by . . . provisions for the life tenant’s health, education, support or maintenance in her usual comfortable circumstances, these are ascertainable standards”); National Bank of Com. of San Antonio v. United States, 369 F. Supp. 990, 992 (W.D. Tex. 1973) (trustee’s limitation to spending for “ ‘benefit’ ” of wife “ ‘so loose’ ” that trustee effectively “ ‘uncontrolled’ ”); Loyd v. United States, 319 F. Supp. 237, 239 (W.D. Tenn. 1970) (direction to trustee to encroach on corpus for pleasure of niece inadequate as reasonably ascertainable standard); Carlson v. Sweeney, Dabagia, Donoghue, 895 N.E.2d 1191, 1193-94 (Ind. 2008) (ascertainable standards for distribution of trust principal needed to avoid estate tax liability). The inclusion of ascertainable standards in the trust instrument in this case means that the trust was not purely discretionary. This means that Jay, as sole trustee after Susan’s death, was not free to pay out income or invade the principal for any amorphous “benefit” to himself. The district court judge and the Court of Appeals erred on this point.
In addition to what we know generally about trust instrument scrivener and grantor motivations to include ascertainable standards to limit a trustee’s discretion for tax purposes, other language in the trust instrument at issue here supports our assessment of the grantors’ intent. Article VII, Section M is labeled “Trustee Guidelines,” and it expressly states that the primary purpose of the trust “is to provide for the specified needs” of Jay and Susan “in equal shares.” If this primary purpose is accomplished, then the purpose shifts to provide for the “specified needs” of their children. The specified needs in this section are intended to refer back to those four listed in Article IV, Section B.l. The grantors expressly dedicated both income and principal to funding these needs, not to grant a general benefit to Jay. Again, the district judge and the Court of Appeals panel erred to the extent they interpreted or construed the trust instrument otherwise.
Adequacy of Pleading of Constructive Fraud
The second question we must address is whether plaintiff alleged facts to support the elements of constructive fraud sufficient to meet the applicable pleading standard.
Our Court of Appeals panel was correct that this court has not previously decided whether a constructive fraud cause of action is subject to K.S.A. 60-209(b)’s heightened pleading standard. See Nelson, 288 Kan. at 583-84; compare K.S.A. 60-209(b) (circumstances constituting fraud “shall be stated with particularity”) and K.S.A. 60-208(a)(l) (pleading shall contain “short and plain statement of the claim showing that the pleader is entitled to relief’). But we disagree with the panel on whether the question requires an answer in this case. Putting aside for the moment any potential time bar, we hold that plaintiff s pleading of his constructive fraud claim in his second amended petition, with its attachment of the integral trust instrument, met either standard.
Constructive fraud does not require proof of actual dishonesty or a purpose or intent to deceive. It requires only that a confidential relationship existed between the parties and that defendant’s behavior constituted a betrayal of this confidence or a breach of duty imposed upon him by his relationship with plaintiff. The law calls such a betrayal or breach “fraud” because of its tendency to deceive or to violate a confidence, regardless of moral guilt. See Schuck, 286 Kan. at 26.
The trust instrument before us demonstrates the undeniable existence of a confidential relationship between, on the one hand, plaintiff as a beneficiary and, on the other hand, defendant as sole trustee during the period between Susan’s death in 1992 and what defendant represents was the termination of the trust in 1995. As we have discussed in the preceding section, the trustee’s authority to pay out trust income or invade and distribute proceeds from the trust principal was not limitless. In paragraphs 11, 14, and 18 of the second amended petition, plaintiff repeatedly alleged that defendant appropriated the assets of the trust for his own personal purposes, which the ascertainable standards in the trust instrument did not allow. If true—and on motion to dismiss we are required to assume such truth—these allegations are sufficient to constitute a betrayal of the parties’ confidential relationship or a breach of a duty the relationship imposed. Such a betrayal or breach is worthy of its legal classification as a constructive fraud, regardless of whether defendant bears any moral guilt.
Application of Statutes of Limitations and Repose
The third question is whether plaintiff responded adequately to defendant’s assertion in his motion to dismiss of the statutes of limitations and repose as affirmative defenses. Plaintiff argues correctly that a defendant has the burden to raise such affirmative defenses. See Meek v. Ames, 175 Kan. 564, 567-68, 266 P.2d 270 (1954). But, once that happened through defendant’s motion to dismiss, plaintiff bore the burden to allege facts supporting his argument that his claim was not time barred. See Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992).
Here, plaintiff filed a memorandum in opposition to the defense motion to dismiss, as well as a motion to amend his first amended petition, which was granted. We therefore rely on plaintiffs allegations in both the memorandum in opposition, see Meek, 175 Kan. at 567 (plaintiff s allegations in reply to be considered in whether defense asserted in answer, motion rebutted), and the second amended petition to determine whether plaintiff asserted facts, if assumed to be true, that would make the discovery rule of K.S.A. 60-513(a)(3) applicable and the 10-year statute of repose in K.S.A. 60-513(b) inapplicable.
Plaintiff correctly relies upon our decision in Jennings v. Jennings, 211 Kan. 515, 507 P.2d 241 (1973), for the governing legal framework on this set of issues. In that case, the plaintiff beneficiaries sued the person to whom they believed a trustee had transferred trust assets in violation of the grantors’ intent. The defendant argued that the applicable statutes of limitations and repose barred the action.
This court first addressed whether the cause of action sounded in fraud and concluded that “a trustee who breaches or repudiates a trust agreement commits an act which necessarily encompasses fraud.” Jennings, 211 Kan. at 524. It then examined the record to determine whether the plaintiffs discovered or should have discovered the fraudulent acts of the trustee more than 2 years before filing suit. It determined that the record supported the plaintiffs’ position that they had no “knowledge or information which would arouse suspicion or alert them to wrongdoing on the part of the trustee” during his lifetime. Jennings, 211 Kan. at 523. The plaintiffs filed suit 4 months after the trustee’s death, which fell well within 2 years after their discoveiy of the fraud, as required under what is now K.S.A. 60-513(a)(3). Jennings, 211 Kan. at 520, 523-25.
In addition, the Jennings court rejected the defense assertion that the 10-year statute of repose now in K.S.A. 60-513(b) was applicable. It stated:
“The provision for the ten-year limitation period does not mention fraud or the discoveiy of fraud, but refers to those cases where the fact of injury may become ascertainable sometime following the act causing the injuiy. In an action based upon fraud, its discovery is simultaneous with the discovery of the injuiy resulting therefrom. In order to harmonize the statute and give effect to each of its provisions we must conclude the legislature did not intend that an action based on fraud was subject to die ten-year limitation.” Jennings, 211 Kan. at 527.
In this case, plaintiff s second amended petition does not speak directly to the issue of when defendant’s alleged constructive fraud was discovered. However, it does state that plaintiff was bom sometime between the execution of the trust instrument in December 1984 and the death of plaintiffs mother in January 1992. At most, this means plaintiff was 7 years old when his mother died. Plaintiffs memorandum in opposition to the defense motion to dismiss does speak directly to the timing of discoveiy, stating clearly that plaintiff “did not even discover the existence of the Trust until his grandmother’s estate was probated in 2008.”
Assuming as we must the truth of this statement, plaintiff did not discover the alleged fraud or learn facts that would lead a reasonably prudent person to investigate until within 2 years before the filing of this lawsuit, as required by K.S.A. 60-513(a)(3). See Robinson v. Shah, 23 Kan. App. 2d 812, 824-25, 936 P.2d 784 (1997) (citing Dalton v. Lawrence National Bank, 169 Kan. 401, Syl. ¶ 6, 219 P.2d 719 [1950]). And the 10-year statute of repose in K.S.A. 60-513(b) does not apply to actions for fraud. See Jennings, 211 Kan. at 527. Hence, plaintiffs constructive fraud cause of action was timely filed.
Conclusion
Plaintiff Hemphill adequately pled a timely constructive fraud claim. He attached the integral trust instrument to his pleadings, which demonstrated the existence of a confidential relationship between himself and defendant. We interpret that instrument as a matter of law to have placed certain limitations on the nature of the uses to which defendant could put trust income and principal; and plaintiff s pleadings alleged that defendant deviated from those purposes when he paid out trust income and distributed proceeds from the sale of the trust principal farmland. These allegations satisfied either the usual pleading standard or heightened pleading standard applicable to fraud. In addition, plaintiffs response to defendant’s assertion of the affirmative defenses of the statutes of limitations and repose was an allegation we must, at this stage of the proceedings, take as true: The plaintiff did not discover the existence of the trust nor any constructive fraud arising out of it until 2008, less than 2 years before filing suit.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of dismissal by the district court is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Holmes, J.:
Sandra Sue Dublin Adams (Sandra) appeals from a decision in a divorce proceeding upholding the validity of an antenuptial agreement between her and her husband, Raymond E. Adams, Jr. (Raymond). Appellant asserts the agreement is invalid and seeks a new trial on the issues of alimony (maintenance) and division of property.
The trial court, in its memorandum opinion, stated the facts as follows:
“Respondent, Sandra Sue Dublin Adams, 49, and petitioner, Raymond E. Adams, Jr., 53, were married in Maple Hill, Kansas, on December 18, 1976. The parties signed an antenuptial agreement on December 18, 1976, during the hour preceding the wedding ceremony. The agreement was signed at the petitioner’s ranch office near the home where the wedding ceremony was held.
“Prior to their courtship respondent and petitioner and their respective spouses were acquainted for some period of time. Respondent knew in a general way the substantial nature of the petitioner’s holdings which he acquired by way of inheritance from his parents and by his own business and cattle ranching endeavors.
“Respondent, a talented and experienced real estate agent, though self-sufficient, held no significant interests or holdings of financial value and was supporting her children from her previous marriage.
“Early on in the courtship, in August of 1976, the petitioner made it clear to respondent that he would not remarry anyone unless they signed an antenuptial agreement, stating that he wished to protect his children from his previous marriage. This upset the respondent, and she advised petitioner that she did not like such agreements and did not want to sign one.
“The parties continued to see each other and in October, 1976, set their wedding date for December 18, 1976. The wedding arrangements progressed quite well; respondent traveled to Kansas City on October 9, 1976, and picked out wedding rings. Arrangements for her children’s schooling were made; respondent terminated her business affairs in New Mexico and moved to Kansas around December 11, 1976, and professional packers assisted in the move. Caterers were hired, wedding clothes were selected, invitations were sent, a special cake was ordered, the honeymoon arranged; truly the wedding was fully and carefully planned, ready to proceed . . . meanwhile legal arrangements were not proceeding so proficiently.
“On December 7, 1976, prior to respondent’s move to Kansas, she received a telephone call from the petitioner who indicated he was calling from his attorney’s office in Wichita, Kansas and that he was having the attorney draft an antenuptial agreement. Respondent voiced her objection to signing any agreement. Petitioner indicated that the agreement would be sent to respondent’s attorney in New Mexico. Respondent contacted her attorney in New Mexico advising him of the situation and consulting with him. The New Mexico attorney had already been contacted by petitioner’s Kansas attorney.
“Subsequently, petitioner traveled to New Mexico and he and respondent met with respondent’s attorney. Petitioner was advised respondent did not accept the agreement. Petitioner and respondent did not discuss the matter any further at that time. Respondent left for Kansas to live with her prospective mother-in-law prior to the wedding but before doing so contacted her attorney and asked him to draft her version of an antenuptial agreement for the parties indicating that she objected to antenuptial agreements but would sign one. He was to send a draft to her and the petitioner.
“Respondent arrived in Kansas one week before the wedding, stayed at her prospective mother-in-law’s home and finalized the wedding arrangements. The subject of antenuptial agreement was not brought up again between the parties until the wedding day.
“On that day, within one hour from the time that the wedding was to commence, petitioner arrived at his mother’s home where respondent was staying and getting dressed for the wedding. He asked her to accompany him to his office, a short distance away, to sign an antenuptial agreement and he indicated once again that unless there was an agreement there would be no wedding. Respondent was upset, but accompanied petitioner to his office. She examined and freely and voluntarily executed the antenuptial agreement along with the petitioner in the presence of a witness.
“Respondent signed the agreement, although she opposed the whole idea of the agreement in itself, and possibly some of the terms thereof.
“The agreement signed was a copy of the initial agreement proposed by the petitioner but initially rejected by the respondent which was the only document available at the time. Each party knew and understood the contents of the agreement and believed it was binding upon them and the marriage at the time it was signed. Each party had undergone a prior divorce and understood the legal significance of the document. Each party had prior business experience and was astute in financial dealings.
“The consequence of not signing the agreement was clear to the parties, first as to how marriage affected their property rights and secondly the consequence that if it was not signed, petitioner’s obvious and long known position that there would be no wedding would come true.
“The wedding was held, and the couple left for a short honeymoon. Respondent’s proposed antenuptial agreement, prepared by her attorney in New Mexico, arrived in the mail shortly thereafter. It was generally similar to the one executed by the parties prior to the marriage.”
The facts recited by the trial court are, for the most part, supported by substantial competent evidence. The court then went on to state:
“After careful consideration of the evidence and particularly the circumstances of the parties at the time of the making of the agreement and its provisions, the court finds that the agreement should be upheld and enforced.
“The court finds that the agreement was fairly and understandably made. Respondent knew generally of the nature and extent of the petitioner’s wealth. Considering her situation at the time of the marriage, the agreement which she made guaranteed her lifelong security and comfort. Through her, this extended to the children she supported. The agreement also protected the inheritance of the petitioner’s children.
“The court further finds that there is no evidence to substantiate a claim of fraud and overreaching. Petitioner’s good faith is evidenced further by his voluntarily purchasing one million dollars of life insurance payable to the respondent after the marriage and his voluntary financing of her children’s support and higher education.
“The court further finds the agreement was not void as to public policy and did not encourage separation. Their situation was such that, each being married before with children from those marriages, an antenuptial agreement was appropriate to protect all parties’ interests. The terms of the agreement are such that each party had something to lose should the parties separate.
“The agreement therefore, being just and equitable, fairly and understandably made and not reached by fraud or overreaching is upheld and shall prevail as to the provisions contained therein.
“IT IS SO ORDERED.”
Refore turning to the specific issues herein, we deem it advisable to iterate certain general principles applicable to this type of action. In Matlock v. Matlock, 223 Kan. 679, Syl. ¶ 1, 576 P.2d 629 (1978), we held:
“The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers and to uphold such contracts where they are fairly and understandably made, are just and equitable in their provisions, and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties.”
Herman v. Goetz, 204 Kan. 91, Syl. ¶ 3, 460 P.2d 554 (1969), provides:
“In determining whether an antenuptial contract should be sustained, unreasonable inadequacy of a provision for the intended wife, or disproportion of the share she will receive, cannot be concluded from the contract alone but can only be determined from a consideration of all the circumstances. Not only is the amount of the husband’s property a factor — consideration should be given to the situation of the parties, as compared to each other, their respective property, their family ties and connections, and the whole circumstances leading up to the execution of the contract and their marriage, the question in the end being whether, in view of all the facts, the intended wife was overreached.”
The agreement entered into by the parties provided in paragraphs one and two that each party would retain his and her separate property and absolute control over it to the same extent as if the parties were not married. Paragraph three stated Raymond was not relieved of his legal duties to support Sandra during the marriage relationship. Paragraph five covered the distribution of property in the event of the death of either party, six covered after-acquired property, and seven provided that the agreement was binding upon the parties’ successors and legal representatives. Paragraph four, which is directly involved ip these proceedings, states:
“4. In the event of the separation or divorce of the parties, Adams shall pay unto Frizell [Sandra] the sum of Twenty-four Thousand Dollars ($24,000) within 30 days after the earlier of said events, and the sum of Twenty-four Thousand Dollars ($24,000) on each anniversary date thereof, until the earlier of 1) the death of Adams, 2) the death of Frizell, 3) the remarriage of Frizell, or 4) the date of mutual agreement of the parties to recommence living together as husband and wife. It is agreed that the provisions of this paragraph 4 shall be in lieu of and in full satisfaction of all claims for alimony, both temporary and permanent, attorneys’ fees or any other interest to which Frizell would otherwise be entitled in the event of a separation or divorce of the parties.”
Additional facts will be stated as necessary in determining the issues raised by the appellant.
Appellant raises several issues, the first being that the antenuptial agreement is invalid and that the court abused its discretion in its decision. She contends the decision is contrary to the evidence in that (1) it was obtained through fraud and overreaching; (2) it was not fairly and understandingly made; and (3) it violates public policy. The evidence concerning the various discussions by the parties between the summer of 1976 until the wedding in December, relative to the execution of an antenuptial agreement, was hotly disputed. Sandra testified it was only mentioned a couple of times and on each occasion when she stated she did not want to sign an antenuptial agreement, Raymond would “back off’ and state it wasn’t important. Raymond, on the other hand, testified he had made it clear from the beginning there would be no marriage unless there was an agreement. Roth parties had obtained divorces in 1976 and both were still acutely aware of the results of such proceedings. Sandra also contended that at the time she signed the contract Raymond promised to change the agreement upon their return from the honeymoon. Raymond denied ever having discussed any changes in the agreement or that he had stated it would be changed. Sandra testified she was distraught and upset when Raymond approached her the morning of the wedding and insisted she sign the agreement. She also testified she cried all the way to the office and on the return therefrom. Raymond testified she did not appear upset, was not crying, and, while stating she didn’t like the idea of the agreement, she did not refuse to sign it or object to signing it. Other facts were subject to the same type of diametrically opposed testimony.
Sandra claims the parties’ antenuptial agreement is unenforceable because she did not understandingly enter into the agreement; and/or she entered into the agreement due to the fraud, duress, and overreaching of Raymond. Sandra cannot be heard to say she did not understand the agreement or the consequences of it. The agreement signed was the identical agreement she reviewed with her attorney in New Mexico. The terms of the agreement are clear and unambiguous. She testified she knew what she was signing. Sandra had been advised generally of the nature and extent of Raymond’s assets and knew he was a multimillionaire. She had known him more than twenty years and her father had worked for Raymond during a large portion of that time. She had visited Raymond’s various ranch properties and oil and gas holdings. We think it is clear that Sandra signed the agreement fully aware of its contents and the consequences of it. There is substantial competent evidence to support the trial court’s findings and conclusions on these issues. When the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Friedman v. Alliance Ins. Co., 240 Kan. 229, Syl. 14, 729 P.2d 1160 (1986); Holly Energy, Inc. v. Patrick, 239 Kan. 528, Syl. ¶ 2, 722 P.2d 1073 (1986).
Appellant’s next argument under her first issue is whether she executed the antenuptial agreement voluntarily of her own free will or due to the coercive circumstances existing at the time. There have been numerous cases where a prospective wife was presented with an antenuptial agreement shortly before the wedding and, as might be expected, the courts have reached differing results based upon the factual circumstances of each case.
In Pattison v. Pattison, 129 Kan. 558, 283 Pac. 483 (1930), the wife brought an action to recover certain real estate devised by her husband to his children from a previous marriage. The devisees defended the action based on the terms of an antenuptial contract which was alleged to exist between the plaintiff and her deceased husband. Plaintiff sought to have the agreement voided based on several grounds similar to those presented in the case at bar. The trial court entered judgment for the defendants based upon the pleadings and opening statements of counsel. The plaintiff appealed. On review this court observed that the deceased had presented the agreement for signature on the very day of their wedding. The court, in reversing the trial court, stated:
“The safe and certain way to have safeguarded that matter was for Pattison to have dealt fairly with his affianced bride, to have made a fair and reasonable provision for her out of his estate in consonance with his and her financial circumstances, and to have made'sure that she understood what she was doing. An excellent and seemly course would have been to see to it that plaintiff had independent advice before she put her hand to that contract. It was tactless, if not manifestly unfair, to present to her for her signature on her wedding day this antenuptial contract of which she had no previous intimation and as to the effect of which she had no understanding. That, at least, is the substance of her pleading and the opening statement of her counsel. This court holds that a cause of action was stated in plaintiff s behalf.” 129 Kan. at 562.
Sandra relies heavily upon the Florida case of Lutgert v. Lutgert, 338 So. 2d 1111 (Fla. Dist. App. 1976), to support her claim of undue influence. The facts in Lutgert are quite similar to those in the case at bar. In Lutgert the litigants and their respective spouses were acquainted socially for a considerable period of time. F ollowing each party’s divorce they began seeing one another. Their relationship grew into a love affair which was culminated by engagement in March of 1965. During the several months preceding their engagement, the subject of an antenuptial agreement had been brought up by Mr. Lutgert on more than one occasion. The bride-to-be objected to such an agreement. On April 29, 1965, the day of their wedding, the couple stopped by the jewelers to pick up their wedding rings. While at the jewelers, Mr. Lutgert took the agreement out of his pocket and for the first time presented it to his prospective wife to be signed. The bride-to-be refused. A phone call to his attorney followed, as did statements to the effect that there would be no wedding if the agreement was not executed. Ultimately, she signed the agreement. Under the terms of the agreement the wife was to receive $1,000 a month in alimony in case of divorce, although the husband’s wealth was estimated at three to twenty-five million dollars. The Florida court concluded:
“The question here is not whether the wife knew what she was signing or what she was or was not getting. The agreement is clear on its face and she can’t be heard to deny its contents. The question is whether she, in the free exercise of her will, voluntarily signed it. Evidence that she may have gotten some legal advice has no great impact on this issue either. For one thing, the only evidence of legal advice is that within twenty four hours before the wedding, when the husband first presented the antenuptial agreement and she rebelled, she spoke on the telephone to his lawyers; and we have already indicated that the documentary evidence conclusively demonstrates that this conversation could not and did not result in any change in the agreement enuring to the benefit of the wife. Additionally, in the face of the grossly disproportionate benefit to the husband, whatever legal advice she may have gotten at that time certainly wouldn’t tend to neutralize the other coercive factors bearing on her volition.” 338 So. 2d at 1116-17.
Other cases reaching similar results, relied upon by appellant, can be readily distinguished from the case at bar based upon the facts peculiar to each case. See Norris v. Norris, 419 A.2d 982 (D.C. 1980); In re Estate of Maag, 119 Neb. 237, 228 N.W. 537 (1930); Zimmie v. Zimmie, 11 Ohio St. 3d 94, 464 N.E. 2d 142 (1984); Marriage of Matson, 41 Wash. App. 660, 705 P.2d 817 (1985).
Raymond, on the other hand, relies upon numerous cases which have upheld antenuptial agreements even when executed shortly before the wedding. In Matlock v. Matlock, 223 Kan. 679, the wife in a divorce case sought to avoid the consequences of an antenuptial agreement which she signed the day before the wedding. The agreement provided each party would retain his and her separate property and in the event of divorce the wife waived any claim to support, alimony, attorney fees, or any interest in the husband’s property. The trial court upheld the validity of the agreement. In affirming the trial court, this court stated:
“On the appeal Norma Matlock raises the same basic issues which she raised in the trial court. She contends that the trial court erred in finding that the antenuptial agreement was fairly and understandably made and was not the result of fraud or overreaching when the evidence showed that she did not fully understand or have full knowledge of what she was signing and did not have the independent advice of counsel. The issues presented are essentially fact issues which the trial court resolved against the wife. Under established rules of law this court is required to uphold the trial court findings if they are supported by substantial competent evidence. (Ranney v. Ranney, 219 Kan. 428, 548 P.2d 734 [1976].) . . . We have carefully reviewed the record and find substantial competent evidence to support the findings of the trial court that the antenuptial agreement was fairly and understandably made and was not the result of fraud or overreaching.”
Other cases supporting Raymond’s arguments include In re Estate of Cantrell, 154 Kan. 546, 119 P.2d 483 (1941), and Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537 (1885), where in each case the antenuptial agreement was signed the day of the wedding. The most that can be drawn from a review of these and other authorities is that each case must be decided upon its own facts by application of the general legal principles set forth earlier in the opinion.
The trial court’s determinations that the agreement was fairly and understandingly made and was not obtained through fraud or overreaching on Raymond’s part are supported by the evidence and therefore cannot be set aside by this court.
The next issue raised by Sandra is her claim that the antenuptial agreement in question is void as against public policy because it tends to promote or facilitate separation or divorce. Traditionally there was a distinction between antenuptial agreements which were entered into in contemplation of death, and fixed the parties’ rights upon that contingency, and antenuptial agreements which dealt with divorce. Most of the early cases arose from the death of one of the parties and not from divorce. Agreements detailing the rights of the parties in their property upon the death of either spouse were favored by the law and liberally enforced. Hafer v. Hafer, 33 Kan. 449. Conversely, contracts containing terms conducive to or promoting divorce were held to violate public policy. Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1 (1896). The more modern rule is that any antenuptial agreement which is fairly and understandingly made, equitable in its provisions, and not obtained through fraud or overreaching will be upheld. Matlock v. Matlock, 223 Kan. at 683. The instant agreement made provisions for Sandra in the event of divorce which the trial court found to be fair under all the circumstances and which did not operate to encourage separation or divorce. We agree that the antenuptial agreement of the parties is not void as being contrary to public policy.
Next, appellant asserts the trial judge erred when he stated in his written opinion:
“Considering her situation at the time of the marriage, the agreement which she made guaranteed her lifelong security and comfort.”
The statement is subject to interpretation. Considering the fact that the support payments provided in the agreement will cease during Sandra’s lifetime if Raymond predeceases her, the statement could be considered misleading and conceivably erroneous. However, Sandra also retained all property she brought into the marriage, together with the income or increments therefrom, and the trial court may have been referring to that provision of the agreement. We do not conclude that the statement of the trial court is such that the agreement must be invalidated. The terms affecting termination of alimony were identical to those suggested by Sandra’s New Mexico attorney and were not unusual in their provision that alimony or maintenance would cease upon the death of either party. The statement that the agreement provided Sandra security for life has no bearing upon the factual determinations that she freely and knowingly entered into the agreement free of any fraud or overreaching by Raymond. Having done so, she can not avoid its terms based upon her interpretation of one isolated statement by the court in its opinion.
Finally, appellant asserts error based upon the trial court’s limitation of discovery pertaining to the financial condition of appellee. As indicated earlier, Sandra had a comprehensive general knowledge of Raymond’s assets. She was familiar with his farm, ranch, and oil and gas holdings, much of which had been in the Adams family for over 100 years and which he wanted to preserve for his children. Raymond had furnished Sandra’s attorney with a statement of assets reflecting his vast holdings in Shawnee, Wabaunsee, Meade, and Seward Counties in Kansas, and in Reaver County, Oklahoma. He had disclosed a cattle inventory of approximately $1,500,000.00 and potential income tax refunds of $150,000.00. The 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 a clear abuse of discretion. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131-32, 671 P.2d 511 (1983). Considering the large amount of information which was disclosed and available to Sandra, the limited restriction placed upon discovery by the trial court cannot be said to amount to an abuse of discretion.
In view of the decision reached, it is not necessary to consider the cross-appeal of the appellee.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff Henry Hollingsworth was injured in an industrial accident and brought this action seeking damages therefor. The district court entered summary judgment in favor of defendant Farmland Industries, Inc., on the basis that said corporation was a statutory employer of plaintiff and, hence, immune from liability in the negligence action herein. Plaintiff appeals from this entry of summary judgment.
The uncontroverted facts may be summarized as follows. In 1984, Cooperative Farm Chemicals Association (CFCA) operated a facility at Lawrence, Kansas, for the production of nitrogen fertilizers from natural gas. At that time, CFCA was a separate corporate entity with 75 percent of its stock being owned by defendant Farmland Industries, Inc., (Farmland) and 25 percent being owned by Missouri Farmers Association. Operation of the Lawrence plant was CFCA’s only activity. The entire output of the plant was distributed to its two shareholders proportionate to their shares in CFCA. Approximately 270 people were employed by CFCA to operate the plant, including some 90 maintenance personnel. The facility contained complex chemical processing equipment which included reactors, boilers, and cooling towers.
Farmland is an agricultural cooperative supplying some 500,000 midwest farmers with products needed for agricultural pursuits. In May 1985, CFCA was merged into Farmland.
Operation of the Lawrence facility requires periodic shutdowns for normal maintenance and to effect necessary repairs. This procedure is known as a “major turnaround.” On August 29, 1984, CFCA resumed operations following completion of a major turnaround. On September 2,1984, a significant leak occurred in the north waste heat boiler, necessitating a complete plant shutdown. The boiler is known in the business as a Kellogg 101C. The need to restore the plant to its operational status as quickly as possible necessitated repair work on a round-the-clock basis.
John T. Cody Corporation (Cody), an independent contractor, was employed to do the repair work. Cody began work immediately but soon discovered that the needed repairs were more extensive than originally contemplated and that the “tube bundle” on the 101C boiler would require replacement. Spare tube bundles were kept at the Lawrence plant for such a purpose. Tube bundles are large pieces of equipment weighing several tons and require a crane to move them. To replace a tube bundle the old unit is first removed. The new bundle is then lifted by a crane onto a low flatbed trailer which is then driven to the installation site and ultimately lifted by a crane into the boiler housing. The tube bundle is a component part of the boiler and replacement thereof does not involve replacement of the entire boiler.
On September 6, 1984, a Warner Swasey Model 4435 crane owned by CFCA and being operated by one of its employees, Francis Zeller, was moving toward the replacement tube bundle preparing to lift same onto a flatbed trailer. As the CFCA crane operator began preparing for the lift, a steel cable connected to a large hook and ball on the crane separated causing the hook and ball to fall onto plaintiff who was a boilermaker employed by Cody. Plaintiff was a part of a crew whose job it was to rig the container in which the spare tube bundle was located in order that the crane could lift it onto the flatbed trailer.
Plaintiff brought this action against Farmland (as successor to CFCA) alleging plaintiff s injuries had been caused by Farmland’s negligence. Fehrs Corporation was also named a defendant as manufacturer of the crane.
Defendant Farmland moved for summary judgment on the ground that Farmland was a statutory employer of the plaintiff, under K.S.A. 44-503, and therefore entitled to tort immunity under the Kansas Workmen’s Compensation Act. On February 5, 1986, summary judgment was granted to defendant Farmland. Fehrs was subsequently dismissed upon plaintiffs motion and is, therefore, no longer a party herein. Plaintiff challenges the propriety of the entry of summary judgment in this appeal.
The general rules relevant to the challenge to the summary judgment herein may be summarized as follows. 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. Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, Syl. ¶ 5, 695 P.2d 444 (1985); Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). When 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. Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, Syl. ¶ 2, 710 P.2d 1297 (1985); McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 (1983).
Some additional background is necessary before turning to specific contentions herein.
K.S.A. 1985 Supp. 44-501(b) provides:
“Except as provided in the workmens compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workmens compensation act nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workmen’s compensation is payable by such employer.” (Emphasis supplied.)
This statute is commonly referred to as the exclusive remedy provision of the Workmen’s Compensation Act, K.S.A. 44-501 et seq. If a worker can recover benefits for an injury from an employer under the provisions of the Workmen’s Compensation Act, its remedy is exclusive, precluding a common-law negligence action for damages against the employer. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 3, 658 P.2d 1004 (1983); Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 314, 564 P.2d 521 (1977). This furthers the policy and purpose of the Workmen’s Compensation Act, which is to provide an established source of benefits to the employee for injuries arising out of and in the course of his employment, and to shift from the employee to the industry certain burdens incidental to modern industrial operations. Duncan v. Perry Packing Co., 162 Kan. 79, 84, 174 P.2d 78 (1946). Further, the provisions of the Act are to be liberally construed to bring workers under the Act whether or not it is desirable for the specific individual’s circumstance. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 5.
Attention is now directed to K.S.A. 44-503(a), which provides:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workmen’s compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.” (Emphasis supplied.)
This section extends the application of the Workmen’s Compensation Act to certain individuals or entities who are not the immediate employers of injured workers.
In Hanna v. CRA, Inc., 196 Kan. 156, 409 P.2d 786 (1966), this court stated the following test for determining whether or not the injury-producing work is part of the principal’s trade or business under K.S.A. 44-503(a):
“(1) [I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) [I]s the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
“If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employee’s sole remedy against the principal is under the Workmen’s Compensation Act.” 196 Kan. at 159-60. (Emphasis supplied.)
See Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976).
In entering summary judgment for Farmland, the district court reasoned as follows:
“Was the work being performed by Cody and the plaintiff necessarily inherent in and an integral part of the principal’s trade or business? It seems that this question clearly must be answered in the affirmative notwithstanding the attempt by plaintiff and Bendix to isolate Cody’s activity to that of rebuilding rather than replacing a leaky tube bundle. They would have the court place Cody in a position similar to that of a manufacturer of tube bundles. This is simply not the case. Part of Cody’s duties were to rebuild the tube bundle after it was removed. Cody’s primary duty, however, was to remove the leaky bundle and install the replacement bundle so the plant could start back up as quickly as possible. This was the work that Cody was hired to do on CFCA’s premises. Cody would later rebuild the tube bundle off CFCA’s premises at its own leisure.
“The 101 C waste heat boiler was part of the integral equipment necessary to the operation of CFCA’s ammonia plant. When the leak developed in the tube bundle the entire plant had to be shut down and a twenty-four hour repair crew was hired to get the plant back into operation as quickly as possible. Contrary to the contentions made by plaintiff and Bendix, I do not believe it makes any difference whatsoever whether the tube bundle and/or the entire heat waste boiler needed to be repaired, rebuilt or replaced with a new unit. It is only logical to anticipate leaks will develop in this type of equipment and that it will eventually have to be repaired, rebuilt or completely replaced. Rebuilt or new equipment, whether required for replacement purposes or for increased capacity, are incidents essential to the proper maintenance of an ammonia plant or like facility. Lessley v. Kansas Power & Light Co., 171 Kan. 197, 208, 231 P.2d 239 (1951).”
In essence, the district court found that the first test of Hanna had been met under the uncontroverted facts and, hence, Farmland was the statutory employer of plaintiff as a matter of law and entitled to summary judgment. Plaintiff does not seriously contend that maintenance of the boiler in question was not an integral part of Farmland’s business. Rather, plaintiff attempts to modify the Hanna test to require both test questions be answered affirmatively before a finding of statutory employment may be made. Plaintiff argues that the evidence showed that operators of plants such as the one herein usually employ independent contractor specialists such as plaintiffs employer to replace tube bundles in boilers and, hence, the second test of Hanna was not met. As noted by the district court, Cody would, at some time in the future, repair the leaking tube bundle.
We see no valid reason to modify the either/or aspect of the Hanna test. A primary purpose of K.S.A. 44-503(a) is to prevent employers from evading liability under the Act by the device of contracting with outsiders to do work which they have undertaken as a part of their trade or business. Zehring v. Wickham, 232 Kan. at 707.
A third of the plant’s 270 employees were maintenance personnel who had, shortly prior to the incident herein, completed major maintenance activities on the plant’s equipment which involved a shutdown of the plant. Plaintiff s employer was brought in when a leak in a boiler again shut the plant down and plant officials were desirous of getting the plant operational again as soon as possible. Whereas the plant’s maintenance personnel may never have replaced tube bundles on this particular type of boiler, they had engaged in replacement of tube bundles in some other boilers. However, at the time Cody was brought in no one knew the tube bundle would have to be replaced. Nevertheless, this aspect of the facts really concerns only the second test of Hanna. Where the first test is met, there is no need to be concerned with the alternative test.
The result reached by the district court herein is consistent with that reached in a number of our prior cases.
Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P.2d 239 (1951), is well summarized in its rather unusual syllabus as follows:
“The defendant, authorized, licensed, and operating as a public utility and engaged in the production, sale, and transmission of electric power, contracted for the erection of a new building in addition to buildings already on its premises and the installation of steam boilers, turbines, generators and other equipment necessary and essential to the production, sale, and transmission of electricity. The contractors entered into an agreement with a subcontractor to perform a part of the work. Just as a workman, employed by the subcontractor, had finished cutting a piece of iron for a pipe hanger in a room of the defendant’s Tecumseh plant and was ready to leave that room and install the hanger in connection with the construction of the new building and the installation of equipment therein at such plant he was seriously injured as a result of an explosion which occurred within the plant. The workman brought an action under the common law against the defendant public utility, founded on negligence to recover damages for the injuries he had sustained. Held, (1) the work in which the plaintiff was engaged at the time of the explosion was a part of the defendant’s trade or business within the meaning of the subcontracting section of the Workmen’s Compensation Act (G.S. 1935, 44-503, now G.S. 1949, 44-503) and (2) the trial court properly sustained a motion for judgment on the pleadings and rendered judgment against plaintiff on the ground that under the facts disclosed by all the pleadings plaintiff and defendant were subject to the Workmen’s Compensation Act and the plaintiffs sole and exclusive remedy was that provided by its terms.”
Fugit, Administratrix v. United Beechcraft Inc., 222 Kan. 312, involved the following facts. Product Development Group had a contract with United Beechcraft to develop an engineering design for modification of the T-34 aircraft. The decedent, a Product Development employee, suffered a fatal heart attack during a test flight. The trial court granted United Beechcraft’s motion for summary judgment on the ground that decedent was a statutory employee of United Beechcraft under the Workmen’s Compensation Act. This court affirmed, holding that the modification work was an integral part of United Beechcraft’s trade or business, stating:
“K.S.A. 44-503(a) does not require the work undertaken to be the primary work of the principal contractor. It is sufficient if such work is a part of the overall operations of the principal contractor.” 222 Kan. at 315.
In Zehring v. Wickham, 232 Kan. 704, defendant was a glazing contractor who was building an addition to its facilities. Much of the construction work was contracted out. Plaintiff, an employee of an electrical subcontractor, was injured on the job and brought a negligence action against Wickham. The district court held plaintiff was the statutory employee of Wickham and entered summary judgment in the latter’s favor. In affirming the district court, we stated:
“In the case at bar the trial court ruled as a matter of law Zehring was a statutory employee of Wickham. The Court of Appeals reversed. We agree with the trial court and find the evidence in support of that position substantial. Admittedly, Wickham did not normally construct buildings and was not a general building contractor. It had, however, carried on its own construction in the past, constructing a building in 1961 and an addition in 1977. As such the 1978 addition, built to house a piece of machinery integral to the business, can be seen as a part of Wickham Glass Company’s overall operation. Further, it must be remembered the provisions of the workers’ compensation act are to be liberally interpreted in such a way as to bring a worker under the act whether or not desirable for the specific individual’s circumstance.” (Emphasis supplied.) 232 Kan. at 709.
See Mays v. Ciba-Geigy Corp. 233 Kan. 38, 661 P.2d 348 (1983), and Woods v. Cessna Aircraft Co., 220 Kan. 479.
We conclude the uncontroverted facts clearly support the district court’s determination herein that the work in which Cody (the independent contractor) and plaintiff (Cody’s employee) were engaged at the time of the injury was necessarily inherent in and an integral part of the principal’s trade or business. Therefore, the district court did not err in concluding Farmland was the statutory employer of plaintiff and entitled to the entry of summary judgment in its favor in this negligence action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action wherein the City of Junction City appealed a district court order dismissing a complaint against Linda Riley.
This case was submitted to the Geary County District Court upon a written stipulation of facts.
On January 8, 1986, Junction City police officer Bruce MacMeeken was on duty on Grant Avenue within the city limits. The Junction City city limit crosses Grant Avenue at the beginning of the 1100 block of Grant Avenue. While traveling westbound in the 600 to 700 block of Grant Avenue, Officer MacMeeken obtained a radar reading of 47 mph in a 35 mph zone from a 1983 Camaro automobile traveling east towards the Fort Riley military reservation.
Officer MacMeeken turned on his red lights and siren and approached the Camaro, driven by Linda Riley. Instead of slowing down, Ms. Riley increased her speed to approximately 80 mph in the 1000 block of Grant. The pursuit continued until Ms. Riley finally slowed her car and pulled into Mullins Park, located on the Fort Riley military reservation.
After administering field sobriety tests, Officer MacMeeken placed Ms. Riley under arrest for DUI and speeding. She was taken to the police department in Junction City where a breath test revealed a .20 blood alcohol concentration.
Ms. Riley was originally charged with speeding and driving under the influence. The complaint was later amended to add a third count, fleeing and eluding an officer. Ms. Riley was found guilty of all three charges by the municipal court of Junction City. She then appealed to the Geary County District Court.
The district court ruled that municipal officers have no authority to arrest upon a federal military reservation. The court concluded the stop and arrest of Linda Riley were without lawful authority and any evidence obtained therefrom was suppressed as having been unlawfully obtained. The identity of Linda Riley was a part of that evidence. The court dismissed all three charges of the complaint against the defendant.
The City of Junction City appeals pursuant to K.S.A. 22-3602(b)(1) and K.S.A. 22-3603.
The sole issue on appeal is whether the district court erred in holding that a municipal officer has no authority to make a warrantless misdemeanor arrest on a federal military reservation.
The City contends the actions of its officer were authorized by K.S.A. 1985 Supp. 22-2401a. That statute provides in relevant part:
“(1) Law enforcement officers employed by consolidated county law enforcement agencies or departments and sheriffs and their deputies may exercise their powers as law enforcement officers:
“(a) Anywhere within their county; and
“(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.
“(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:
“(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city; and
“(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.” (Emphasis added.)
The City argues that since K.S.A. 1985 Supp. 22-2401a (2)(b) authorizes municipal officers to exercise their powers “in any other place” when in fresh pursuit of a person, the arrest in this case was proper.
The appellee contends that despite the broad language of K.S.A. 1985 Supp. 22-2401a, that statute is not applicable to arrests upon federal military reservations. Instead, appellee cites K.S.A. 27-105, the statute by which the State of Kansas ceded all jurisdiction over the Fort Riley military reservation to the United States. The appellee argues that since the legislature did not reserve the power to authorize a Kansas law enforcement officer to make a warrantless misdemeanor arrest on the reservation, no such authority existed since the common law of Kansas in force on the effective date of K.S.A. 27-105 is the applicable law and only felonies were subject to warrantless arrest in fresh pursuit under the common law.
K.S.A. 1985 Supp. 22-2401a was enacted in 1977. Since its enactment, we have had the opportunity to consider its provisions only once — in State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983). In Hennessee, the court relied on K.S.A. 22-2401a in holding that the Pratt County sheriff acted beyond his authority in arresting the defendant at her residence in Stafford County. The court noted that under K.S.A. 1985 Supp. 22-2401a there are only two instances in which a sheriff may exercise his powers outside his county: (1) When he is in “fresh pursuit” of a person; or (2) when a request for assistance has been made by law enforcement officers from the area for which such assistance is requested. Since neither of these instances was applicable, the Hennessee court held the officer was without jurisdiction to make the arrest.
Hennessee is inapplicable to this case, however, since Hennessee did not involve a situation where an officer was in “fresh pursuit,” as we have here.
Refore interpreting K.S.A. 1985 Supp. 22-2401a, we should first comment upon two cases cited by the City: State v. Shienle, 218 Kan. 637, 545 P.2d 1129 (1976), and State v. Tillman, 208 Kan. 954, 494 P.2d 1178 (1972). Roth cases were decided by this court prior to the enactment of K.S.A. 1985 Supp. 22-2401a.
In Tillman, the defendants fled the scene of a robbery in Wyandotte County, Kansas, and were immediately followed by a private citizen and later by police officers in Jackson County, Missouri. The defendants were arrested 90 minutes later by Kansas officers in Missouri. The issue before the court was whether or not the police officers who arrested the defendants were in fresh pursuit of the defendants at the time the arrests were made. This court held that the circumstances established in Tillman clearly showed a “fresh pursuit” within the meaning of the uniform law on fresh pursuit adopted in both Missouri and Kansas (see K.S.A. 22-2404).
The uniform law on fresh pursuit is not involved in this case, nor is it disputed that the officer was in fresh pursuit of the appellee at the time the arrest was made. Rather, it is simply argued the “fresh pursuit” provision is insufficient to give municipal officers jurisdiction to make warrantless arrests for misdemeanors on the Fort Riley military reservation. Thus, Tillman is inapplicable here.
A second case cited by the City in support of its argument is State v. Shienle, 218 Kan. 637. In Shienle, this court held valid an arrest in Missouri by a Kansas police officer of one who had stolen a car in Kansas and driven it to Missouri. Although the arrest was not made in fresh pursuit, the court upheld the arrest as one made by a private person. The court held:
“When an arrest without a warrant is made by a Kansas police officer outside the territorial limits of his jurisdiction the arrest may be a legal private citizen’s arrest when it is established that: (1) arrests by private citizens are recognized as legal in the state where the arrest is made; (2) a felony has been or was being committed in that state; (3) the arresting officer had probable cause to believe the person arrested is guilty thereof; and (4) the officer acted reasonably under the exigencies attending the arrest.” Syl. ¶ 4.
Shienle is also inapplicable here because it involves neither “fresh pursuit” nor arrest for a misdemeanor.
K.S.A. 1985 Supp. 22-240la(2)(b) permits municipal officers to exercise their powers as law enforcement officers: (1) within the city limits; (2) outside of the city where on property owned or under the control of such city; (3) in any other place when a request has been made by law enforcement officers from that place or when in fresh pursuit of a person. Since it is not disputed that Officer MacMeeken was in fresh pursuit of the defendant, the question then becomes whether “any other place” includes the Fort Riley military reservation.
We have held that in determining whether a statute is open to construction, or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the clear intent of the statute appearing from plain and unambiguous language. State v. Haug, 237 Kan. 390, Syl. ¶ 1, 699 P.2d 535 (1985).
The City argues K.S.A. 1985 Supp. 22-2401a(2)(b) speaks for itself and needs no further interpretation. The City suggests the phrase “any other place” means what it says and includes federal military reservations. Appellee contends that Officer MacMeeken had no statutory authority to arrest her on the Fort Riley military reservation because, as a Junction City police officer, he was acting outside the geographic limits of the city. We hold Kansas law authorizes city police to make warrantless arrests for misdemeanors when in fresh pursuit at “any other place,” which includes Fort Riley; however, that does not resolve the issue since the legality of an arrest is determined by the law of the place where the arrest is made. State v. Cooper, 223 Kan. 175, 176, 573 P.2d 1006 (1977); State v. Shienle, 218 Kan. at 640.
Thus, we are faced with the issue of what law applies to the Fort Riley military reservation. The Fort was under Kansas jurisdiction until 1872 when it was ceded to the U.S. Government. The ceding authority is K.S.A. 27-102, which provides:
“That exclusive jurisdiction over and within any lands so acquired by the United States shall be, and the same is hereby, ceded to the United States, for all purposes; saving, however, to the state of Kansas the right to serve therein any civil or criminal process issued under the authority of the state, in any action on account of rights acquired, obligations incurred or crimes committed in said state, but outside the boundaries of such land; and saving further to said state the right to tax the property and franchises of any railroad, bridge or other corporations within the boundaries of such lands; but the jurisdiction hereby ceded shall not continue after the United States shall cease to own said lands.” (Emphasis added.)
This presents the question of whether the savings clause in K.S.A. 27-102 authorizes a warrantless arrest by Kansas police officers on the Fort. The savings clause pertains exclusively to the service of process in civil and criminal proceedings. Black’s Law Dictionary 1084 (5th ed. 1979), states:
“Process is defined as any means used by court to acquire or exercise its jurisdiction over a person or over specific property. [Citation omitted.] Means whereby court compels appearance of defendant before it or a compliance with its demands. [Citation omitted.]
“. . . The word ‘process,’ however, as now commonly understood, refers to a summons, or, summons and complaint, and, less commonly, to a writ.”
Thus, we see “process” means an order of a court. A warrantless arrest is action taken without process. The enactment of K.S.A. 27-102 indicates an intention of the State of Kansas to exercise certain legal rights in connection with the administration of justice on the territory ceded to the federal government but it does not authorize a warrantless arrest by Kansas police on the Fort.
It is next urged that since there is no controlling federal statute or regulation with regard to criminal jurisdiction on the Fort Riley military reservation, the common law on the date Kansas ceded it to the federal government is applicable.
We partially agree. The issue is governed by Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), where the court stated:
“Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.” 304 U.S. at 78.
Thus, since there is no federal common law the common law of Kansas controls. The common law of 1872 did not recognize fresh pursuit warrantless arrests in misdemeanor cases. However, Kansas modified the common law by K.S.A. 1985 Supp. 22-240la. It gave the Junction City police officer authority to make a warrantless arrest of Linda Riley on the Fort Riley military reservation for any crime committed outside the reservation and within the officer’s territorial jurisdiction, when in fresh pursuit.
The judgment of the trial court is reversed and this case is remanded with directions to reinstate the complaint.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by Borg Warner Acceptance Corporation (Borg Warner) to recover damages from the Kansas Secretary of State for the negligence of his employees in failing to report the existence of a prior security interest in response to a request for a record search submitted by Borg Warner. The case was tried and submitted to the court on a stipulation of facts and testimony offered by the parties. The trial court entered judgment in favor of the plaintiff, and the defendant secretary of state appealed.
Inasmuch as this case involves alleged negligence on the part of employees of the secretary of state in the performance of statutory duties, it would be helpful at the outset to summarize the applicable statutory provisions. The Uniform Commercial Code governs the subject of secured transactions in K.S.A. 84-9- 101 et seq. Certain specific sections cover the subject of priority among secured creditors. K.S.A. 84-9-302 requires that a financing statement must be filed to perfect all security interests subject to certain exceptions not involved in this case. The requirements for a filing in order to perfect a security interest are set forth in K.S.A. 84-9-401 through K.S.A. 84-9-408. It is these sections which must be considered in determining the issues raised in the case now before us.
K.S.A. 84-9-401 established the place to file in order to perfect a security interest. Subsection (a) provided that the proper place to file a security interest when the collateral is equipment used in farming operations or farm products is the office of the register of deeds in the county where the land is located. Under subsection (b), when the collateral is timber or minerals, including oil and gas, or goods which are to become fixtures, the security interest must be filed in the office where a mortgage on the real estate would be filed. Subsection (c) provided that, in all other cases, the security interest must be filed in the office of the secretary of state.
K.S.A. 84-9-402 provided that a financing statement may be in a form prescribed by the secretary of state and shall give the names of the debtors and secured parties together with other listed information. The secretary of state is required to prescribe a form to comply with the statutory provisions.
K.S.A. 84-9-403(1) declared that the presentation for filing of a financing statement and tender of the filing fee to the filing officer constitutes a filing under this article. Subsection (4) requires the secretary of state, as a filing officer, to mark each statement with a filing number together with the date and hour of filing and to hold the financing statement for public inspection. In addition, the filing officer is required to index the statements “according to the names of the debtors” together with the addresses of the debtors, the date of filing, and the general description of collateral. This index is to be accessible to the public.
K.S.A. 84-9-407 covered the procedure by which information is to be obtained from a filing officer. Subsection (2) declares that upon written request of any person and tender of the proper fee, the filing officer shall issue such officer’s certificate showing whether there is on file on the date and hour stated therein any presently effective financing statement naming a particular debtor and giving the date and hour of filing of each statement and the names and addresses of each secured party. The fee to be charged for each search is set by statute.
Simply stated, it is the position of Borg Warner that it filed several written search requests with the secretary of state and paid the statutory fees, and that the employees of that office negligently failed to disclose information contained in the records of the office showing that a prior security interest involving another creditor had been filed in the office. As a result of the failure to disclose that information, Borg Warner maintains that it suffered financial loss through loss of its priority as a secured creditor.
The facts in this case are essentially undisputed and are contained in the stipulation of facts executed by the parties and in testimony offered by the parties. In 1977, the First National Bank of Hillsboro (Bank), a defendant-appellee, entered into a financing agreement with Paul Eugene Talley and Twila J. Talley, husband and wife (Talleys). The Talleys operated a business known as Empire Manufacturing Company engaged in the manufacture of lamps and the sale of furniture. The Talleys signed a note, security agreement, and a financing statement evidencing the transaction and listing their inventory as collateral for the loan. The financing statement was filed with the office of the secretary of state on December 1, 1977. The Bank listed the debtors on that financing statement under the names of Paul Eugene Talley and Twila J. Talley, and also under the misspelled trade name of Empira Manufacturing Co. instead of the proper name of Empire Manufacturing Co. Between December 1977 and July 1983, additional loans were made by the Bank to the Talleys.
In August of 1978, the plaintiff, Borg Warner, came on the scene. The Talleys entered into a loan or floor plan arrangement with a division of Borg Warner. On August 25, 1978, Borg Warner’s Wichita office submitted a UCC search request to the office of the secretary of state, asking whether there were any presently effective financing statements naming the listed debtors: Empire Home Furnishings, Gene Talley, and Twila J. Talley. The office of secretary of state responded with a certificate which did not disclose the Bank’s December 1, 1977, fi nancing statement of the Talleys and Empira Manufacturing Company, although that financing statement was on file and indexed in the office. Borg Warner assumed that it could loan money to the Talleys secured by a prior security interest. Borg Warner then loaned money to the Talleys. The money loaned at that time was later repaid and is not the subject matter of the controversy in this case.
Thereafter, Borg Warner continued to lend money to the Talleys. On March 7, 1980, an Illinois branch office of Borg Warner submitted three separate search requests to the secretary of state for Gene Talley, Twila Talley, and Empire Home Furnishings. The secretary of state returned the requests without listing the Bank’s 1977 financing statement. Thereafter, Borg Warner entered into an open-end revolving credit arrangement with the Talleys. In July 1980, the Borg Warner commercial finance division office in Kansas City, Missouri, entered into another credit arrangement with the Talleys. On August 13, 1980, the Kansas City office of Borg Warner submitted a UCC search request to the Kansas Secretary of State’s Office listing as debtors Gene Talley, Empire Manufacturing Co., and Empire Home Furnishings. Again the secretary’s office failed to disclose the Bank’s 1977 financing statement.
As additional security for that loan, Borg Warner took a $150,000 second mortgage on the Talleys’ business real estate. This loan was not repaid and is the basis for Borg Warner’s claim in this case.
Thereafter, Borg Warner continued to lend money to the Talleys. On June 23, 1983, Borg Warner submitted another search request listing as debtors Gene Talley, Twila J. Talley, and Empire Home Furnishings. Again the search request was returned to Borg Warner without listing the Bank’s 1977 financing statement. In February of 1984, the Talleys filed a chapter 7 bankruptcy proceeding in Wichita. At that time the Talleys owed Borg Warner an outstanding balance of $327,000. On March 6, 1984, Borg Warner’s bankruptcy attorney filed a UCC search request with the secretary of state listing as debtors Paul E. Talley, Twila J. Talley, Empire Manufacturing Company, Empire Lamp and Fixture, Empire Lamp and Shade, and Empire Home Furnishings. In response to that search request, the sec retary of state’s certificate showed the December 1977 financing statement of the First National Bank of Hillsboro.
Thereafter, the Talleys’ business inventory was liquidated, which resulted in proceeds of $70,622. By agreement between the Bank and Borg Warner, that amount was held in escrow pending the final determination of this controversy. On August 17, 1984, Borg Warner filed this action against the secretary of state and the First National Bank of Hillsboro seeking judgment against the secretary of state for the negligent UCC searches made by his filing officer and employees. In the alternative, Borg Warner requested that the court enter judgment that the First National Bank of Hillsboro had filed an erroneous and improper financing statement which precluded it from claiming a prior security interest in the Talleys’ inventory.
The parties stipulated to most of the facts and the case was tried and submitted to the court. The action was brought under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., claiming negligence on the part of the filing officer and clerks of the secretary of state in failing to carry out his statutory duties under the Uniform Commercial Code. The trial court took the case under advisement and, in due course, filed its memorandum decision setting forth its findings of fact and conclusions of law. It found that the employees of the secretary of state were negligent in responding to Borg Warner’s UCC search requests. The basis of this finding was that the debtor, Twila Talley, was listed on the August 1978, March 1980, and June 1983 requests which were returned without listing the Bank’s 1977 financing statement. The trial court further found that the Bank’s 1977 financing statement was not seriously misleading by the misspelling of the name Empire Manufacturing Company as Empira Manufacturing Company, because no search request looked solely for the trade name. The district court awarded Borg Warner damages in the amount of $70,622 from the secretary of state. The secretary of state appealed.
The first point raised on appeal is that the trial court’s findings of fact are not supported by the evidence. It is well established that where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. The trial court’s findings will not be set aside unless clearly erroneous. Woods v. Midwest Conveyor Co., 236 Kan. 734, 735-36, 697 P.2d 52 (1985).
When a verdict or judgment is attacked for insufficiency of the evidence, the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any substantial competent evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below. Toumberlin v. Haas, 236 Kan. 138, Syl. ¶ 5, 689 P.2d 808 (1984).
The secretary of state contends that its searches were consistent with the law and with their established course of dealing with Borg Warner. The statutory obligations of the office of secretary of state in conducting a UCC search are summarized at the beginning of this opinion. It is undisputed in this case that the Bank’s 1977 financing statement listed as debtors the names of Paul Eugene Talley, Twila J. Talley, and Empira Manufacturing Company. In each of the searches requested by Borg Warner beginning in August of 1978 to the final search in March of 1984, the name of Twila Talley or Twila J. Talley appeared, with the exception of the August 13, 1980, search. In the stipulation of facts, Carol Beard, the filing officer in charge of UCC filings with the secretary of state, agreed that in looking for Twila Talley, she would have discovered Twila J. Talley, and would have discovered Empira Manufacturing Company, and would have found the Bank’s 1977 financing statement. Likewise, Jon Josserand, assistant secretary of state, agreed that the 1977 financing statement listing Paul Eugene Talley and Twila J. Talley d/b/a Empira Manufacturing Co. would have been cross-indexed under the individual debtors, Paul Eugene Talley or Twila J. Talley. A search for the named Twila Talley or Twila J. Talley should have brought forth a report of the Bank’s 1977 financing statement. We have no hesitancy in concluding that there was evidence to show the employees of the secretary of state were negligent in responding to Borg Warner’s UCC search requests by failing to provide information as to the Bank’s 1977 financing statement. We have, likewise, concluded from the evidence that Borg Warner had not limited the responses to its own search requests in order to save time and reporting fees.
The next point raised on the appeal is that the evidence was insufficient to support the trial court’s finding that the negligence of the secretary of state was the proximate cause of Borg Warner’s damages. One of the management employees of Borg Warner testified that all search requests for various offices of the company and the responses received thereto from the secretary of state’s office were relevant, because each contained information as to who was doing business with the debtor at a particular time. He stated, without equivocation, that Borg Warner relied on all of those requests in advancing money to the Talleys. If we accept as true the evidence and all inferences to be drawn therefrom which tend to support the trial court’s findings, there was substantial competent evidence to conclude that Borg Warner relied on all of the searches to some extent in deciding to lend money to the Talleys.
As his third point, the secretary of state complains that Borg Warner failed to prove the extent of damages which it suffered, because it only offered proof of the value of the inventory to which it lost its security. A question is raised as to whether Borg Warner’s mortgage on the business real estate of the Talleys should be considered in determining its losses. Prior to trial, the parties agreed that the question of the real estate mortgage was to be treated separately from, and that it was not involved in, this lawsuit. At the time the case was heard, the principal and accrued interest owed by the Talleys to Borg Warner exceeded $300,000. It was undisputed that the only property of the Talleys available at the time of the bankruptcy to pay the debt to Borg Warner was the inventory and Borg Warner’s mortgage on the Talleys’ real property. Together, their value did not equal the amount due and owing from the Talleys to Borg Warner. We hold that the trial court properly awarded Borg Warner damages against the secretary of state in the amount of $70,622.
The final point raised on the appeal is that the trial court erred in concluding that the Kansas statute of limitations did not bar a recovery by Borg Warner in this case. The secretary of state contends that Borg Warner’s claim was barred by the two-year statute of limitations under K.S.A. 60-513, because a Borg Warner employee, Doug Stevens, knew or should have known in 1980 that the Talleys had prior business dealings with the Bank. We have no hesitancy in holding that, under the law, Borg Warner had a right to rely on the requested search requests and it was only in March of 1984 that the secretary of state first reported to Borg Warner that the Bank had the 1977 financing statement on file in its office. In this case, Borg Warner had a right to rely on the answers submitted by the secretary of state in response to its search requests. The statute of limitations did not begin to run until March of 1984, when the existence of the Bank’s 1977 financing statement was discovered. This action was filed on August 17, 1984, well within the two-year statute of limitations provided for by K.S.A. 60-513. This same conclusion was reached by a New York court in a case involving very similar facts. See Hudleasco, Inc. v. State, 90 Misc. 2d 1057, 396 N.Y.S. 2d 1002 (1977). That decision was affirmed in Hudleasco, Inc. v. State, 63 App. Div. 2d 1042, 405 N.Y.S. 2d 784 (1978). In this regard, see also J.I. Case Credit Corp. v. Foos, 11 Kan. App. 2d 185, 189, 717 P.2d 1064 (1986), which held that K.S.A. 84-9-312 is a “pure race” type statute and the secured creditor who wins the “race” to the appropriate filing office has priority without regard to the prevailing creditor’s state of mind regarding an imperfected security interest in the same equipment. We hold that the trial court did not err in concluding that the statute of limitations did not bar Borg Warner’s claim.
For the reasons set forth above, the judgment of the district court is affirmed.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
G & S Investment Co., Inc., plaintiff, and Stuart and Mona Close, defendants, owned as tenants in common 480 acres of farmland in Thomas County. A dispute between the owners required the land to be partitioned. Each party contested the other’s claims for allowance of expenses incurred in the farming operation. Without a hearing and based only on the contradictoiy facts stated in the trial briefs, the judge entered judgment for the plaintiff. Defendants filed a motion for a new trial, claiming the judge had failed to allow them the right to present evidence. At the hearing on the motion for a new trial, each side presented evidence. The judge overruled the defendants’ motion for a new trial. The defendants appealed. The Court of Appeals affirmed the district court. The defendants’ petition for review was accepted by this court.
G & S Investment Co., Inc., (G & S) is owned by Glen Close, Stuart Close’s brother. In 1983 the relationship between the parties had deteriorated to a point where it was no longer possible to continue the joint farming operation. Glen filed a petition to have the property partitioned. K.S.A. 60-1003.
On March 1, 1984, the district court ordered the property partitioned and appointed commissioners to carry out the partition. The commissioners determined that the property could not be partitioned “without manifest injury to the whole.” The court ordered that the property be sold. Both parties elected to take the property at its appraised value. The court then ordered a sheriff s sale. G & S was the successful bidder on the property.
After the sale, the parties were unable to agree on the disbursement of the sale proceeds, as each claimed that certain expenses incurred in farming operations should be assessed against the other. On October 1, 1984, the parties appeared for the hearing to determine the disbursement of the sale proceeds. Defendants’ attorney had prepared a written brief which was presented to the court. The court continued the hearing to allow G & S’s attorney additional time to file a written response. The trial court suggested that the parties stipulate as to the controlling facts and indicated that, if necessary, an evidentiary hearing could be scheduled after G & S filed its brief. No evidence was produced at this hearing and no future evidentiary hearing was scheduled.
The plaintiff s reply brief was received by the defendants’ attorney on Friday, November 16, 1984. The following Monday morning, the judge rendered his written decision based on the parties’ conflicting trial briefs. The Closes filed a motion for a new trial or in the alternative a motion to alter or amend the judgment. Subsequently the judge conducted a hearing on the motion. The parties presented evidence concerning those matters previously decided. The trial court denied the motion for a new trial, but amended the judgment as to one expense item.
The defendants appealed to the Court of Appeals. The Court of Appeals, in an unpublished opinion, affirmed the district court’s decision. (Case No. 58,007, filed April 10, 1986.) The Court of Appeals found that the trial court erred in rendering its decision without evidence, but concluded that when the defendants were allowed to present their evidence at the hearing on the motion for a new trial the error had been cured. The case is here on petition for review.
The defendants claim the Court of Appeals erred in its ruling that the hearing on their motion for a new trial was in fact a new hearing. The Closes argue that at the hearing on their motion, they were required to persuade the judge that his prior findings were incorrect. Such a requirement placed an improper burden on them.
First, we must determine if, where a court fails to conduct an evidentiary hearing as required by statute, the granting of a full evidentiary hearing on the motion for a new trial will cure the error.
K.S.A. 60-259(a) provides that on a motion for a new trial in a case tried by a judge, the court may open the judgment, take additional testimony, and direct a new judgment. The purpose of this section of the statute is to allow the trial judge an opportunity to correct prior errors. Where both parties are given notice and an opportunity to present their evidence in a meaningful manner at the hearing on the motion for a new trial, their due process rights have been restored and the judge’s failure to conduct the statutory hearing has been corrected.
Prior to the presentation of evidence at the hearing on the Closes’ motion for ,a new trial the judge stated:
“Now, I have made my order and you have asked for a new trial, or in the alternative to alter or amend judgment. So Mr. Burkhead, I believe it would be up to you at this time to present whatever evidence you intend to do in support of that motion for a new trial.”
While the Closes were presenting their evidence, the judge said:
“I’ve already ruled that the agreement that was entered into on January the 1st, 1982, that had to do with the way the farm was supposed to be farmed and the division of the crops and so forth, I’ve already ruled on that. I’m not going to go change that. And I’m not going to listen to any evidence that’s not — that’s outside of this agreement. So now if you want to have some — put some testimony on concerning the division and the damages and so forth, then that’s fine.”
After all of the evidence had been presented and the attorneys had made their argument, the judge made his finding, stating:
“Well, this matter is before the court today on a motion for a new trial, or in the alternative, to alter or amend the judgment. Nothing I’ve heard today has changed my mind in any way concerning the journal entry and the order that I entered that was filed here [on] November 19th, of 1984.”
The Closes do not dispute the judge’s statutory power to open the judgment, take additional evidence, and render a new judgment at the hearing on the motion for a new trial. They do claim that they were deprived of a fair hearing on their motion when they were required to convince the judge that his original determination in favor of G & S was wrong. They argue if the procedure is to substitute for the original hearing they never received to protect their due process rights at the hearing on the motion for a new trial, the judge must require that both parties prove their claims by a preponderance of the evidence.
Errors that do not prejudice the substantial rights of a party afford no basis for a reversal of a judgment and will be disregarded. Where each party to a lawsuit had a fair opportunity to present all his evidence, the question as to which litigant had the burden of proof is immaterial unless the trial court’s ruling thereon shifts the risk of nonpersuasion from the litigant who must bear it in order to prevail in the action. Quinton v. Kendall, 122 Kan. 814, 253 Pac. 800 (1927).
Under the facts of this case on appellate review, using the most liberal construction of the rules to. determine if a party has received a fair hearing, we are unable to say that the Closes received a fair hearing. Here the judge not only required the Closes to persuade him that his original ruling was wrong, but also limited the issues he would reconsider during the hearing. We must therefore reverse and remand the case for a new hearing. In fairness to the judge and the parties, a different judge shall be assigned to hear the matter on remand.
The district court and the Court of Appeals are reversed and the case is remanded to the district court for a new hearing in accordance with our instructions. | [
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The opinion of the court was delivered by
Luckert, J.:
More than 50 years ago, in Edwards v. Edwards, 182 Kan. 737, Syl. ¶ 2, 324 P.2d 150 (1958), this court stated that a child support order entered during the pendency of a divorce action is interlocutory and may be modified at any time and in any manner, even to the extent of discharging accrued and unpaid installments. This appeal raises the issue of whether that holding remains valid in light of statutory changes that have occurred over that 50-year period. After reviewing the statutoiy changes, we hold that the Kansas Legislature has limited a district court’s authority to discharge past-due child support in a final decree of divorce; specifically, a court’s authority is limited by the provision in K.S.A. 60-1610(a)(l) that limits the retroactivity of a modification to a date at least 1 month after the date that a motion to modify was filed.
Based on this conclusion, we reverse the district court’s order entered at the final divorce hearing that discharged all unpaid child support that had accrued under the court’s interlocutory child support orders. We also reverse the Court of Appeals’ decision to affirm tire order discharging the past-due amounts and remand to the district court for further proceedings.
Facts and Procedural Background
In February 2006, Kristin L. Brown petitioned for a divorce from her husband, John Jared Brown. The couple had two young daughters at that time. Soon after the filing, the district court entered temporary orders, one of which required Jared to pay monthly child support. Jared fell behind in these payments, and eventually his wages were garnished.
Despite the garnishments and several modifications to the child support order brought about by motions, by the time of the final divorce hearing in November 2009, Jared owed $15,524 in unpaid child support. At the hearing, Kristin requested a judgment against Jared for the child support arrearage and for other monies she claimed Jared owed her, including $15,000 Kristin had provided to erase spousal maintenance and child support obligations that Jared owed to his previous spouse. Jared countered with a number of arguments, including the contention that Kristin was trying to get him to pay her separate bills. Jared also claimed a right to the proceeds from the sale of the parties’ home. After hearing the parties’ arguments, the district judge made the following rulings on the record:
“I’ve heard enough. ... I think it’s in both parties!’] best interest to make a clean break on this thing, and so here’s what we are going to do. I’m calling it good. [Kristin] can keep all of the money from tire proceeds from the sale of the house. ... And so I’m calling it clean as of December 1 of2009. There are no arrearages. All of tlie $19,000 [leftover from the home-equity proceeds] can go to satisfy whatever arrearages there exist. The $15,000 on the [child support for Jared’s first wife] I construe as a gift, and I’m calling it good as of December 1, 2009. . . .
“. . . There were lots of monies paid from that equity for debts that I’m not sure were [Jared’s] debts, and we haven’t—the parties didn’t present evidence on all of this stuff. And I just really do not think it’s the way to handle this, to go duke it out over [$5,000] to $10,000, I just don’t think it’s worth it. . . . It’s just not worth the fight, so that’s why I’m calling it good. I think it’s better for these parties to move forward without having any outstanding financial issues going at each other over. Let’s just move on with this thing. She can have the $20,000, we are calling it good. I’m now going to expect [Jared] is going to pay his child support in full eveiy month on a timely basis; and if he doesn’t, he’s going to have to answer to me. But that’s the way we are going to do that and that’s the order of the Court”
On direct appeal, Kristin raised two issues before the Court of Appeals; (1) The district court abused its discretion in setting the conditions and terms of the parenting-time order and (2) the district court erred in disposing of the child support arrearage. See In re Marriage of Brown, No. 103,758, 2010 WL 4157111 (Kan. App. 2010) (unpublished opinion).
The Court of Appeals affirmed the district court’s orders. Regarding the order discharging the unpaid child support, the Court of Appeals rejected Kristin’s reliance on In re Marriage of Schoby, 269 Kan. 114, 120-21, 4 P.3d 604 (2000), a case involving a modification of child support after a divorce was final. The Court of Appeals concluded that the holding did not apply to child support obligations under an interlocutory or pendente lite—meaning during the pendency of litigation—child support order. The Court of Appeals reasoned;
“Installments of temporary support pendente lite do not become a final judgment on their due date. They are subject to review and modification by the district court and do not automatically become a final judgment. See Edwards v. Edwards, 182 Kan. 737, 324 P.2d 150 (1958). The district court’s temporary order for support, for which an arrearage of $15,524 had accumulated before the final hearing, did not mature into a judgment.” Marriage of Brown, 2010 WL 4157111, at "6.
Kristin filed a petition seeking this court’s review of the Court of Appeals’ decision. Review was granted only as to the child support arrearage issue. This court has jurisdiction under K.S.A. 20-3018(b) (petition for review).
Analysis
Kristin argues the Court of Appeals erred in relying on Edwards because statutory changes have effectively overruled the portion of the decision relating to a district court’s authority to modify or vacate an interlocutory child support order. Because of the effect of these changes, she argues the statute applied in Marriage of Schoby—K.S.A. 60-1610(a)(l)—also applies to interlocutory child support orders. As a result, according to Kristin, rather than distinguish Marriage of Schoby, the Court of Appeals should have applied the Marriage of Schoby court’s holding that under K.S.A. 60-1610(a)(l) child support modifications operate prospectively only. Marriage of Schoby, 269 Kan. 114, Syl. ¶ 1.
Kristin’s arguments require us to interpret various statutes relating to child support. Questions of statutory interpretation are issues of law over which this court exercises unlimited review. As in any situation in which a court is called upon to interpret or construe statutory language, the touchstone is legislative intent. To divine legislative intent, a court begins by examining and interpreting the language the legislature used. Only if that language is ambiguous does a court rely on any revealing legislative history, background considerations that speak to legislative purpose, or canons of statutory construction. When a statute is plain and unambiguous, a court merely interprets the language as it appears; a court is not free to speculate and cannot read into the statute language not readily found there. See State v. Brown, 295 Kan. 181, Syl. ¶ 5, 284 P.3d 977 (2012); Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012).
These rules of statutory interpretation apply to our analysis and comparison of the statutes that were in effect at the time of the decision in Edwards, those statutes that applied in Marriage of Schoby, and those statutes that controlled the district court’s orders in this case. To facilitate this analysis and comparison, we begin with a discussion of Edwards and then examine the changes to the statutes that have occurred after that decision.
In Edwards, the wife filed a divorce action against her husband and obtained an ex parte order for temporary child support and alimony. The husband failed to comply with the ex parte order. Later, tire district court vacated the child support obligation that had become due under the ex parte order. The wife appealed, and the husband sought to have the appeal dismissed because the district court’s order was not final and, therefore, not appealable. In arguing that the order could be appealed, the wife urged the court to find that her husband’s past-due payments for child support and alimony became final judgments even though the divorce was not yet final. She further argued that the husband’s property should be “taken on execution” and sold to satisfy the arrearages. Edwards, 182 Kan. at 738.
At the time of Edwards, an interlocutory child support order was authorized by section 60-1507 of General Statutes of Kansas of 1949. Further, the statute allowed the court to “modify or vacate such order from time to time as may be proper.” (Emphasis added.) G.S. 1949, 60-1507. Applying this statute, the Edwards court concluded that “[a]n allowance of support. . . pendente lite . . . does not become a final judgment on which execution can issue, but is merely a temporary or ad interim provision for their support until the final determination of the action.” Edwards, 182 Kan. 737, Syl. ¶ 1. The Edwards court distinguished between support decreed upon dissolution of the marriage and a temporary support order, which is
“interlocutory in character, and, like other interlocutory orders made during litigation, remains solely in the sound judicial discretion of the court. . . and may be modified as varying circumstances justify during the pendency of the action in any form in the district court, even to the extent of discharging accrued andunpaid installments.” (Emphasis added.) Edwards, 182 Kan. 737, Syl. ¶ 2.
The Edwards court noted that G.S. 1949, 60-1510 (1957 Supp.) defined the district court’s authority when entering and enforcing a decree of divorce. Under that provision, “[c]hild support ordered paid by the final decree may be modified whenever circumstances render such change proper, but the modifying order must operate prospectively, and, whether modified or not, past-due installments become final judgments as of the dates due and may be collected in the same manner as other judgments. [Citations omitted.]” Edwards, 182 Kan. at 743. In contrast, “the rule that past-due installments for child support ordered paid by the final decree become final judgments as of the dates due and may be collected in the same manner as other judgments, is clearly inapplicable to past-due installments of support allowed pendente lite.” Edwards, 182 Kan. at 744. The court cited four grounds of support for its conclusion.
First, the Edwards court noted the plain language of G.S. 1949, 60-1507. Clearly, under this provision, a district court was authorized to “modify or vacate” an interlocutory order of child support and could do so from “time to time as may be proper.”
Second, the Edwards court pointed to due process concerns. The court noted that, in Kansas at that time, child support “may be ordered paid in a final decree only after service of summons upon the defendant affording him an opportunity to appear and defend and after full consideration by the district court of all the evidence presented at the hearing upon the merits.” Edwards, 182 Kan. at 744. Conversely, temporary support “may be entered ex parte, is merely interlocutory, and rests largely in the discretion of the court allowing it.” Edwards, 182 Kan. at 744.
Third, the Edwards court explained: “[T]he past due installments . . . did not become final judgments . . . which could be collected by execution. . . . [T]hose installments, when due, were subject to enforcement by attachment ... or by contempt proceedings.” Edwards, 182 Kan. at 745. Thus, the purported execution in the hands of the sheriff had no effect because, as the Edwards court noted, G.S. 1949, 60-1507 contained no language permitting the enforcement of orders for support pendente lite by execution. Edwards, 182 Kan. at 746.
Fourth, the Edwards court reasoned that an allowance of temporary support does not become a “final judgment” as that term is defined in the Kansas Code of Civil Procedure. Edwards, 182 Kan. at 744; see Earls v. Earls, 26 Kan. *178, *178 (1881) (order for payment of alimony pendente lite is not appealable pending final determination of the suit). The Edwards court ultimately concluded that the district court’s order revoking the ex parte order for temporary support was not a final order and was not subject to appellate review. Likewise, the district court’s order denying the wife’s motion requesting the husband’s property to be certified for sale by execution to satisfy the temporary support arrearages was not a final order reviewable on appeal. Edwards, 182 Kan. at 745-46.
Over the years since Edwards, as Kristin Suggests, there have been substantial statutory amendments that impact the rationale of the Edwards decision. These changes included (1) altering the power to vacate an interlocutoiy child support order; (2) enacting provisions related only to ex parte orders; (3) limiting the retro-activity of modifications; (4) allowing garnishment and other enforcement procedures if temporary child support is not paid; and (5) requiring service and an opportunity to be heard before these enforcement mechanisms can be used. These changes are revealed by tracing the legislative history of G.S. 1949, 60-1507 and related statutes.
Some of these changes occurred in 1982 when the legislature modified what had been G.S. 1949, 60-1507. Between 1949 and 1982, these provisions had been recodified and could be found at K.S.A. 1981 Supp. 60-1607. In the 1982 amendments, the legislature took out the language that had specifically permitted the district court to “vacate or modify any interlocutory order from time to time” as deemed proper by the court. (Emphasis added.) L. 1982, ch. 152, sec. 7(b). In place of this language, the legislature adopted a provision relating to ex parte orders. This new provision, in addition to detailing the procedure and scope of an ex parte order, empowered the district court to “make any order authorized by this section, including vacation or modification.” L. 1982, ch. 152, sec. 7(b); see K.S.A. 60-1607(b). Other than this provision relating to modification or vacation of ex parte orders, the new version of K.S.A. 60-1607 made no mention of modifying or vacating interlocutory child support orders.
Instead, the legislature moved the provision regarding modifying orders, other tiran ex parte orders, to tire statute relating to divorce decrees, K.S.A. 1982 Supp. 60-1610. The legislature made this intent clear by adding the word “prior” to a sentence that authorized the district court to “modify or change any order” relating to the support and education of minor children. As amended, the sentence read: “The court may modify or change any prior order.” L. 1982, ch. 152, sec. 9(a)(1); K.S.A. 60-1610(a)(l). Allowing the divorce decree to contain an order modifying “any prior order” clearly encompassed any interlocutory child support order. Following this change, one might argue that the legislature’s decision to move the provision had little impact on a court’s discretion beyond that recognized in the Edwards opinion; the counter to this argument would be that the word “vacate” was no longer used.
The potential importance of this debate to the issue before us was negated in 1991 when the legislature adopted language that restricted the retroactivity of a modification made in a divorce decree, by stating: “The court may malee a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court.” L. 1991, ch. 171, sec. 2(a)(1); see K.S.A. 60-1610(a)(l). By limiting the period of retro-activity, the legislature effectively limited the ability to vacate past-due child support that would have accrued before a motion to modify was filed.
These 1982 and 1991 amendments were still in place at the time of the divorce hearing in this case. At that time, the statute relating to a divorce decree read, in part:
“A decree in an action under tins article may include orders on the following matters:
“(a) Minor children. (1) Child support and education. The court shall make provisions for the support and education of the minor children. The court may modify or change any prior order .... The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court. Any increase in support ordered effective prior to the date the court’s judgment is filed shall not become a lien on real property pursuant to K.S.A. 60-2202 and amendments thereto.” (Emphasis added.) K.S.A. 60-1610.
In addition to these post -Edwards statutory changes that altered a district court’s power to vacate past-due child support obligations, other statutory amendments have provided ways to enforce interlocutory child support orders that did not exist at the time of the Edwards decision. In 1979, the legislature amended K.S.A. 60-1607 to include language permitting enforcement of interlocutory support orders by garnishment. L. 1979, ch. 183, sec. 3; see K.S.A. 60-1607(c)(l). For an order of garnishment to be issued, certain requirements had to be met, including service and the opportunity for a hearing if requested within the time period provided by the statute. Further, under statutes relating to the enforcement of duties of support and restitution, codified after Edwards, a court trus tee is authorized to collect support upon a district court’s order or upon a written request of an obligee. L. 1972, ch. 123, sec. 4; see K.S.A. 2011 Supp. 20-378. Under that enforcement act, the term “support” is defined as “child support, whether interlocutory or final, and maintenance.” (Emphasis added.) K.S.A. 2011 Supp. 20-376(3). In other words, there is no statutory distinction between a court trustee’s enforcement of an interlocutory child support order and a child support order contained in a final divorce decree.
This similar treatment of a child support order contained in a final decree and an interlocutory child support order is also evident in the Income Withholding Act, K.S.A. 2011 Supp. 23-3101 through 23-3118 and 39-7,135, which was first enacted in 1985. L. 1985, ch. 115, sec. 1. Under the Act, an ex parte interlocutory support order may be enforced by income withholding under K.S.A. 2011 Supp. 23-3103(k)(l) and (2). “Any other interlocutory order for support may be enforced by income withholding pursuant to this act in the same manner as a final order for support.” (Emphasis added.) K.S.A. 2011 Supp. 23-3103(k)(3).
Collectively, these amendments significantly alter the statutory framework for interlocutory child support orders as compared to the statutes in place at the time of the Edwards opinion. There is no longer a general provision allowing a court to vacate any interlocutory child support order at any time, a distinction is drawn between ex parte orders and other orders, an order in a decree of divorce is limited in its retroactivity, and enforcement mechanisms are in place to facilitate the collection of amounts due under interlocutory orders where due process protections have been satisfied. These amendments alter and generally obliterate the first two grounds for the holding in Edwards and weaken the third ground, at least when that holding is applied to interlocutory orders other than ex parte orders, which was the type of order at issue in Edwards. See K.S.A. 60-1607(b) (specifically allowing court to modify or vacate ex parte orders).
As to tire fourth ground, tírese post-Edwards statutory amendments do not necessarily transform interlocutory child support orders into “final orders” that can be appealed, See K.S.A. 2011 Supp. 60-254(a) (“A judgment is the final determination of the parties’ rights in an action.”); K.S.A. 2011 Supp. 60-254(b) (“[A]ny order . . ., however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer tiran all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and the parties’ rights and liabilities.”); K.S.A. 2011 Supp. 60-2102(a), (b) (authorizing, in part, an appeal of a “final decision,” a provisional remedy, or an injunction); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 610, 244 P.3d 642 (2010) (“The term ‘final decision’ has been construed to mean “one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” ’ ”). Hence, these various statutory changes may not affect the ultimate holding in Edwards regarding whether an interlocutory child support order is appeal-able. Nevertheless, the question of whether the order can he appealed is not critical to the determination of the issue in this case of whether the district court has tire authority to vacate an interlocutory order for child support.
Further, the statutes that led the Edwards court to its holding that the interlocutory order was not appealable do not control the issue in this case. Even though K.S.A. 60-254(b) provides authority for a district court to modify interlocutory orders in general, K.S.A. 60-1610(a)(l) is specific to the authority to modify child support orders entered prior to a divorce decree. This specific provision controls over a general statute. See State v. Chavez, 292 Kan. 464, 466, 254 P.3d 539 (2011) (when statutes overlap, specific statute controls over more general statute); In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007) (same), cert, denied 555 U.S. 937 (2008).
Moreover, the specific provision of K.S.A. 60-1610(a)(l) regarding modification and enforcement of child support restricts the district court’s authority to vacate past-due child support obligations. Therefore, this provision and the provisions regarding enforcement of interlocutory child support orders, adopted after the decision in Edwards, undercut the Court of Appeals’ reliance on Edwards. Although the amendments do not overrule Edwards, which dealt with an ex parte order and the issue of whether the order was appealable, they limit the reach of Edwards’ holding to those situations. Where, as here, the district court attempts to vacate an order that was entered after notice has been given and an opportunity for a hearing has been provided, the statute that controls the district court’s authority is K.S.A. 60-1610(a)(l), which is the statute that was discussed in Marriage of Schoby, 269 Kan. 114.
Even though we apply the statute discussed and applied in Marriage of Schoby and not the statute discussed and applied in Edwards, the Court of Appeals was correct that much of the discussion in Marriage of Schoby does not apply to the facts of this case; indeed, there is no factual similarity between Marriage of Schoby and this case. The issue on appeal in Marriage of Schoby was whether the father’s child support obligation continued after the child married at age 16 or whether the child’s marriage was a “ 'terminating event’ ” which automatically emancipated the child and rendered null the portion of court’s final divorce decree that had ordered child support. Marriage of Schoby, 269 Kan. at 120-21. Neither the reasons for the modification or the timing of the modification are comparable to the situation in this case.
Despite these factual differences, the Marriage of Schoby court’s interpretation of the retroactivity provision in K.S.A. 60-1610 was not limited to postdivorce modifications and is, therefore, applicable to our analysis. Applying K.S.A. 60-1610(a)(l), the Marriage of Schoby court, after quoting the language limiting the retroactive effect of a modification order to “ ⅛ a date at least one month after the date that the motion to modify was filed with the court,’ ” held “ ‘the modification [made without a motion] operates prospectively only. [Citations omitted.]’ ” Marriage of Schoby, 269 Kan. at 117. The same conclusion was reached in In re Marriage of Lauridsen, No. 95,643, 2006 WL 2716064 (Kan. App. 2006) (unpublished opinion) (modification of support cannot be retroactive to 5 months before filing of motion to modify), which Kristin cites as significant because it represents another Court of Appeals decision that conflicts with the decision in this case.
In light of the specific language in K.S.A. 60-1610 limiting the period of retroactivity of a modification order, we hold that a district court’s authority to discharge or vacate child support that was due under an interlocutory order, other than an ex parte order under K.S.A. 60-1607(b), is limited. If a motion for modification has not been filed, the modification operates prospectively only. As Kristin notes, although several motions to modify were filed while die divorce was pending, the district court did not make findings that were tied to a motion to modify. Consequently, contrary to the Court of Appeals’ holding in this case, the district court could enter only a prospective order regarding child support and was not authorized to vacate the temporaiy child support order that had resulted in an arrearage of $15,524.
Yet, as Jared argues, it is not entirely clear that the district court modified or vacated the order. The district court’s order is ambiguous and could be interpreted to mean that the child support ar-rearage Jared owed to Kristin was offset by amounts that were due to Jared because of other financial considerations in the divorce. The Court of Appeals, however, did not discuss this possible ambiguity before concluding the district court had modified the interlocutory order. The Court of Appeals’ interpretation of the district court’s ambiguous comments may be correct, but it is equally possible that the district court intended to offset debts. We simply are unable to state with any certainty which one of the two alternatives was intended by the district court. As a result, we determine a remand is necessary so the district judge can clarify his intent and malee further findings that are consistent with this decision regarding the application of K.S.A. 60-1610(a)(l).
The Court of Appeals’ decision affirming the district court on that single issue subject to our review is reversed. The district court’s order on that issue is reversed, and the case is remanded to the district court with directions.
Moritz, J., not participating.
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The opinion of the court was delivered by
Rosen, J.:
This appeal asks this court to construe the plain language of a portion of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Because KORA exempted the appellant from registration, we vacate that portion of his sentence.
On March 14, 2008, tire State filed a complaint/information charging Terry G. Mishmash with six counts of violating controlled substance laws. He entered a plea of no contest to one count of manufacturing methamphetamine and one count of possession of methamphetamine.
At sentencing, the State recommended the sentence agreed upon as part of the guilty plea: 84 months’ imprisonment for manufacturing a controlled substance and a concurrent sentence of 11 months’ imprisonment for possession of methamphetamine. As part of the sentencing hearing, the State called a witness solely to show that Mishmash manufactured methamphetamine for the purpose of selling it as well as for his own consumption. A friend of Mishmash testified that she obtained methamphetamine from him in return for pseudoephedrine pills that she provided. She informed the court that Mishmash was manufacturing methamphetamine both for his own individual use and for sale to others.
The sentencing judge granted the agreed downward departure and sentenced Mishmash as recommended by the State. The judge then made a specific finding that Mishmash was not manufacturing solely for personal use:
“[T]he Court would find that you were not manufacturing methamphetamine solely for your personal use. You were giving some of it to Miss Camerlynclc. . . . Rather than solely for your personal use, you were still giving some to her for her use. You were trading metliamphetamine for pills. And so, because of that, I think, as a matter of law, you were not using this solely for your personal use. There is also a suggestion that you were selling methamphetamine. In fact, you sold it to Mr. Tommy Green.
“So the Court does find, because you were not using it solely for your personal use, that you will be required to register pursuant to the Kansas Offender Registration Act.”
The Court of Appeals affirmed the registration requirement. State v. Mishmash, No. 103, 158, 2011 WL 426664, at s4-5 (Kan. App. 2011) (unpublished opinion). This court granted Mishmash’s petition for review.
Mishmash challenges tire interpretation of a statute by the district court and the Court of Appeals. The interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012).
K.S.A. 2009 Supp. 22-4902(a)(ll)(A), in effect when Mishmash was convicted, defined an offender for registration purposes:
“As used in this act, unless the context otherwise requires:
“(a) ‘Offender’ means:
“(11) any person who has been convicted of:
(A) Unlawful manufacture or attempting such of any controlled substance or controlled substance analog as defined by K.S.A. 65-4159, prior to its repeal or K.S.A. 2009 Supp. 21-36a03, and amendments thereto, unless the court makes a finding on the record that the manufacturing or attempting to manufacture such controlled substance was for such person’s personal use. . . .” (Emphasis added.)
K.S.A. 22-4904 required registration of “offenders,” as defined in K.S.A. 2009 Supp. 22-4902(a).
There is no question from the evidentiaiy record developed by the district court that Mishmash manufactured methamphetamine for his personal use. The record shows that he also manufactured the drug to exchange it with one other person in order to obtain constituent ingredients and sold some of the manufactured product to one more person. The district court decided that it should read the word “solely” into the personal use exemption provision, and concluded that because Mishmash did not manufacture the drug exclusively for his own use, he was subject to the registration requirement.
The basic rule for understanding statutory language is that the intent of the legislature governs when that intent can be ascertained. Courts merely interpret the language as it appears when that language is plain and unambiguous, and the courts are not free to speculate about legislative intent and may not read into the statute language not found there. Hopkins, 295 Kan. 579, Syl. ¶ 1.
Because the courts are not at liberty to add words to clear language that the legislature has adopted, we must determine whether the word “person” contains within it an implicit restriction to one person.
The Court of Appeals turned to Webster’s Third New International Dictionary 1686 (1986), which defined “personal” to mean “of or relating to a particular person.” This definition does not support the State’s position. Even assuming that “personal use” means use by a particular person, i.e., the manufacturer, the statute still lacks any language stating that the manufacture must be solely for the use by the particular person. Black’s Law Dictionary pro vides a more inclusive definition of “personal”: “Of or affecting a person.” Black’s Law Dictionary 1179 (8th ed. 2004). In fact, replacing the phrase “personal use” with the State’s proposed construction, use by a particular person, would expand the scope of persons subject to the exemption.
Under the State’s reading of the phrase “personal use,” a business that provides computers to its employees and informs them that they may use the computers for personal use would be denying the employees the opportunity to utilize the computers in a professional capacity. A company that provides a car to a traveling salesperson with the explanation that the car may be put to personal use would deny the salesperson the use of the car for sales purposes. Farmers who have marketing agreements to sell part of their crop and retain part of that crop for personal use would not be permitted to feed their families with the retained portion. These situational absurdities illustrate that the words “solely” or “exclusively” are not implicit in the phrase “personal use.”
The legislature chose the words of die registration statute. The legislature is presumed to have expressed its intent through language that it adopted. Haddock v. State, 295 Kan. 738, 754, 286 P.3d 837 (2012). The courts are obliged to take the legislature at its word, unless there is ambiguity, because the legislature, unlike the judiciary, is a branch of government charged with developing public policy on behalf of the electorate and because judicial deference to clear statutory language promotes long-term predictability and stability in Kansas law. O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 348, 277 P.3d 1062 (2012).
When the legislature intends to limit a category, it clearly understands how to insert the necessary language. K.S.A. 22-4904(e), which is another section of the same registration statutory scheme, states: “All funds . . . shall be credited to a special fund of the sheriff s office which shall be used solely for law enforcement and criminal prosecution purposes
The State directs our attention to the principle that courts generally interpret statutes so as to avoid unreasonable results and presume that the legislature does not intend to enact useless, superfluous, or meaningless legislation. See, e.g., State v. LaGrange, 294 Kan. 623, Syl. ¶ 1, 279 P.3d 105 (2012). In affirming the sentence, the Court of Appeals determined that without implying “solely” in the statutory language, the result would be “absurd” and contrary to the clear intent of the legislature. Mishmash, 2011 WL 426664, at *4.
As we noted above, however, the clear intent of the legislature is reflected in the language it chooses to use, and the legislature preferred to enact a statute that did not require the manufactured methamphetamine to be solely for the personal use of the manufacturer. In fact, the clear intent of the legislature, derived from its choice of words, was to include in the registration exemption any manufacturer who made any personal use of the product.
The exemption is not absurd under the facts of this case. Here, the evidence introduced by the State showed that Mishmash consumed the methamphetamine that he manufactured. He also traded some of it in order to obtain precursor chemicals, and he sold some of it to help support the costs of manufacturing. The manufacturing process was for his personal use, even if it was not exclusively for his personal use. The legislature may well have intended a registration exemption for individuals like Mishmash, whose drug production was primarily aimed at feeding his own addiction.
In 2011, the legislature amended K.S.A. 22-4902 and removed the personal use exception. L. 2011, ch. 95, sec. 2. When the legislature amends a statute, this court presumes that it intended to change the law that existed prior to the amendment. State v. Bee, 288 Kan. 733, 738, 207 P.3d 244 (2009). At oral argument, the State explained that the legislature chose to amend the statute because it did not want “the exception to swallow the rule.” The State thereby conceded that the older language was expansive and that the exemption for personal use included more than just manufacturers who were producing exclusively for their own use.
When it sentenced Mishmash, the district court found that some of the methamphetamine that Mishmash manufactured ended up in the possession of other people. The district court used this finding to deny him the statutory exemption from offender registration. In doing so, tire district court improperly added language to the statute that the legislature elected to omit. We therefore vacate that portion of the sentence requiring Mishmash to register as a drug offender. We note that because of the 2011 amendment, this issue is unlikely to come before us again.
Mishmash also asks this court to hold that the determination whether one has manufactured methamphetamine for personal use for registration purposes must be decided by a jury. Because we vacate the registration portion of his sentence, we do not address the Sixth Amendment to the United States Constitution right to a jury trial. See, e.g., State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012) (courts generally do not decide moot questions or render advisory opinions).
The judgment of the Court of Appeals affirming the district court is reversed in part. Judgment of foe district court is affirmed in part, sentence is vacated in part, and case is remanded with directions. | [
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The opinion of the court was delivered by
Luckert, J.:
K.S.A. 2011 Supp. 8-1002(c) provides that where a driver s license is being suspended because an illegal blood-alcohol level has been established by a blood test, “the officer shall serve notice of such suspension in person or by another designated officer or by mailing the notice to the person at the address provided at the time of the test.” (Emphasis added.) This driver’s license suspension case involves the question of whether the phrase “mailing the notice” requires the officer who conducted the alcohol testing to personally deliver the notice of a driver’s license suspension to the custody of a mail carrier or may instead follow his or her office’s standard operating procedures for outgoing mail, as was done in this case, and thereby mail the notice.
We hold that K.S.A. 2011 Supp. 8-1002(c) imposes the responsibility to ensure mailing on the officer but does not require the officer to personally address, stamp, and place in a mailbox an envelope containing tire notice. In this case, an Atchison County Sheriff s officer ensured mailing by following the sheriff s standard operating procedure for mailing the notice and, thus, fulfilled the statutory requirement. Because this conclusion is contrary to the decision of the district court, we reverse the district court and affirm the decision of the Court of Appeals that also reversed the district court, although we reach our holding through a different analysis than that of the Court of Appeals. We remand the case to the district court for further proceedings.
Facts and Procedural Background
On April 17, 2008, the Kansas Department of Revenue (KDR) suspended Tyron Byrd’s driving privileges after a blood test established he had a blood-alcohol concentration of .28 and an officer certified that Byrd had operated or attempted to operate a motor vehicle while intoxicated. An administrative hearing officer affirmed the suspension, and then Byrd filed a petition in district court seeking review of the administrative decision. One of the issues raised by Byrd was whether he was properly served with a copy of the arresting officer’s certification and notice of suspension form, commonly referred to as a DC-27 form, as required by K.S.A. 2007 Supp. 8-1002(c).
At a hearing before the district court, Deputy Biyan Clark of the Atchison County Sheriffs Office, the officer responsible for arresting Byrd for driving under the influence, indicated he initialed a portion of the DC-27 form that reads: “A copy of this document which contains a Notice of Driver’s License Suspension is being served ... by mailing by first-class mail to the address shown above.” Clark testified that after completing the form he followed “the sheriffs office mailing process.” This process, as Clark explained it, required him to place the completed form and the accompanying file in the administrative assistant’s box. The administrative assistant then printed the envelope, placed the appropriate postage on the envelope, and placed the envelope in the mailbox. Clark indicated that “she’s able to print off the addresses on her computer. We don’t have access to that. So she completes that.” He also indicated he does not have access to the postage meter. He explained that when he certified that a copy of the DC-27 form “is being served” by mail he did so because “I mailed it by our mailing system.”
Melissa Hale, the administrative assistant responsible for mailing the DC-27 form, corroborated Clark’s testimony about the procedures established in the sheriff s office for completing and mailing the form. She explained the procedure once she receives a completed DC-27 form from an officer, stating:
“We malee sure everything is completed on it. Usually the undersheriff or sheriff sometimes do this to make sure everything is completed. Then I copy the lab results—the first page of the lab results—and prepare the envelope and put them in the envelopes and print the papers and put the postage on them and then mail them.”
One copy is mailed to the driver, another to the KDR.
With regard to the present case, Hale could not specifically remember mailing the form to Byrd, but she stated that under the “standard operating procedure” of the department the form would have been mailed on March 5,2008, the date of mailing as certified by Clark. There is no dispute that the DC-27 form was mailed to Byrd and that he received it.
At the conclusion of the hearing before tire district court, Byrd argued that Clark failed to properly serve the DC-27 form on him under K.S.A. 2007 Supp. 8-1002(c) because Clark failed to mail the form himself as required by the statute. Because Clark failed to comply with tire statute, Byrd argued that the KDR did not have jurisdiction to take action against his license. Thus, he asked the district court to reverse the KDR’s decision to suspend his driving privileges.
In response, the KDR argued that K.S.A. 2007 Supp. 8-1002(c) should not be strictly construed as requiring a law enforcement officer to actually place a DC-27 form in a mailbox. The KDR contended that as long as officers caused the form to be mailed through the use of administrative staff, the service-by-mail requirements of the statute are satisfied.
The district court agreed with Byrd’s strict reading of the statute and held that K.S.A. 2007 Supp. 8-1002(c) requires that the law enforcement officer directing administration of alcohol testing must actually place the DC-27 form in the mail. Because Clark failed to do this, the district court concluded the service-by-mail requirements of the statute were not satisfied and reversed the KDR’s suspension of Byrd’s driving privileges.
The KDR appealed to the Court of Appeals. The Court of Appeals agreed with the district court’s conclusion that Clark failed to strictly comply with the statute because he did not personally place the notice in the mail. See Byrd v. Kansas Dept. of Revenue, 43 Kan. App. 2d 145, 148-49, 221 P.3d 1168 (2010). Nevertheless, the Court of Appeals reversed the district court, concluding that Clark had accomplished the purpose of the statute and could be deemed to have mailed the DC-27 under the doctrine of substantial compliance. Byrd, 43 Kan. App. 2d at 154-55.
In reaching this conclusion, the Court of Appeals first noted: “There is no explicit language in K.S.A. 2007 Supp. 8-1002(c) allowing an officer to satisfy the service by mail requirements by simply causing the DC-27 form to be mailed to the person.” Byrd, 43 Kan. App. 2d at 148. The court compared the language of K.S.A. 2007 Supp. 8-1002(c) with K.S.A. 60-303(c)(2), which stated:
“The sheriff, party, or party’s attorney shall cause a copy of the process and petition or other document to be placed in a sealed envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, with postage or other delivery fees prepaid, and the sealed envelope placed in the custody of the person or entity effecting delivery.” Byrd, 43 Kan. App. 2d at 148-49.
See K.S.A. 2011 Supp. 60-303(c)(2) (“The sheriff, party, or party’s attorney must give to the person or entity effecting delivery a copy of the process and petition or other document in a sealed envelope, with postage or other delivery fees prepaid, addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto.”). The court noted that K.S.A. 2007 Supp. 8-1002(c) does not allow an officer to simply cause the DC-27 form to be mailed and concluded this meant the officer must physically place the notice in the custody of the entity effecting delivery. Byrd, 43 Kan. App. 2d at 148-49.
Nevertheless, the Court of Appeals adopted the KDR’s alternative argument that it was enough that Clark substantially complied with the statute’s service-by-mail requirement. Byrd, 43 Kan. App. 2d at 149 (quoting City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 [1983]) (“ ‘substantial compliance’ generally means “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute” ’ ”). In accepting the KDR’s argument, the court rejected Byrd’s argument that application of the substantial compliance doctrine was contraiy to the holding in Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 355, 853 P.2d 69, rev. denied 253 Kan. 856 (1993). The court acknowledged that Byrd’s argument was supported by Anderson but concluded that “the reasoning set forth by the court in Anderson is no longer valid given the subsequent amendment to K.S.A. 8-1001 et seq.” Byrd, 43 Kan. App. 2d at 153. Specifically, the Byrd court cited an amendment that was effective just months after the Anderson decision, in which “the legislature added subsection (i) to K.S.A. 8-1001.. . . L. 1993, ch. 275, sec. 1”; the Byrd court continued, noting: “That subsection, now found at K.S.A. 2007 Supp. 8-1001(v), states: ‘This act is remedial law and shall be liberally construed to promote public health, safety and welfare.’ ” Byrd, 43 Kan. App. 2d at 153. The court reasoned that this provision allowed for the application of the substantial compliance doctrine to the service-by-mail requirement of K.S.A. 2007 Supp. 8-1002(c). Therefore, the court concluded that “when determining whether service by mail has been achieved under K.S.A. 2007 Supp. 8-1002(c), technical irregularities may be overlooked if the essential purpose of the statute has been fulfilled under the facts of the case. [Citations omitted.]” Byrd, 43 Kan. App. 2d at 154.
The Byrd court cited Anderson for its holding regarding the purpose of K.S.A. 2007 Supp. 8-1002(c), which is “ ‘to guarantee that a person whose license has been suspended is aware of his or her right to appeal.’ 18 Kan. App. 2d at 355.” Byrd, 43 Kan. App. 2d at 154. The Byrd court concluded:
“This purpose was fulfilled under the facts of this case. Though Clark did not place the DC-27 form in the mail, he directed Hale to do so. Though Hale could not specifically remember mailing the form to Byrd, she obviously did so because: (1) Byrd timely requested an administrative hearing; and (2) he introduced the DC-27 form he received in the mail into evidence at trial before the district court. Simply stated, Hale’s act of placing the DC-27 form in the mail was essentially no different than if Clark had placed die form in the mail himself. Byrd has not raised (nor can he raise) any argument to show how he was prejudiced by receiving a DC-27 form that was placed in the mail by Hale instead of Clark. Absent any showing of prejudice by Clark, his argument lacks merit. [Citation omitted.]” Byrd, 43 Kan. App. 2d at 154-55.
Byrd filed a petition for review, which this court granted. We have jurisdiction over this appeal under K.S.A. 20-3018(b).
Analysis
Our review of the Court of Appeals’ decision presents a question of statutory interpretation, which is a question of law over which tliis court exercises unlimited review. 143rd Street Investors v. Board of Johnson County Commr's, 292 Kan. 690, 698, 259 P.3d 644 (2011). Well-known principles of statutory interpretation apply. The most fundamental of these rules is that the intent of the legislature governs if that intent can be ascertained. 143rd Street Investors, 292 Kan. at 698. The first step in ascertaining legislative intent is to examine the statutory language, giving common words their ordinary meanings. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009). If upon examination the statute’s language or text is unclear or ambiguous, a court may use legislative history, canons of construction, or other background considerations to construe the legislature’s intent. 143rd Street Investors, 292 Kan. at 698.
In applying these rules to K.S.A. 2011 Supp. 8-1002(c), which has the same language as the 2007 version, we first attempt to ascertain the legislature’s intention by examining the statutory language—“the officer shall serve notice of such suspension in person or by another designated officer or by mailing the notice to the person at the address provided at the time of the test.” In doing so, we must begin with the ordinary meaning of the verb “mail,” which is:
“1. To deposit (a letter, package, etc.) with the U.S. Postal Service; to ensure that letter, package, etc. is properly addressed, stamped, and placed into a receptacle for mail pickup. 2. To deliver (a letter, package, etc.) to a private courier service that undertakes delivery to a third person, often within a specified time.” Black’s Law Dictionary 972 (8th ed. 2004).
The first alternative—to deposit the DC-27 form with the United States Postal Service—was applied by the district court and the Court of Appeals. Neither court considered the implications of the second alternative—“to ensure that a letter, package, etc. is properly addressed, stamped, and placed into a receptacle for mail pickup.” (Emphasis added.) Yet, this use of the word is common in business and organizational settings, such as a sheriff s office or law firm, where a person depends on the business’ or organization’s mail system for the performance of the physical acts of addressing an envelope, affixing postage, and delivering an envelope to the United States Postal Service or another courier. While the person who authored the item being mailed does not perform the physical acts associated with the mailing, the person is responsible for the mailing—in other words, guarantees or ensures the mailing—by using the standard office procedures. In this sense, the word “mail” does not require that the person responsible for the mailing be the one who physically deposits the item into the custody of the entity responsible for delivery.
In light of these variations in meaning, the legislature’s use of the word “mailing” is ambiguous. The legislature did not provide further guidance by defining the term or using language like that found in K.S.A. 2011 Supp. 60-303(c). Cf. K.S.A. 8-1433 (defining “mail”; means to “deposit in United States mail properly addressed and with postage prepaid”); K.S.A. 31-150a(a) (incorporating K.S.A. 2011 Supp. 60-103 for definition of restricted mail); K.S.A. 43-166 (same); K.S.A. 58-30al5 (same); K.S.A. 2011 Supp. 60-2803(a) (same).
Without specific guidance from the legislature that clarifies the ambiguity, we turn to legislative histoiy, canons of construction, and other background considerations to ascertain legislative intent. Regarding legislative histoiy, the parties have not cited and we have not found any information that assists in determining what the legislature intended. Turning to canons of construction, only one applies; that is the canon that requires a court to construe a statute in a reasonable manner. See Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 322-23, 255 P.3d 1186 (2011).
As we consider a reasonable application of the potential definitions of “mail”—one requiring the officer to physically place the DC-27 in the mail and the other requiring the officer to ensure that the DC-27 is properly addressed, stamped, and mailed—we conclude the legislature did not intend for a law enforcement officer to have to physically undertake the clerical tasks associated with mailing a notice. Rather, the legislature intended to place the responsibility on the certifying officer to ensure that the DC-27 is mailed. In order to fulfill that responsibility, there must be a process and procedure in place for the mailing of a DC-27 form, and the officer must take responsibility for ensuring that the process and procedure are followed.
On the record in this case, there was uncontroverted evidence that there was a policy in place—a standard operating procedure— and assigned personnel .to ensure that the mailing would occur. The evidence was also uncontroverted that the policy and process were followed. Clark mailed the DC-27 to Byrd by following this procedure.
Because we apply this plain meaning to the verb “mail,” we do not need to consider the effect of K.S.A. 2011 Supp. 8-1001(v) (“This act is remedial law and shall be liberally construed to promote public health, safety and welfare.”). .Nor do we need to consider the doctrine of substantial compliance, which unlike the Court of Appeals, we deem to be a separate doctrine from liberal construction of a statute. Instead, because there is uncontroverted evidence that Clark ensured that the DC-27 form was mailed according to standard office policy and procedure, we determine that he mailed the DC-27 form. Hence, although on different grounds, we affirm the Court of Appeals’ decision to reverse the district court. We remand to the district court for consideration of Byrd’s appeal of his driver’s license suspension.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Luckert, J.:
This appeal raises the issue of whether a district court can order a child support obligor to cooperate with a child support obligee in the obligee’s efforts to obtain insurance on the obligor s life if the obligor objects to the issuance of the life insurance policy. We hold that a district court cannot issue such an order because the order would be contrary to public policy as expressed by the Kansas Legislature in K.S.A. 40-453(a), which provides that an insurable interest does not exist if a person whose life is insured makes a written request for the termination or nonrenewal of the policy. Because our holding is contraiy to the order of the district court and tire Court of Appeals in this case, we reverse those decisions.
Facts and Procedural Background
At a hearing in the divorce proceeding between Marc and Susan Hall, Susan asked the court to order Marc to “cooperate” with her to obtain insurance on Marc’s life at Susan’s expense. Susan specified that she wanted the life insurance as security for the payment of any maintenance or child support the court would order Marc to pay. Susan clarified that she was not asking Marc to pay for the life insurance. Marc objected to Susan s request, arguing the court lacked jurisdiction to enter the order.
In the decree of divorce, the court ordered Marc to pay maintenance and child support. In addition, despite Marc’s objection, the district court ordered Marc to “cooperate” with Susan’s attempts to obtain insurance on Marc’s life at Susan’s own expense. The court ruled:
“K.S.A. 60-1610[(a)(l)] states that the court shall make provisions for the support and education of the minor children. The Court finds that a major portion of the current support and education of the minor child is coming from Mr. Hall. That if tire child were to lose that financial assistance, it would seriously affect his support and education. Since mother is willing to pay for tire cost of life insurance, Court will order that Mr. Hall cooperate in Mrs. Hall’s purchase of the life insurance policy to ensure support and education in case he were to pass away. I will grant that request.”
Marc timely appealed to the Court of Appeals. The Court of Appeals affirmed the district court’s order. In re Marriage of Hall, 43 Kan. App. 2d 392, 396, 225 P.3d 764 (2010). Marc filed a petition for review which this court granted. Consequently, this court has jurisdiction under K.S.A. 20-3018(b).
Court of Appeals Decision
The Court of Appeals first rejected Marc’s argument that the district court impermissibly created and divided a property interest under K.S.A. 60-1610(b)(l) (division of property). The Court of Appeals determined the district court was merely attempting to allow Susan the opportunity to secure the child support payments that it had ordered Marc to pay. In addition, the panel concluded the district court had subject matter jurisdiction to enter such an order under K.S.A. 60-1610(a)(l) (child support and education of minor children). Marriage of Hall, 43 Kan. App. 2d at 394. Marc did not challenge these holdings in his petition for review.
Instead, Marc focuses on another holding of the Court of Appeals, which was that the district court’s order did not violate public policy. In reaching this holding, the Court of Appeals concluded the only requirement in Kansas is an “insurable interest” between the party taking out the insurance policy and the party whose life is insured. The court held that Susan clearly had an insurable interest in Marc’s life as long as she was entitled to receive maintenance and child support payments. Marriage of Hall, 43 Kan. App. 2d at 395. Before us, Marc contends the order clearly violates Kansas public policy. As we will discuss, we agree with this argument and consequently reverse this holding of the Court of Appeals.
Finally, the Court of Appeals rejected Marc’s argument that the district court’s order amounted to a continuation of child support beyond the age of majority and of maintenance beyond the ordered period. The Court of Appeals determined the district court did not err because once Marc’s child support and maintenance obligations end, Susan will no longer have an insurable interest in Marc’s life. Marriage of Hall, 43 Kan. App. 2d at 395-96. Marc renews this argument in his petition for review, but we do not reach the question because we reverse the Court of Appeals on its public policy holding.
Analysis
The specific public policy issue that we address is whether the district court’s order violates Kansas public policy because it is contrary to K.S.A. 40-453(a), which provides that an insurable interest ceases when an insured under a life insurance policy requests the insurer to terminate or nonrenew the policy applicable to such person’s life. Marc contends that this statute provides him an “absolute statutory right to terminate any insurance policy on his life.” An order depriving him of the ability to exercise his statutory right is against public policy, he argues.
This issue requires us to interpret K.S.A. 40-453(a). Interpretation of a statute is a question of law subject to unlimited review. Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 320, 255 P.3d 1186 (2011).
K.S.A. 40-453 provides:
“(a) Determination of the existence and extent of the insurable interest under any life insurance policy shall be made at the time the contract of insurance becomes effective but need not exist at the time the loss occurs. In the case of life insurance policies issued or renewed for a specific term, an insurable interest shall not exist for any policy term toith respect to any person previously insured by the policy who has, in writing, requested the insurer to terminate or nonrenew the insurance applicable to such persons life.” (Emphasis added.)
Under the plain language of the statute, if Susan obtained a life insurance policy on Marc’s life and Marc then requested, in writing, that the insurer terminate or nonrenew the insurance, Susan would not have an insurable interest. That is not exactly the situation presented. Rather, the district court ordered Marc to cooperate in obtaining the insurance. But Marc argues this order would be futile if he can terminate the insurable interest and that the legislature’s grant of a right of termination expresses a public policy that his life cannot be insured over his objection.
The ultimate reason for Marc to raise this issue is that an insurance contract is not enforceable in Kansas if it conflicts with public policy. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 258, 225 P.3d 707 (2010). Yet, as the Court of Appeals noted in this case, prior decisions of this court have not focused on consent as a basis for a public policy violation and instead have focused on whether the person taking out the life insurance policy has an insurable interest in the life that is insured. Often these holdings have been in the context of a question regarding whether an insurance policy is, in essence, a wager on the life of the insured or whether the possibility of insurance proceeds encourages one to take another’s life. Both situations are contrary to this state’s public policy. E.g., Insurance.Co. v. Elison, 72 Kan. 199, 203-04, 83 P. 410 (1905). Because of these public policy concerns, “this court has repeatedly held that a person who has no insurable interest in another’s life cannot take out insurance thereon. [Citations omitted.]” Geisler v. Mutual Benefit H. & A. Assn, 163 Kan. 518, 522, 183 P.2d 853 (1947); see Tromp v. National Reserve Life, 143 Kan. 98, 102-03, 53 P.2d 831 (1936) (insurable interest created by alimony obligation); Colver v. Central States Fire Ins. Co., 130 Kan. 556, 562, 287 P. 266 (1930) (“Furthermore, a salutary public policy will not give judicial recognition to a contract of insurance on the life or property of another person issued in behalf of one who has no insurable interest therein.”). These cases support the Court of Appeals’ conclusion that the public policy focus is on whether there is an insurable interest.
Nevertheless, since Elison and Geisler, the Kansas Legislature has provided guidance on the public policy in this area through the development of statutoiy law, namely with the enactment in the 1990’s of several statutes, including K.S.A. 40-450, which requires an insurable interest in the life of another in order to obtain life insurance on another’s life; K.S.A. 40-452, which allows an employer to insure an employee’s life if the employee consents; and the statute on which Marc focuses, K.S.A. 40-453, which indicates an insurable interest in the life of insured terminates if the insured objects to the policy. After these statutes were adopted, only one appellate court case has discussed the public policy implications of K.S.A. 40-453—In re Marriage of Day, 31 Kan. App. 2d 746, 74 P.3d 46 (2003).
Marriage of Day involved a divorce action in which the district court ordered the husband to continue ordinary and term life insurance policies on his mother’s life and upon her death to pay part of the proceeds to his ex-wife. The ex-wife maintained that she should be entitled to proceeds from the policies because she considered the insurance to be a form of the parties’ retirement. Marriage of Day, 31 Kan. App. 2d at 748.
On appeal, the Marriage of Day court determined there was clearly an insurable interest in the mother’s life at the time the policy was taken out, which the court determined was the pertinent time. Marriage of Day, 31 Kan. App. 2d at 752-53. Yet, the court found “there are several basic problems with the trial court’s rulings.” Marriage of Day, 31 Kan. App. 2d at 756.
Specifically, the Marriage of Day court identified at least three problems with the trial court’s order. First, the Marriage of Day court noted that “recent legislative action shows a public policy contrary to [the ex-wife’s] arguments.” Marriage of Day, 31 Kan. App. 2d at 756. The court discussed the legislative history of K.S.A. 40-453(a), noting:
“[T]he provisions resulted from H.B. 2083 which was originally intended to allow employers to have insurable interests in employees. Minutes of Senate Committee on Financial Institutions and Insurance, March 12, 1993. The House act was amended in conference committee, and tire broad language of K.S.A. 40-453(a) resulted. This wording, while upholding [the ex-wife’s] arguments as to the initial existence of an insurable interest continuing until the time the loss occurs, malees tire insurable interest not exist when the insured asks, in writing, for the insurer to terminate' or nonrenew the coverage.” Marriage of Day, 31 Kan. App. 2d at 756. '
Second, the Marriage of Day court concluded K.S.A. 40-453(a) “also shows the futility of the trial court’s ruling, as [the mother] has an absolute right to require the policy be terminated or non-renewed.” Marriage of Day, 31 Kan. App. 2d at 756. Third, the Marriage of Day court determined that the district court was, in effect, requiring a continuance of a gambling contract on the mother’s life as she would have to “die short of reaching her normal life expectancy in order to benefit both husband and wife.” Marriage of Day, 31 Kan. App. 2d at 757. Under this scenario and in light of Kansas’ long-standing public policy against insurance in favor of one who is more interested in the insured’s death than continued life, the Marriage of Day court, citing Elison, held that “[t]o require the coverage to be continued against [the mother’s] wishes is against public policy.” Marriage of Day, 31 Kan. App. 2d at 757.
In the present case, the Court of Appeals found Marriage of Day factually distinguishable and did not consider the case any further: Marriage of Hall, 43 Kan. App. 2d at 395. Further, the Court of Appeals did not expressly consider Marc’s arguments based on K.S.A. 40-453. ■ ■
While we agree that Marriage of Day is factually distinguishable, we find the decision’s analysis of K.S.A. 40-453(a) persuasive and applicable to this case. The order at issue in this case suffers from the first two problems identified by the Marriage of Day court. Primarily, as Marc argues, K.S.A. 40-453(a) grants him a statutoiy right to request that a policy insuring his life be terminated or nonrenewed. In granting this right, the Kansas Legislature expressed a public policy that a life insurance policy cannot continue without the insured’s consent. Second, while life insurance could possibly be obtained, the order to “cooperate” would be futile because of Marc’s statutory right.
Although the Court of Appeals did not specifically discuss K.S.A. 40-453(a) or the portion of the Marriage of Day decision discussing the implications of the statute, it did generally consider Marc’s argument that the district court’s order was against public policy because consent of an insured is required in order to obtain insurance on that person’s life, stating: “[0]ur research has found no case law or statute in Kansas that specifically requires the insured to consent to having a life insurance policy on his or her life.” Marriage of Hall, 43 Kan. App. 2d at 395. Based on this conclusion, the Court of Appeals also distinguished cases from other jurisdictions. The court noted that most other states requiring consent do so based on a specific state statute that requires the consent of the insured in order to obtain life insurance. Because Kansas has no similar provision, the Court of Appeals in this case dismissed the persuasive authority of these cases. Marriage of Hall, 43 Kan. App. 2d at 395.
We agree that in a situation other than where an employer insures the life of an employee, there does not appear to be a statute that requires consent of the person whose life is insured in order for a life insurance policy to be issued. Nevertheless, as Marc argues, K.S.A. 40-453(a) allows the person whose life is insured to object to the continuance of the policy, and when such an objection is stated, the insurable interest ends. By giving Marc or others the right to cancel a policy, the legislature, in essence, has required ongoing consent. From a public policy standpoint, there is little or no difference between K.S.A. 40-453(a) and K.S.A. 40-452(a)— both, in essence, require the insured’s consent in order for the life insurance policy to remain effective. There is, of course, a practical difference between the consent being required before the policy is obtained and allowing the insured to give written notice that a policy should be terminated or nonrenewed. After an examination of the legislative history, we can discern no reason for the legislature to adopt a prospective approach in one statute and a retrospective approach in another. Although this difference has multiple implications and creates potential legal distinctions, the public policy implications of both statutes overlap; the Kansas Legislature has expressed its intent that a life insurance policy cannot be ob tained or maintained if the insured objects. See Phillips v. St. Paul Fire & Marine Ins. Co., 289 Kan. 521, 525-26, 213 P.3d 1066 (2009) (court must ascertain legislature’s intent through statutory language unless statute’s language is unclear or ambiguous).
In light of that legislative expression of public policy, we find the decisions from other states persuasive. Generally, courts in other jurisdictions have held that a court cannot issue an order requiring insurance to secure payment of child support if the person whose life is insured does not consent.
For example, in Davis v. Davis, 275 Neb. 944, 750 N.W.2d 696 (2008), appellant filed a postdissolution motion requesting an order directing her ex-husband to submit to a physical examination so that she could obtain, at her own expense, a policy on his life, naming her as beneficiaiy, as security for his alimony and child support obligations. The Nebraska Supreme Court assumed that appellant had an insurable interest. But because Neb. Rev. Stat. § 44-704 (2004) specifically requires an adult insured to consent to an insurance policy on his or her life unless the individual or the individual’s spouse is tire owner of the policy, the Nebraska Supreme Court ruled that, regardless of an insurable interest, the appellant did not have a right to “own” a policy on her ex-husband’s life without his consent. Davis, 275 Neb. at 948.
Similarly, in Hopkins v. Hopkins, 328 Md. 263, 614 A.2d 96 (1992), after the appellant was granted a divorce and awarded alimony payments, she filed in tire district court a motion to compel her ex-husband to cooperate with her request for insurance on his life. The appellant maintained that she would pay the premiums and all other costs of the policy; all that was required of the ex-husband was a physical examination. Hopkins, 328 Md. at 267. The court ruled that the appellant had an insurable interest in her ex-husband’s life as long as he owed her alimony. Hopkins, 328 Md. at 269. Even so, because Md. Insurance Code, Art. 48A, § 371 (1991) required written consent of the insured, the Maryland court ruled that “[a] court order requiring the proposed insured to cooperate with the efforts of a party with an insurable interest to obtain a policy of insurance on his life can not effect the consent contemplated by § 371.” Hopkins, 328 Md. at 275. The court looked to other jurisdictions with similar statutes and noted that the cases in those jurisdictions malee it clear that it is against the public policy of the state to permit an individual to insure the life of another without that person’s knowledge or consent. Hopkins, 328 Md. at 271; see PHL Variable Ins. Co. v. Price Datoe 2006 Ins. Trust, 28 A.3d 1059, 1076 (Del. 2011) (Delaware statute prohibits policies issued without the consent of the insured except in narrow situations); Lowe v. Rennert, 869 S.W.2d 199, 203 (Mo. App. 1993) (Missouri statute expressly requires consent except as to children); Meerwarth v. Meerwarth, 128 N.J. Super. 285, 289, 319 A.2d 779 (1974) (denying, as a violation of his right to privacy, ex-wife’s motion for ex-husband to submit to physical examination so she could secure life insurance on husband’s life as security for alimony); cf. Cook v. Bankers Life and Cas. Co., 329 N.C. 488, 493, 406 S.E.2d 848 (1991) (Although generally the consent of the insured is required even if a person has an insurable interest, the North Carolina statute “allows a married person to insure the life of his or her spouse and it does not provide that such a person must have the consent of the spouse to do so. We do not believe we should add this requirement to the statute.”).
Likewise, in Kansas, it would be against the public policy expressed in K.S.A. 40-453(a) to prohibit an insured from expressing his or her objection to a life insurance policy on the insured’s life. In light of this expression of intent by the legislature, courts “are not free to act on . . . [their own] view of wise public policy” in matters governed by legislation. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 364, 204 P.3d 1156 (2009). Courts should instead “leave the guidance of public policy through statutes to the legislature.” Higgins, 288 Kan. at 364; see also O’Bryan v. Columbia Ins. Group, 274 Kan. 572, Syl. ¶ 2, 56 P.3d 789 (2002) (“Courts should avoid making public policy where the statutory law has developed.”).
Hence, we hold a court order requiring a child support obligor to cooperate with a child support obligee’s efforts to obtain insurance on the life of an obligor is against public policy, as expressed by the Kansas Legislature in K.S.A. 40-453(a), if the obligor objects to the order. Because Marc objected to the order, the district court’s order in this case was contrary to this public policy. As a result, we conclude the court abused its discretion in issuing the order. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (a court abuses its discretion if its decision is based on an error of law).
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.
Moritz, J., not participating.
Thomas H. Sachse, District Judge, assigned. | [
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The opinion of the court was delivered by
Nuss, C.J.:
Sex offenders must inform their local law enforcement agency within 10 days of changing their address of residence per K.S.A. 22-4904(b). Registered sex offender Douglas LeClair left his Salina residence on June 1, 2007. He then traveled the southwest United States for approximately 3 weeks before settling in Las Vegas, Nevada, and registering as an offender on July 9.
LeClair was convicted of one count of failing to notify die Saline County Sheriff widiin 10 days of changing his address of residence—for the time period of June 1-11. The Court of Appeals affirmed LeClair’s conviction, rejecting his argument that he had not yet established a new residence and therefore had no duty to register during that 10-day period. We granted LeClair’s petition for review under K.S.A. 20-3018(b), and we now reverse.
Facts
In 1988 Douglas LeClair pleaded guilty to statutory rape and indecent liberties in Washington state. He later moved to Salina and duly registered as a sex offender with the Saline County Sheriff s Department on April 4, 2007.
The following June 1, LeClair caught a ride with his landlord to the Salina bus station. LeClair told his landlord that he planned on going to Las Vegas, Nevada. LeClair traveled to Las Vegas but left after spending a couple of nights in a shelter. He then hitchhiked to Salt Lake City and Provo in Utah. While in Provo, he mailed a letter postmarked June 5 to the Saline County Sheriffs Office, which stated, “I, Douglas M. LeClair, ... a registered sex offender in Saline County, am leaving the State of Kansas. I will not be returning. When I get to where I am going, 1 will contact local law enforcement.”
For the remainder of the first 3 weeks of June, LeClair hitchhiked to Flagstaff and Phoenix in Arizona and to Santa Maria in California. He testified he often slept outside in the “bush” on the roadside in a sleeping bag. And he never stayed in one city for more than 3 or 4 days.
During the third week in June, LeClair moved to Las Vegas, eventually renting an apartment on June 30. Within 10 days, on July 9, he registered as an offender with the Las Vegas Metropol itan Police Department. He testified that he “thought he had done everything [he] was supposed to do” under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., because when registering in Nevada, he confirmed that the Las Vegas police would notify the State of Kansas. The Las Vegas police did notify the Saline County Sheriff via email on March 12,2008, that LeClair had registered with them on July 9, 2007.
In October 2007, the State charged LeClair with five counts of failing to register as an offender as required by the KORA. See K.S.A. 22-4903. Count 1 charged that he failed to inform the Saline County Sheriff s Department of his new address within 10 days of leaving Salina: June 1 through June 11, 2007. Counts 2-5 charged him with similarly failing to inform the department for four consecutive 30-day periods between June 11 and October 11, 2007.
After a bench trial, the district court found LeClair guilty of Count 1 but acquitted him of Counts 2-5. Failure to register as an offender is a severity level 5 person felony under K.S.A. 22-4903, and the district court sentenced him to 24 months’ incarceration and 24 months’ postrelease supervision. LeClair appealed, and the Court of Appeals affirmed. State v. LeClair, 43 Kan. App. 2d 606, 228 P.3d 1103 (2010).
Analysis
Issue: The evidence is insufficient to support LeClair s conviction.
Standard of Review
LeClair argues that his conviction lacks sufficient evidence as a matter of law. In analyzing this issue, we consider “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. McWilliams, 295 Kan. 92, Syl. ¶ 1, 283 P.3d 187 (2012).
To support LeClair’s argument, he more particularly asks that we interpret K.S.A. 22-4904(b). Interpretation of a statute is a question of law, and this court’s review is unlimited. Accordingly, we are not bound by the lower courts’ interpretation of a statute. State v. Nambo, 295 Kan. 1, 3, 281 P.3d 525 (2012).
Discussion
The statute LeClair asks us to interpret, K.S.A. 22-4904(b), states
“[i]f any person required to register as provided in this act changes the address of the persons residence, the offender, within 10 days, shall inform in writing the law enforcement agency where such offender last registered and the Kansas bureau of investigation of the new address.” (Emphasis added.)
Citing Black’s Law Dictionary 1423 (9th ed. 2009), the Court of Appeals panel defined “residence” as “(1) ‘[t]he act or fact of living in a given place for some time’; (2) ‘[t]he place where one actually lives, as distinguished from a domicile’; or (3) ‘bodily presence as an inhabitant in a given placed ” (Emphasis added.). LeClair, 43 Kan. App. 2d at 610. Apparently emphasizing this latter exposition, the panel determined that LeClair changed the address of his residence once he simply left Salina. Because he left on June 1 but did not register with Las Vegas police until July 9, the panel affirmed LeClair’s conviction on Count 1.
Before this court, LeClair argues that the panel’s definition of residence is too broad. He asserts that if he were required to notify the authorities every time his “bodily presence” inhabited a given place, he would have to provide notification for even short trips to the grocery store. LeClair contends that for practical reasons we should interpret K.S.A. 22-4904(b) in his favor and a “residence” should require an intent to remain in a given location. See Estate of Schoof v. Schoof, 193 Kan. 611, 614, 396 P.2d 329 (1964) (residence requires bodily presence at location coupled with an intent to remain either permanently or for an indefinite period). He therefore argues that a “change of address of residence” can only occur when an offender actually obtains a new residence, i.e., by intending to remain in that location.
The State responds that we should adopt the panel’s definition of “residence.” It argues that because LeClair both “lived in” and especially was “bodily present” in several southwestern cities for a while before he registered in Las Vegas, he could have reported those addresses to the Saline County Sheriff. The State particularly contends that the broad legislative intent behind KORA—protection of public safety—supports its statutory interpretation. We disagree with the State for several reasons.
First, we have stated that we will not judicially amend KORA to satisfy its overall legislative purpose. See State v. Fredrick, 292 Kan. 169, 174, 251 P.3d 48 (2011). We reiterate that “our role is to determine the legislature’s intent through the statutory language employed.” 292 Kan. at 174-75; see State v. Hendrix, 289 Kan. 859, Syl. ¶ 2, 218 P.3d 40 (2009) (“Intent of the legislature is to be derived in die first place from the words used.”).
Second—and concordant with our role stated above—we are required to follow the rules of statutory construction set out at K.S.A. 77-201 unless “the construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute.” (Emphasis added.) And K.S.A. 77-201 Twenty-third specifically defines “residence”:
“ ‘Residence’ means the place which is adopted by a person as the person’s place of habitation and to which, whenever the person is absent, the person has the intention of returning. When a person eats at one place and sleeps at another, die place where the person sleeps shall be considered the person’s residence.” (Emphasis added.)
This statutory definition of residence—that it be an actual place of habitation and where the absent person intends to return— clearly is not inconsistent with the manifest intent of the legislature as expressed by the plain language of K.S.A. 22-4904(b). See Hendrix, 289 Kan. 859, Syl. ¶ 2 (legislative intent first derived from words it used). Nor is the definition repugnant to 22-4904(b)’s context, again based upon the statute’s plain language.
There is no inconsistency or repugnancy because the statute distinctly requires that once the offender “changes the address of the person’s residence,” the offender must register within 10 days of obtaining “the new address” of residence. (Emphasis added.) K.S.A. 22-4904(b). So we must reject the State’s contention at oral argument that LeClair’s “address of residence” could be a one-night stay on a park bench. Among other things, it is difficult to imagine how under 22-4904(b) an offender should inform law en forcement of his “new [residential] address” as a “park bench in Albuquerque.” And it is equally difficult to imagine how that park bench for one night establishes a “change [in] the address of the person s residence.” Consequently, we conclude that under K.S.A. 22-4904(b), an offender does not change the address of residence until obtaining a new place of habitation where the person intends to remain. This conclusion necessarily rejects the panel’s holding that under this statute an address of residence simply means one’s bodily presence at a location.
Now that we have crossed the threshold of analyzing the statute, we turn to LeClair’s argument—that the evidence is insufficient to support his conviction. We begin by observing he was only convicted of failing to register between June 1 and June 11, 2007. If, as LeClair argues, he did not obtain a new address of residence during that time period, he was not required to register under K.S.A. 22-4904(b). And the evidence necessarily would be insufficient to convict on the crime for which he was charged. See State v. Houck, 240 Kan. 130, 135-36, 727 P.2d 460 (1986).
According to LeClair’s testimony, after taking a bus from Salina on June 1, he hitchhiked to six cities in the Southwest for approximately the next 3 weeks. He never stayed in one city for more than 3 or 4 days. He did not register as an offender while visiting those cities because he “wasn’t staying anywhere . . . [and] was sleeping out in the bush.” Other than the landlord’s testimony that LeClair was going to Las Vegas, the State presented nothing to attempt to contradict LeClair’s testimony. It instead relied upon its interpretation of the statute as discussed above.
Based upon this essentially unrefuted evidence, we conclude that between June 1 and June 11, 2007, LeClair never adopted a “place of habitation,” to which, whenever he was absent, he had “the intention of returning.” See K.S.A. 77-201 Twenty-third. Accordingly, during that time period he did not “change the address of his residence” to a “new address.” See K.S.A. 22-4904(b). So he was not required to register under 22-4904(b). And his conviction therefore must be reversed.
Although our analysis is concluded, we note that since June 2007, legislation has passed that would have likely required an of fender in LeClair’s situation to have registered after he left Salina but before he established a new residence. See K.S.A. 2011 Supp. 22-4905(e) (stating that a transient offender must “report in person to tire registering law enforcement agency of such county or location of jurisdiction in which the offender is physically present within 3 business days of arrival in the county or location of jurisdiction”).
The judgment of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Jaime Rodriguez appeals his conviction of first-degree felony murder in the death of his 5-month-old son, Louie. He argues that the district court judge erred by failing to instruct sua sponte on reckless second-degree murder and reckless involuntary manslaughter, by giving an incorrect jury instruction on child abuse, by admitting gruesome photographs that were unduly graphic and cumulative, and by denying his motion for new trial.
We hold that there was no error and affirm Rodriguez’ conviction.
Factual and Procedural Background
Louie was the son of Corrine Quinonez and defendant Rodriguez; he died December 17, 2006. He had been in poor health during his 5 months of life, spending the first of them in a neonatal intensive care unit and then making several visits to doctors for a variety of problems.
Approximately 1 week before his death, Louie’s mother took him to the emergency room because, according to her, Louie had “ballooned up beyond recognition and he was having extreme difficulty breathing.” Louie was treated and sent home with a prescription for steroids, but his mother could not afford to fill the prescription.
Two days later, Louie was home with both of his parents. His mother prepared a bottle of formula, but Louie consumed less than usual. About 3 p.m., Louie’s mother left Louie at home with Rodriguez. When she returned about an hour later, Rodriguez was frantic and on the phone with a 911 operator, and he yelled that Louie was not breathing.
When paramedics arrived, Louie’s mother was performing mouth-to-mouth resuscitation on Louie. The paramedics took over and observed that Louie was gasping and that his lips were blue. Louie’s mother told the paramedics that she thought Louie was having an allergic reaction. Rodriguez said nothing. The paramedics rushed Louie to Providence Medical Center in Kansas City.
Upon Louie’s arrival at Providence, Dr. Marianna Poulose placed a tube down his throat to administer oxygen. Louie was limp and unresponsive and had blood in the whites of his eyes. Another doctor administered epinephrine to help with Louie’s heart function. In addition, the doctors ordered a chest X-ray and conducted blood tests. After 20 minutes, Louie was air-lifted to Children’s Mercy Hospital in Kansas City, Missouri, for specialized care.
At Children’s Mercy, Louie was placed on a ventilator to stabilize his oxygenation. Dr. Patricia Webster noticed that Louie’s “soft spot” on his head was tense and bulging, suggesting that there was excessive pressure inside his skull. A CT scan revealed significant blood around the surface of Louie’s brain and extreme swelling of the brain itself. Webster also saw blood in Louie’s left eye. She believed his injuries were consistent with those of a shaken baby. Dr. Michael Moran and Dr. Laura Plummer also examined Louie the day after he was admitted to Children’s Mercy.
Rodriguez told hospital personnel and investigators that he had been asleep in bed with Louie while Louie’s mother was gone. When Louie awoke, Rodriguez got up and changed Louie’s diaper, then went to the kitchen to dispose of the diaper. When Rodriguez returned to the bedroom moments later, Louie was unresponsive and was having difficulty breathing. Rodriguez called 911.
Within a few days of Louie’s arrival at Children’s Mercy, he was pronounced brain dead, and his mother approved removal of life support. Dr. Erilc Mitchell, a forensic pathologist, conducted Louie’s autopsy.
Rodriguez was charged with first-degree felony murder with child abuse as the underlying felony. His first trial ended in a hung jury, and he was retried.
At the retrial, the State put on several doctors who treated or reviewed Louie’s condition before his death. Webster testified that it was her opinion vigorous shaking had caused Louie’s injuries, which were consistent with “nonaccidental trauma.” Moran testified that he had reviewed Louie’s CT scans and that they showed Louie’s brain was “massively swollen,” causing the bones of his skull to separate. Moran concluded that Louie’s injuries were the result of “intentionally inflicted head trauma.” Plummer testified that Louie had multilayered hemorrhaging of the eyes and that this type of injuiy was consistent with “shaken baby nonaccidental trauma.”
The district judge conducted a hearing outside the presence of the jury regarding four autopsy photos the State planned to offer as evidence. Three photos showed Louie’s scalp pulled back; the fourth was taken after Louie’s skull had been removed and showed his brain covered in coagulated blood. Defense counsel objected to the admission of tire photos, arguing that they were “very prejudicial” because of their graphic nature, that their prejudicial effect “far outweigh[ed] any probative value,” and that the photos would inflame tire jurors’ passions. The district judge overruled the objection.
Defense counsel renewed the objection to the photos when they were offered into evidence during Mitchell’s testimony, and the renewed objection also was rejected. Mitchell testified that Louie had blood between his skull and his brain. Because there was no bleeding elsewhere in the brain, Mitchell concluded that Louie suffered some form of trauma, either a direct impact or as a consequence of rotational movement, i.e., shaking.
Rodriguez’ sole witness in the second trial was Dr. Mohammed Al-Bayati, a pathologist and toxicologist, who testified that his review of Louie’s medical history and the hospital records suggested that an infection was the cause of Louie’s death, specifically, whooping cough. Al-Bayati based his conclusions in part on fluctuation of Louie’s weight and height measurements between doctor visits. Al-Bayati’s conclusions relied in part on his belief that Louie’s brain was not swollen when Louie was admitted to the hospital, a belief based on his misreading of Louie’s CT scan report. During cross-examination, the prosecutor pointed out that Al-Bay-ati missed the fact that Louie had shown signs of brain swelling when admitted. Al-Bayati acknowledged the mistake, but he stood by his conclusion that Louie died as a result of an infection.
The State called Mitchell to the stand as a rebuttal witness. When asked what he disagreed with regarding Al-Bayati’s conclu sions, Mitchell stated, “It’s actually hard to start because it was an incredible mix of fact and misinterpretation.” Mitchell described Al-Bayati’s discussion regarding the fluctuation in Louie’s height as “hogwash.” The district judge then interrupted Mitchell and instructed counsel to approach the bench; the judge told counsel that he was not going to allow Mitchell to “just tak[e] shots” at Al-Bayati. Mitchell’s subsequent testimony focused on his disagreement with Al-Bayati’s analysis.
Defense counsel did not object to the district judge’s proposed jury instructions or request any lesser included offense instructions. The jury’s child abuse instruction was modeled on PIK Crim. 3d 58.11 and required proof “1. That the defendant intentionally shook a child to-wit: Louie Rodriguez, which resulted in great bod-fly harm to said child; 2. That said child was under the age of 18 years.” Rodriguez’ jury also was instructed that “[gjreat bodily harm means something more than slight, trivial, minor or moderate bodily harm and does not include mere bruises.”
During deliberations, the jury sent a question to the judge about whether it could arrive at a verdict on a lesser charge. The prosecutor suggested that the judge respond that “in this case there are no lesser offenses.” Defense counsel agreed, saying the instructions “should be all or nothing.” The district court then informed the jury that there were no lesser charges.
After the juiy reached its guilty verdict, Rodriguez filed a motion for new trial. He argued that there was insufficient evidence to convict him and that Mitchell’s rebuttal testimony expressed an improper opinion on the credibility of another witness. The district judge rejected the motion, characterizing the evidence in support of guilt as “substantial.” The judge agreed that Mitchell’s reference to “hogwash” was inappropriate, but the judge did not believe the reference changed the outcome of the case.
Discussion
Lesser Included Offense Instructions
Rodriguez’ first claim of error focuses on the district judge’s omission of juiy instructions on reckless homicides, both second-degree murder and involuntary manslaughter.
Lesser included offense instructions are governed by K.S.A. 22-3414(3):
“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107, and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.” K.S.A. 22-3414(3).
In other words, lesser included offense instructions must be given when there is some evidence, emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime. State v. Simmons, 295 Kan. 171, Syl. ¶ 3, 283 P.3d 212 (2012); see State v. Williams, 295 Kan. 506, 286 P.3d 195, 205 (2012) (“[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge.”)- “The court’s duty to instruct on lesser included crimes is not foreclosed or excused just because the lesser included crime may be inconsistent with the defendant’s theory of defense.” Simmons, 283 P.3d 212, Syl. ¶ 3. To determine whether a lesser included offense instruction should have been given, this court views the evidence in a light most favorable to the defendant. State v. Tahah, 293 Kan. 267, 273, 262 P.3d 1045 (2011). These standards apply to first-degree felony murder in the same way that they apply to other crimes. State v. Berry, 292 Kan. 493, 513, 254 P.3d 1276 (2011) (disapproving judicially created exception for felony-murder prosecutions).
Rodriguez did not request any lesser included offense instructions at trial. We recently outlined the analytical framework for jury instruction issues that arise for the first time on appeal:
“K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district couit’s giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and die grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.”
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” Williams, 286 P.3d 195, Syl. ¶¶ 3-5.
Under this framework, there is no error, much less clear error, unless the full record before us establishes that the omitted instructions on recldess homicides would have been legally and factually appropriate.
The instructions were legally appropriate because second-degree murder and involuntary manslaughter are lesser included offenses of first-degree murder. See State v. Engelhart, 280 Kan. 113, 135, 119 P.3d 1148 (2005); PIK Crim. 3d 69.01. Unintentional second-degree murder is a killing committed recklessly under circumstances manifesting extreme indifference to the value of human life. K.S.A. 21-3402. Involuntary manslaughter differs from second-degree murder only in the degree of recklessness required to prove culpability. K.S.A. 21-3404. In a first-degree murder case, lesser included offense instructions for second-degree murder or involuntary manslaughter must be given to the jury if there is some evidence that would reasonably justify a conviction for either charge. K.S.A. 22-3414(3).
But the instructions about which Rodriguez complains were not factually appropriate in this case. The State sponsored plentiful evidence that Louie was in his father s sole care at the time he suffered his ultimately fatal injuries. The three physicians who examined Louie were united in their opinions that those injuries were intentionally inflicted. The pathologist who performed Louie’s autopsy also agreed with this assessment. There was no conflicting evidence supporting recldessness from either side or even from Rodriguez’ pretrial statements to Louie’s health care providers or law enforcement. At trial, Rodriguez relied on his expert for tes timony supporting the nonexistence of any criminal intent. In Al-Bayati’s view, whooping cough was to blame for Louie’s death.
We recognize that we have required lesser included offense instructions even when they are inconsistent with the theory of defense. See Simmons, 283 P.3d at 216-17 (simple batteiy instruction should have been given in aggravated batteiy case; juiy should decide how to classify evidence on manner in which defendant inflicted bodily harm, despite “I-did-not-hit-her” trial defense); Ta-halí, 293 Kan. at 273 (second-degree murder, involuntary manslaughter instructions should have been given in felony-murder case; defendant’s written and videotaped confessions admitted into evidence inconsistent with defendant’s story at trial). But the trial record in these earlier cases contained evidence to support the lesser included instructions at issue.
We have no such evidence before us here, only appellate defense counsel’s speculation that the jury could have opted to believe Rodriguez did something to Louie and that it qualified for the label of “reckless” rather than “intentional.” The jury’s question supports an inference that at least some of its members would have liked to have a compromise verdict available in this tragic case. But such a compromise would not have been supported by sufficient evidence; indeed, it would not have been supported by any evidence. The evidence was not that Louie’s injuries were simply the result of trauma, perhaps recklessly inflicted, but rather that the injuries were the result of intentionally inflicted trauma. “The extent of the injury did not permit a reasonable conclusion that the injuries] occurred accidentally.” State v. Heath, 264 Kan. 557, 573, 957 P.2d 449 (1998). In short, the only evidence before the jury excluded the lesser included offenses. See Gaona, 293 Kan. at 951; Simmons, 282 Kan. at 743.
Because the lesser included offense instructions on reckless homicide that Rodriquez raises on appeal would not have been factually appropriate at trial, there is no error.
Instruction on Child Abuse
Rodriguez also challenges the jury instruction on child abuse. Because he did not object to the wording of the instruction at trial, our analysis is the same as that outlined for K.S.A. 22-3414(3) in our discussion of the previous issue.
Under K.S.A. 21-3609, child abuse is defined as “intentionally torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.”
The district judge’s instruction closely followed the statutory definition and was drawn directly from PIK Crim. 3d 58.11. The jury also was told that “[g]reat bodily harm means something more than slight, trivial, minor or moderate bodily harm and does not include mere bruises.”
Rodriguez argues that the instruction on child abuse nevertheless violated his right to a fair trial because it did not require the jury to find every fact necessary to establish the crime of child abuse beyond a reasonable doubt. Specifically, Rodriguez argues that the instruction deprived the jury of the opportunity to make a factual finding that great bodily harm resulted from shaking. Instead, according to Rodriguez, the district court instructed the jury that shaking a child automatically results in great bodily harm. Rodriguez suggests that the instruction should have read:
“1. That the defendant intentionally shook a child to-wit: Louie Rodriguez
“2. That shaking resulted in great bodily harm to said child;
“3. That said child was under the age of 18 years.”
“Ordinarily, whether a victim has suffered great bodily harm is a question of fact for the juiy to decide.” Williams, 286 P.3d 195, Syl. ¶ 7. A district judge invades the province of the jury “when, instead of simply instructing the juiy on the law, he applies the law to the facts he has determined.” State v. Brice, 276 Kan. 758, 770, 80 P.3d 1113 (2003). “This is tantamount to a directed verdict for the prosecution, a result that is condemned by the Constitution.” 276 Kan. at 770.
Rodriguez relies exclusively on our 2003 State v. Brice decision to support his argument. In Brice, defendant Derek Brice was convicted of aggravated battery. Brice appealed, arguing that the jury instructions invaded the province of the jury. The instruction at issue stated: “ ‘As used in these instructions, ihe term Great Bodily Harm means, a “through and through bullet wound.” ’ ” 276 Kan. at 762. Essentially, the district court instructed the jury that a “through and through” bullet wound constituted great bodily harm as a matter of law, 276 Kan. at 764, and this court explained that such an instruction invaded the province of the juiy as factfinder by instructing that the State’s evidence established an essential element of the charge, 276 Kan. 772.
The instruction in Brice is not analogous to the instruction Rodriguez challenges here. The child abuse instruction did not make shaking and great bodily harm synonymous, and it correctly informed the members of the jury that they had to find a causal relationship between the shaking and tire great bodily harm. Moreover, Rodriquez’ suggested reformulation of the instruction would have told his jury nothing new, different, or more clear. There was no error in the child abuse instruction as given.
Admission of Gruesome Photographs
Rodriguez also argues on this appeal that the autopsy photos were unduly graphic and cumulative.
“The standard of review for the admission of photographic evidence requires the appellate court to first determine whether the photos are relevant. If a party argued that the photographs are overly repetitious, gruesome, or inflammatory, that is to say, prejudicial, the standard of review is abuse of discretion.” Riojas, 288 Kan. at 387.
This court also reviews a question of whether evidence is cumulative for an abuse of discretion. State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 (2011).
“ ‘Judicial discretion is abused if judicial action (1) is arbitraiy, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.’ ” State v. Robinson, 293 Kan. 1002, 1027-28, 270 P.3d 1183 (2012) (quoting State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011]).
The burden of showing an abuse of discretion rests with the party asserting the error. State v. Burnett, 293 Kan. 840, 853, 270 P.3d 1115 (2012).
Photographic evidence, like other evidence offered at trial, is relevant and generally admissible if the photographs have a reasonable tendency to prove a material fact in the case. State v. Miller, 284 Kan. 682, 698, 163 P.3d 267 (2007). Although they may sometimes be gruesome, autopsy photographs that assist a pathologist in explaining the cause of death are relevant and admissible. Riojas, 288 Kan. at 387; State v. Decker, 288 Kan. 306, 309, 202 P.3d 669 (2009); State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 (2004). However, admitting gruesome photographs simply to “ ‘inflame the minds of the members of the jury’ ” is error. Riojas, 288 Kan. at 387 (quoting State v. Royd, 216 Kan. 373, 377, 532 P.2d 1064 [1975]). We have also often said that admission of unduly repetitious photographs can constitute an abuse of discretion. State v. Hill, 290 Kan. 339, 362, 228 P.3d 1027 (2010). The key, as with prejudice, is die word unduly. Cf. State v. Clark, 261 Kan 460, 478, 931 P.2d 664 (1997) (prejudice expected; only undue prejudice reversible). The admission of photographs in a murder case has rarely been held to be an abuse of discretion. State v. Sappington, 285 Kan. 176, 195, 169 P.3d 1107 (2007).
Here the photographs were undeniably gruesome. The four images depicted a 5-month-old baby at different stages of an autopsy. Three showed Louie’s scalp pulled back, exposing his skull. In one, Louie’s skull had been removed in order to show his brain and coagulated blood. In each of the photographs, Louie’s skin and hairline were visible.
But all four photographs assisted Mitchell in explaining the factors he relied upon in reaching his conclusions on the nature of the trauma Louie suffered and on the cause of his death. Because there was no external bruising, the true extent of the injuries was not apparent until revealed by the autopsy, and the photographs visually memorialized Mitchell’s internal physical findings, including separation of the bone plates, bleeding, and swelling of the brain. Under these circumstances, the photographs, although gruesome, were probative and not unduly prejudicial.
Rodriguez’ second argument that the photographs were cumulative is based on his belief that it was error to permit Mitchell to testily about Louie’s injuries and then, in effect, repeat his testi mony by pointing to the images. “Cumulative evidence is evidence of the same land to the same point, and whether it is cumulative is to be determined from its kind and character, rather than its effect.” State v. Hickles, 261 Kan. 74, 88, 929 P.2d 141 (1996).
Rodriguez relies on an unpublished decision from our Court of Appeals, State v. Glassburn-Hoesli, No. 89, 441, 2004 WL 48175 (Kan. App. 2004), for the proposition that evidence with little relevance beyond that of other evidence already heard by a jury should be excluded as cumulative. We have previously read Glass-bum-Hoesli somewhat differently:
“Contrary to the defendant’s argument, the court in Glassburn-Hoesli merely affirmed a court’s discretion to exclude additional evidence; it did not hold that the court was required to do so. This reasoning is fully in keeping with our previous decisions, which have found that although ‘[tjhere are instances when tire trial court may in the exercise of its discretion refuse to admit testimony which is cumulative,’ cumulative evidence is not itself objectionable. [Citation omitted.]” Miller, 284 Kan. at 699.
The four photographs Rodriguez questions depicted Louie’s internal injuries in a way that Mitchell’s mere words could not. In this way, they had additional relevance. In addition, they were not repetitious of each other, because each was taken from a different angle. See State v. Altum, 262 Kan. 733, 744, 941 P.2d 1348 (1997) (“All five autopsy photographs show the child’s head, but there are three distinctly different depictions .... Because there is probative value in each view, there is no undue repetition.”). We thus do not regard the photographs as cumulative and see no abuse of discretion in their admission.
Motion for New Trial
Finally, Rodriguez argues that Mitchell’s “hogwash” comment on rebuttal expressed an improper opinion on tire credibility of another witness, Al-Bayati, and that the district judge erred when he did not grant a new trial on this basis. Rodriguez no longer pursues the sufficiency claim he advanced in the district court.
This court reviews a district judge’s decision on a motion for new trial for abuse of discretion. State v. Rojas-Marceleno, 295 Kan. 525, 285 P.3d 361, 372-73 (2012).
“A witness may not express an opinion on the credibility of another witness.” State v. Albright, 283 Kan. 418, 430, 153 P.3d 497 (2007). The determination of the truthfulness of any witness is for the jury. 283 Kan. at 430-31; State v. Kuykendall, 264 Kan. 647, 651, 957 P.2d 1112 (1998) (“It is the function of the juiy in a criminal case to determine the weight and credit to be given the testimony of each witness, whether expert or lay in nature.”). It is also improper for a witness to offer an opinion as to the defendant’s guilt. See State v. Steadman, 253 Kan. 297, 304, 855 P.3d 919 (1993) (police officers testimony on opinion about defendant’s guilt warranted new trial).
As the State concedes, Mitchell’s barnyard description of Al-Bayati’s opinion on cause of death based on Louie’s fluctuating height measurements was improper because it was a statement about the credibility of another witness. But Rodriguez is incorrect that Mitchell’s comment also constituted an opinion on Rodriguez’ guilt. Neither the statement nor its context supports this further argument. Mitchell was critiquing Al-Bayati’s methodology and conclusion, which is the fair province of a competing expert. Mitchell was not offering an opinion on guilt or innocence.
Did the “hogwash” error demand the cure of a new trial? It did not. The comment was isolated and limited in scope; the district judge immediately reacted, ensuring no repeat of the problem; Mitchell confined his subsequent testimony to appropriate subjects; and the juiy was able to make its own credibility determination, no doubt based in part on the demonstrated error in Al-Bayati’s review of Louie’s condition. Under these circumstances, no new trial was required in the interests of justice under K.S.A. 22-3501, and the district judge did not abuse his discretion in denying Rodriguez’ motion.
Conclusion
Defendant Jaime Rodriguez has not demonstrated the existence of any error requiring reversal of his felony-murder conviction. The judgment of the district court is therefore affirmed. | [
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The opinion of the court was delivered by
Johnson, J.:
Keshia Denise Williams was convicted of aggravated battery for stabbing her long-time friend, Sandra Kelly, multiple times in the head with a steak knife during an altercation inside of Williams’ home. On appeal, Williams claimed, inter alia, that the trial court should have given certain instructions even though Williams did not request them. We granted review of the instruction issues, in which Williams claims the district court should have, sua sponte, given the following instructions: PIK Crim. 3d 54.17-A on no duty to retreat; PIK Crim. 3d 54.18 on use of force in defense of a dwelling; and a lesser included offense instruction on severity level 7 aggravated battery. We find that the failure to give the instructions was not clearly erroneous and therefore the defendant is not entitled to obtain relief on appeal. We affirm the Court of Appeals’ affirmance of the district court.
Factual and Procedural overview
On April 26, 2008, Kelly and her boyfriend, Steve Jones, had been staying with Williams for 3 days. That night, Cynthia Edwards and Donald Ray McWilliams were also present in Williams’ house. The conflict between Williams and Kelly began when Williams, while seated at the kitchen table, told Jones that he and Kelly, who was then in the bedroom, would have to leave her house. Jones relayed comments between the two women to and from the kitchen and bedroom until Kelly entered the kitchen to directly engage in a verbal altercation with Williams.
Kelly repeatedly challenged Williams to “take it outside.” Initially, Williams tried to defuse the situation, but eventually she agreed to go outside. When Kelly went to the bedroom to put on her tennis shoes, Williams feared that Kelly had obtained a weapon. Accordingly, at some point after Williams got up from the kitchen table to follow Kelly outside, she picked up a knife. The two only made it to the door before tire physical fighting began. According to Edwards, Kelly started that altercation by “throwing blows” and pulling two braids out of Williams’ hair. Williams responded by stabbing Kelly in the head.
The fight stopped when Kelly realized blood was coming down her face. McWilliams then took the knife from Williams, and Edwards threw it into some trees. Police subsequently recovered a knife north of Williams’ house, near some trees. But evidence was not produced at trial that definitively established that the found knife was the one used to stab Kelly.
Williams grabbed a towel and wrapped it around Kelly’s head. She then called 911 and reported that she had stabbed Kelly, albeit she would later tell police that she believed that she had acted in self-defense.
Jones and another person took Kelly to the hospital, where she received “about a hundred stitches.” Kelly would later say that she had not felt much, if any, pain; that the only subsequent medical attention she required was to have the stitches removed; and that her wounds healed in a couple of months.
The police interviewed Kelly at the hospital. She initially told them that she had fallen and cut her head on a piece of glass. After the officers threatened to “get [her] for making a false statement,” Kelly related that she had been cut while fighting with Williams.
Eventually, Williams was charged with and tried on one count of severity level 4 aggravated battery, K.S.A. 21-3414(a)(l)(A). Williams moved for a judgment of acquittal at the close of the State’s evidence. The trial court denied the motion, finding that, although there was no evidence connecting the knife the police had found with Kelly’s stabbing injuries, there was evidence from which a jury could find that Kelly suffered great bodily harm. In the process of explaining that ruling, the court opined that “a hundred stitches is more than slight, trivial, minor or moderate harm.”
During trial, the prosecutor cross-examined Williams about the fact that she did not try to run from Kelly and hide or “do anything to get away from her.” In closing argument, the prosecutor'returned briefly to the theme that Williams did not try to get away from Kelly.
The trial judge gave the jury a general self-defense instruction, but Williams was nevertheless found guilty of the level 4 aggravated battery charge. Upon appeal to the Court of Appeals, a split panel affirmed the conviction. The dissent opined that the trial court should have given a no duty to retreat instruction and a lesser included offense instruction on severity level 7 aggravated battery, notwithstanding the absence of any request for those instructions. See State v. Williams, No. 102,615, 2010 WL 4156759, at *9-13 (Kan. App. 2010) (unpublished opinion) (Leben, J., dissenting). The majority accepted the State’s explanation that it proffered Williams’ failure to run and hide as proof that she was not afraid of Kelly and, therefore, resorting to a deadly weapon was unjustified under the subjective prong of self-defense.
As noted, we granted review on the three issues involving unrequested instructions.
Standard of Review and the Clearly Erroneous Standard
Currently, when an instruction issue is being raised for the first time on appeal or has not been properly preserved with an appropriate objection in the trial court, we generally refer to K.S.A. 22-3414(3) and recite simply that “the standard of review is whether the instruction is clearly erroneous.” State v. Adams, 294 Kan. 171, 183, 273 P.3d 718 (2012); see State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011); State v. Magallanez, 290 Kan. 906, 925, 235 P.3d 460 (2010); State v. Ellmaker, 289 Kan. 1132, 1145, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010). Often then, while still discussing the standard of review, we will explain diat “ ‘[jjuiy instructions are clearly erroneous only if the reviewing court is firmly convinced that the jury would have reached a different verdict had the error not occurred.’ State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011).” Adams, 294 Kan. at 183.
That shorthand has tended to blur the distinction between what is to be decided on appeal and how the appellate decision is to be made. The “what” that must be decided on appeal typically follows a three-step process: (1) determining whether the appellate court can or should review the issue, i.e., whether diere is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless. How those decisions are made is driven by the applicable standard of review, which “focuses on the deference due a lower court, jury, or agency.” 1 Childress & Davis, Federal Standards of Review § 1.03, p.1-17 (3d ed. 1999). In other words, the standard of review establishes die “framework by which a reviewing court determines whether the trial court erred.” Hall, Hall’s Standards of Review in Texas, 42 St. Mary’s L.J. 3, 13 (2010).
In that vein, our defining clearly erroneous in terms of the likelihood of a different juiy verdict is more akin to stating a harmless error test than a standard of review, because it “assumes that an error has occurred; it does not guide tire appellate court in determining whether an error has occurred or how much deference to give to a lower court decision.” Hodgkinson, Clear as Mud? “Clearly Erroneous” as a Standard of Review for Instructional Claims, Kansas Bar Association Appellate Practice Newsletter, at p. 2 (Spring 2012). Accordingly, we will pause to take a critical look at how we have historically handled unpreserved appellate challenges to jury instructions with a view to establishing a more precise analytical framework and more accurate standards of review.
Because we frequently cite to K.S.A. 22-3414(3) as the source of our standard of review, we look first to that statute. It provides, in relevant part:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime 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 or the failure to give an instruction is clearly erroneous.” K.S.A. 22-3414(3).
Plainly, the statute sets forth the statutoiy preservation requirement that the complaining party must have objected prior to jury deliberations in order to get an appellate review of a claimed instruction error. A preservation rule for instruction claims, requiring an objection in the trial court, was part of this State’s jurisprudence prior to the statute. For instance, in 1943, we declared that “the general rule is that where no objection is made to the giving of an instruction during the trial and no request was made for its modification or clarification and such instruction is not clearly erroneous a litigant cannot be heard to complain on appeal.” Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 287, 139 P.2d 859 (1943); see also Collett v. Estate of Schnell, 194 Kan. 75, 79, 397 P.2d 402 (1964) (following rule from Sams); Montague v. Burgerhoff, 152 Kan. 124, 128-29, 102 P.2d 1031 (1940) (stating that when no objection is made to any of the jury instructions, instructions become law of the case); Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 724, 85 P.2d 28 (1938) (“No objection was made thereto at the time of tire trial and a complaint at this time is too late.”); Jones v. A., T. & S.F. Rly. Co., 148 Kan. 686, 695, 85 P.2d 15 (1938) (stating that instruction became law of the case and jury’s findings must control appeal because appellant “made no complaint of it”); Lambert v. Rhea, 134 Kan. 10, 14-15, 4 P.2d 419 (1931) (stating that absent an objection, jury instruction complaints are unavailing in the Supreme Court where instructions correctly stated the law).
Just as plainly, K.S.A. 22-3414(3) includes an exception to the preservation requirement where the instruction or failure to give an instruction was “clearly erroneous.” That exception also predated the statute. In Sams, we “conceded [that] the [preservation] rule does not apply to an instruction which is in itself erroneous and an appellant is not estopped from complaining of it as error by not having objected to it at the time it was given.” Sams, 157 Kan. at 288; see also Collett, 194 Kan. at 79 (“This court adheres to the rule that where the instructions or directions of the trial court are in themselves erroneous, an appellant is not estopped of complaining of them as error by not having objected at the time they were given.”); Richardson v. Business Mens Protective Ass’n., 129 Kan. 700, Syl. ¶ 2, 284 P. 599 (1930) (stating that when an instruction includes statements of law which are “clearly erroneous,” it is not necessaiy, in order for party to predicate error upon the giving of the instruction, to make an objection). The rule was applied in criminal cases, as well. See State v. Ragland, 173 Kan. 265, 269, 246 P.2d 276 (1952) (“it is not necessary in order to predicate error thereon, that a defendant in a criminal action object to the giving of an instruction to the jury, if the instruction is clearly erroneous”).
What the statute does not specifically tell us is the meaning of “clearly erroneous.” Likewise, it does not indicate that the district court is to be afforded any deference when the instruction or failure to give the instruction is clearly erroneous. Over time, this court’s description and application of “clearly erroneous” has been fluid. In the earlier cases, the term related to die content of the instruction, with the inquiry being whether the instruction at issue on appeal correctly stated the law. The focus was on the patent bona fides of the instruction, rather than the degree of error or prejudice caused by any error. See, e.g., Lambert, 134 Kan. 10, Syl. ¶ 4; Richardson, 129 Kan. 700, Syl. ¶ 2; Foley v. Crawford, 125 Kan. 252, Syl. ¶ 10, 264 P. 59 (1928).
State v. Severns, 158 Kan. 453, 456, 148 P.2d 488 (1944), nicely illustrates those early cases that equated “clearly erroneous” with legally invalid. There, the defendant argued for the first time on appeal that the murder instruction misstated the law by indicating that murder at common law included the unlawful killing of a human being committed in the perpetration of a misdemeanor. The Secerns court first noted that the appellant had not objected at trial, but then related that such an objection is “not necessary, in order to predicate error, if the instruction is clearly erroneous.” 158 Kan. at 456 (citing Richardson, 129 Kan. 700, Syl. ¶ 2). The court then held, as a matter of law, that the statutory definition of murder did not include a killing “in perpetration of a misdemeanor,” i.e., the instruction was clearly erroneous. 158 Kan. at 457. The court went on to reverse without engaging in a separate harmless error analysis, concluding summarily that “[t]he instruction as given was erroneous and prejudicial.” 158 Kan. at 458. It appears that clearly erroneous instructions were generally treated as being presumptively prejudicial and, thus, reversible.
In 1970, tire legislature enacted K.S.A. 22-3414(3), in the Code of Criminal Procedure, which closely followed the provision regarding waiver of jury instructions found at K.S.A. 60-251(b) in the Code of Civil Procedure. Both required a party to make a proper objection to the giving or failure to give an instruction before the jury retired to consider its verdict, in order to preserve an appellate claim, unless the instruction was clearly erroneous. L. 1970, ch. 129, sec. 22-3414; L. 1963, ch. 303, sec. 60-251. For a time, our appellate courts appeared to continue to equate “clearly erroneous” with legal validity. See State v. Humbolt, 1 Kan. App. 2d 137, Syl. ¶ 4, 562 P.2d 123 (1977) (instruction “not ‘clearly erroneous’ where it correctly states the law and does not mislead the jury”).
But later, the focus of the “clearly erroneous” analysis changed from a determination of whether the instruction was patently erroneous to a determination of whether the instruction was clearly prejudicial. Perhaps the first case to make that shift was State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977), which declared:
“It is to be noted that none of the objections to instructions now raised were presented to the trial court; therefore, our scope of review is limited to a determination of whether the instructions are ‘clearly erroneous.’ (K.S.A. 22-3414[3]; State v. Birch, 221 Kan. 122, 558 P.2d 119 [1976]; State v. Nesmith, 220 Kan. 146, 551 P.2d 896 [1976]; State v. Suing, 210 Kan. 363, 502 P.2d 718 [1972].) 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 the jury would have returned a different verdict.” (Emphasis added.)
Stafford did not cite to a source for its new definition of “clearly erroneous.” Certainly, there is nothing in the statutory language which would naturally lead one to the conclusion that “clearly erroneous” was meant to be determined by a reversibility standard, i.e., by the errors perceived effect on the trial outcome. In fact, one might find it counterintuitive to make the reviewability of an issue hinge entirely upon its reversibility.
Further, Stafford did not explain or acknowledge that it was changing the K.S.A. 22-3414(3) clearly erroneous exception from a certainty-of-error concept to a certainty-of-prejudice concept. In fact, the opinion seems to rely more on the legal validity of the challenged instructions than their impact on the verdict. Nevertheless, subsequent cases picked up Stafford’s definition of clearly erroneous. See State v. Houck, 240 Kan. 130, 139, 727 P.2d 460 (1986) (citing Maxwell and Stafford); State v. Maxwell, 234 Kan. 393, 399, 672 P.2d 590 (1983) (citing Stafford). Eventually, the Stafford version of the meaning of “clearly erroneous” would achieve the status of “well known.” See Ellmaker, 289 Kan. at 1139.
Additionally, after Stafford, in 1985, this court clearly and unequivocally assigned the “standard of review” label to the term “clearly erroneous.” State v. Peck, 237 Kan. 756, 764, 703 P.2d 781 (1985), declared:
“This ‘clearly erroneous’ standard is the correct standard of appellate review since appellant gave no basis for his objection to the instruction at trial. We have held a party may not assign as error tire giving or failure to give an instruction unless he objects to tire instruction stating the specific grounds for the objection. Absent such specificity an appellate court may reverse only if the instruction is clearly erroneous. State v. Korbel, 231 Kan. 657, Syl. ¶ 4, 647 P.2d 1301 (1982).”
Again, the origin of the statement designating clearly erroneous as the correct standard of appellate review is unexplained. Peck’s citation to Korbel only refers to syllabus ¶ 4, where that opinion simply repeated tire statutory language of K.S.A. 22-3414(3). State v. Korbel, 231 Kan. 657, 647 P.2d 1301 (1982), did not recite any standard of review on the applicable instruction issue in that case, much less call “clearly erroneous” the “correct standard of appellate review.” But again, subsequent cases fell into step with Peck, consistently referring to “clearly erroneous” as a “standard of review.” See, e.g., State v. Kelly, 262 Kan. 755, 764, 942 P.2d 579 (1997); State v. Hunt, 257 Kan. 388, 394-95, 894 P.2d 178 (1995); State v. Crawford, 253 Kan. 629, Syl. ¶ 1, 861 P.2d 791 (1993); State v. Perez, 251 Kan. 736, 737, 840 P.2d 1118 (1992).
Obviously, designating “clearly erroneous” as a standard of review fails to impart the normal information about how the appellate court intends to go about its review. For instance, will the court conduct an unlimited review of the appellate record or look for an abuse of discretion by the trial judge? Likewise, declaring that jury instructions are clearly erroneous only if we are firmly convinced that the jury would have reached a different verdict had the error not occurred does not reveal the process to be used to determine whether there was any error at all.
But before we can more accurately describe the standard of review, we need to clarify just what the court must decide when presented with a claim of error for giving or failing to give an instruction that was not requested. As we noted earlier, the first step in the appellate process is normally a reviewability inquiiy. Obviously, K.S.A. 22-3414(3) directly impacts that detennination. Although it purports to withhold appellate jurisdiction in the absence of a proper objection, the statute’s exception effectively conveys such jurisdiction and preserves for appellate review any claim drat the instruction error was clearly erroneous.
Moreover, to determine whether it was clearly erroneous to give or fail to give an instruction, the reviewing court would necessarily have to first determine whether it was erroneous. In other words, to determine whether the claim of error is properly renewable, the court must first determine whether there is an error, i.e., perform the merits review in the second step of the normal appellate process. That review for error necessarily presents a legal question subject to unlimited review.
Only after determining that the district court erred in giving or failing to give a particular instruction would the reviewing court engage in the reversibility inquiry. Given that it has been utilized for decades, the current definition of clearly erroneous sets up the test to determine whether the instruction error requires reversal, i.e., whether tire reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment of whether there has been injustice would involve a review of the entire record and a de novo determination. Cf. State v. Ward, 292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis performed de novo), cert. denied 132 S. Ct. 1594 (2012).
Before moving on, we pause to note that the burden of establishing reversibility differs in this context from the harmless error analyses discussed in Ward. Whereas the burden to show harmlessness generally shifts to the party benefitted by the error, the burden to show clear error under K.S.A. 22-3414(3) remains on the defendant. Cf. United States v. Vonn, 535 U.S. 55, 58-59, 122 S. Ct. 1043, 152 L. Ed. 2d 90 (2002) (a silent, nonobjecting defendant has burden to satisfy plain error rule in context of Federal Rule of Criminal Procedure 11).
No Duty to Retreat Instruction
Williams’ first complaint is that the trial judge, on his own, did not give the jury the no duty to retreat instruction from PIK Crim. 3d 54.17-A (2007 Supp.). That instruction tracked the statutory provision at K.S.A. 21-3218 and provided:
“A person who is not engaged in an unlawful activity and who is attacked in a place where (he)(she) has a right to be has no duty to retreat. (He)(She) has the right to stand (his)(her) ground and to meet force with force.” PIK Crim. 3d 54.17-A (2007 Supp.).
Citing to Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), Williams first casts the issue in terms of her fundamental right to present a full and complete de fense. But nothing precluded the defense from making the concept of no duty to retreat a part of its theory of defense by requesting the instruction. Requesting an instruction signals the trial judge that its contents are part of the defense theory. Certainly, a defendant does not have a constitutional right to have the trial judge develop the defense theory.
Moreover, characterizing the issue as a constitutional claim does not significantly advance Williams’ procedural posture. Even constitutional grounds for reversal are not properly before the appellate court for review if they are being asserted for the first time on appeal. See State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007).
Accordingly, Williams can pass the first step of establishing that the issue is properly reviewable by this court only if the failure to give a no duty to retreat instruction was clearly erroneous per K.S.A. 22-3414(3). As noted, to get to that determination, we must first consider whether it was error at all to omit the instruction.
Williams relies heavily on our decision in State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988). There, the victim and the defendant had an altercation while in separate vehicles on public roads. After the defendant returned to and parked in the driveway of his parent’s home, the victim, who had followed the defendant home, charged at the defendant. The defendant shot and killed the victim. We reversed the defendant’s involuntary manslaughter conviction based upon the trial court’s refusal to give the no duty to retreat instruction as a supplement to the general self-defense instruction. 242 Kan. at 429. The Scobee decision was heavily influenced by the State’s trial strategy of emphasizing that the defendant had failed to retreat, specifically arguing that he could have driven to a police station or simply remained in his car and honked the horn.
Williams suggests that this case is so factually similar to Scobee as to require the same result. Granted, the prosecution here used the same tactic of pointing out to the juiy that the defendant had not reacted to the victim’s aggression by retreating. Unlike the Court of Appeals majority, we do not find the State’s explanation of the purpose for that strategy to be reasonably persuasive. The specific statement during closing was: “She claims self-defense. She never tried to get away. She never tried to hide.” The patently obvious inference to be drawn from that argument is that for a defendant to legitimately claim self-defense, he or she must have first tried to get away or tried to hide. A no duty to retreat instruction would have dispelled the State’s implication that diere was a duty to retreat.
But the differences in Scobee are more compelling than the similarities. First and foremost, Scobee involved a different procedural posture; Scobee requested that the trial judge give the no duty to retreat instruction. That distinction is a game changer. If Williams had requested the instruction here, it is possible tíiat we would have found it to have been a legally and factually appropriate instruction that was supported by some evidence, i.e., found that the district court had erred in refusing to give the requested instruction. See State v. Plummer, 295 Kan. 156, 162, 283 P.3d 202 (2012) (the district court errs if it refuses to give a requested instruction that is legally appropriate and factually supported by some evidence). In that event, we would have been looking at whether the State had carried its burden to establish harmless error, i.e., “if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.” Ward, 292 Kan. at 569. Instead, the defendant, who must assume at least some of the responsibility for the omitted instruction by failing to request it, bears the burden of firmly convincing us that the jury would have reached a different verdict had the error not occurred. For the reasons discussed below, Williams did not clear that high hurdle.
Factually, this case is more akin to what occurred in State v. Saleem, 267 Kan. 100, 977 P.2d 921 (1999). There, the defendant and the victim started an argument inside the defendant’s sister’s house and then agreed to step outside to settle their differences. Once outside, a shoring match ensued, albeit the evidence was conflicting as to which person was the aggressor in the shoring match. After the shoring caused the defendant to fall to the ground, he pulled a weapon and fatally shot the victim, firing four shots in the process. This court found that a no duty to retreat instruction was not required in that scenario. 267 Kan. at 113-15.
In reaching its decision, Saleem analyzed both Scobee and State v. Ricks, 257 Kan. 435, 437, 894 P.2d 191 (1995), but found Ricks to be more applicable. Ricks involved a confrontation in a public parking lot. The Ricks opinion limited Scobee1s holding to the "infrequent factual situations ... with such elements as a nonaggressor defendant being followed to and menaced on home ground.” Ricks, 257 Kan. at 437.
In this case, Williams agreed to go outside with Kelly to settle their argument. She must have thought that a physical altercation was likely, because she armed herself enroute. In essence, the evidence would support a reasonable inference that Williams agreed to engage in mutual combat with Kelly and took a knife to a fistfight. Granted, the testimony was that Kelly threw the first punch. But it seems strained to say that a person who has agreed to fight another is nevertheless a “nonaggressor” because the other combatant beat that person to the first punch. Moreover, Williams aggressively responded to the commencement of the fight by stabbing Kelly repeatedly in the head.
Except for the fact that the trial court instructed the jury on self-defense, it is questionable whether a no duty to retreat instruction was factually appropriate in this case. Nevertheless, even if we were to find that omitting the instruction was erroneous, Williams has failed to establish the requisite level of prejudice. At the time Kelly threw the first punch, Williams had agreed to “take it outside” and had armed herself with a deadly weapon. The jury heard and rejected the general self-defense instruction. Even Scobee said that ordinarily the general self-defense instruction, then contained in PIK Crim. 2d 54.17, would be sufficient. 242 Kan. at 428. Accordingly, we are not firmly convinced that the instruction would have made a difference in the jury verdict.
Use of Force in Defense of Dwelling Instruction
Next, Williams contends that the trial judge should have given the defense of dwelling instruction, set forth in PIK Crim. 3d 54.18 (2007 Supp.), which provides:
“Defendant claims (his)(her) conduct was permitted as a lawful defense of [(his)(her)] (dwelling) (occupied vehicle).
“Defendant is permitted to use force to the extent that it appears to (him)(her) and (he)(she) reasonably believes that such force is necessary to prevent another person from unlawfully (entering into) (remaining in) (damaging) [(his)(her)] (dwelling) (occupied vehicle). Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief.
“[Defendant is permitted to use deadly force to prevent another person from unlawfully (entering into) (remaining in) (damaging) [(his)(her)] (dwelling) (occupied vehicle) only when (he)(she) reasonably believes deadly force is necessary to prevent death or great bodily harm to (himself)(herself) (someone else). Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief.]
“When use of force is permitted as a lawful defense of [(bis)(her)] (dwelling) (occupied vehicle), there is no requirement to retreat.”
Again, Williams did not request the instruction, so our review is precluded unless the failure to give the instruction was clearly erroneous. Williams is so far from reaching that standard that we will make short work of this issue.
Simply put, Williams’ dwelling was not under attack. Her argument is that because she had told Jones that he and Kelly could no longer stay at her house, Kelly’s status transformed from a houseguest to a trespasser. Therefore, the argument continues, Williams could use force to prevent Kelly from remaining in the dwelling. If Williams wanted to be creative in crafting an argument that would have justified the giving of the defense of dwelling instruction, she should have done so in the district court. We will certainly not require trial judges to divine unique defense theories, especially where such theories are not revealed by the evidence.
Williams testified that she tried to defuse the argument by asking Kelly to sit down at the kitchen table to talk. One who has been invited to sit at the kitchen table is really not a trespasser, even if that person’s status as a houseguest has been terminated. Moreover, when the two were at the front door, it was for the purpose of going outside to fight. Williams was not using force to prevent Kelly from remaining in the house; Kelly was voluntarily headed out the door. In short, the defense of dwelling instruction was not applicable to the facts of this case, and it was not clearly erroneous to fail to give that instruction.
Lesser Included Offense Instruction
Finally, Williams contends that the trial judge should have, on his own, given a lesser included offense instruction for severity level 7 aggravated battery. That version of aggravated battery is defined as “intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3414(a)(1)(B). In contrast, the severity level 4 version with which Williams was charged, tried, and convicted is defined in relevant part as “[ijntentionally causing great bodily harm to another person.” K.S.A. 21-3414(a)(l)(A). In ruling on Williams’ motion for judgment of acquittal, which is referred to in the record as a motion for directed verdict, the district court found that the State had not proved that the knife the police found was used to inflict the injuries on Kelly, indicating a failure of proof that bodily harm was caused with a deadly weapon. Therefore, the relevant difference between the two crimes in this case is whether Williams actually caused great bodily harm to Kelly or whether she merely caused bodily harm but did so in a manner that could have inflicted great bodily harm.
Again, the reviewability of the issue is governed by the clearly erroneous exception in K.S.A. 22-3414(3), which specifically refers to the “failure to give an instruction, including a lesser included crime instruction.” On the way to making a clearly erroneous determination, we must necessarily look first at whether it was legally and factually appropriate for the district court to give a lesser included offense instruction on severity level 7 aggravated battery. See Plummer, 295 Kan. 156, Syl. ¶ 1.
The instruction would have been legally appropriate because “level 7 aggravated battery is a lesser included offense of level 4 aggravated battery.” State v. Hernandez, 294 Kan. 200, 205, 273 P.3d 774 (2012); accord State v. Winters, 276 Kan. 34, 38, 72 P.3d 564 (2003). Further, the giving of lesser included crime instructions is not a matter of discretion with the trial judge. K.S.A. 22-3414(3) directs that “where there is some evidence which would reasonably justify a conviction of some lesser included crime . . . , the judge shall instruct the jury as to the crime charged and any such lesser included crime.” (Emphasis added.)
Here, there was obviously evidence of bodily harm. Eyewitnesses testified that Williams stabbed Kelly in the head, causing blood to flow down her face. Kelly testified that it took approximately 100 stitches to close her head wounds. Further, a reasonable jury could certainly find that stabbing someone in the head with a steak knife is a “manner whereby great bodily harm, disfigurement or death can be inflicted” under K.S.A. 21-3414(a)(l)(B). Accordingly, there was the requisite evidence to support the giving of an instruction on severity level 7 aggravated battery.
Williams attempts to portray the trial judge’s statement that “a hundred stitches is more than slight, trivial, minor or moderate harm” as being a finding that the injuries suffered by Kelly were “great bodily harm” as a matter of law, thus precluding the lesser included offense instruction on merely “bodily harm.” But that takes the judge’s remarks completely out of context. He was ruling on a defense motion for directed verdict that required the court to determine whether the State had presented a prima facie case before resting, i.e., whether it had presented sufficient evidence from which a rational jury could find each of the crime’s elements beyond a reasonable doubt. One of those elements was that Williams had caused “great bodily harm.” That term has been defined as “more than slight, trivial, minor, or moderate harm, that does not include mere bruising, which is likely to be sustained by simple battery.” State v. Green, 280 Kan. 758, 765, 127 P.3d 241, cert. denied 549 U.S. 913 (2006). Therefore, the district court was merely opining that tire evidence that Kelly required 100 stitches would be sufficient to support a jury finding of great bodily harm, not that the court was making that finding as a matter of law.
Nevertheless, we must consider the question, even if the trial judge did not. If the evidence established, as a matter of law, that Kelly suffered great bodily harm, then the evidence could not reasonably justify a conviction for causing mere bodily harm, and a lesser included offense instruction on the severity level 7 version of aggravated battery was not required.
Ordinarily, whether a victim has suffered great bodily harm is a question of fact for the jury to decide. Green, 280 Kan. at 765. But that seemingly straightforward proposition has become muddled by some opinions that chose to take the decision away from the jury. See, e.g., State v. Moore, 271 Kan. 416, 420-21, 23 P.3d 815 (2001) (holding bums and scarring from hot iron on victim’s legs, breast, and inner thighs constituted great bodily harm as matter of law); State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996) (holding that bullet wound which severed spinal cord and caused paralysis constituted great bodily harm as matter of law); State v. Gideon, 257 Kan. 591, 614, 894 P.2d 850 (1995) (holding that rape or aggravated criminal sodomy constituted great bodily harm as matter of law); Doolin v. State, 24 Kan. App. 2d 500, 503-04, 947 P.2d 454 (1997) (holding that bullet wound which required hip bone and hip socket to be replaced constituted great bodily harm as matter of law); but cf. State v. Brice, 276 Kan. 758, 773-74, 80 P.3d 1113 (2003) (bullet that goes through body without hitting any vital organs may or may not cause great bodily harm); State v. Vessels, No. 96,421, 2008 WL 1847374, at *5 (Kan. App. 2008) (unpublished opinion) (broken bones do not necessarily constitute “great bodily harm” as matter of law).
Here, Kelly’s own testimony sent mixed signals to the jury as to whether her injuries were great bodily harm or mere bodily harm. Although she related that her wounds required a large number of stitches, she also minimized the pain she had suffered and said that she did not require any follow-up medical services other than to remove the stitches. A reasonable and rational jury could have gone either way: bodily harm in a manner that could have caused great bodily harm, or great bodily harm. Accordingly, it was error not to give the lesser included offense instruction on severity level 7 aggravated battery.
But our determination that the omission of the instruction was erroneous does not answer the question of whether the failure to give the unrequested instruction was clearly erroneous. In other words, just because we find that a rational jury could have found Williams guilty of the lesser included offense does not necessarily mean that we believe that the jury would have convicted her of the lesser offense. Here, the evidence is such that we simply cannot be firmly convinced of which crime the jury might have chosen, as between the severity level 4 and severity level 7 versions. That degree of certainty, or perhaps more accurately, that degree of uncertainty falls short of what is required to meet the clearly erroneous standard. Accordingly, we affirm Williams’ conviction.
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The opinion of the court was delivered by
Miller, J:
This is an action for professional negligence filed by Mrs. Thelma L. Phillips against an attorney, David W. Carson; the individual partners of his law firm; and the partnership Carson, Fields, Boal, Jeserich & Asner, a Kansas professional partnership. The lawsuit is based upon Carson’s allegedly negligent handling of legal duties associated with personal loans which he acquired from Mrs. Phillips. Judge Lewis C. Smith, of the Johnson County District Court, entered summary judgment for plaintiff and against defendant Carson, finding that he was negligent in his actions as plaintiff s attorney. The judge also sustained motions for summary judgment filed by the other individual partners of the law firm, and by the partnership, finding that Carson’s partners and his law firm were not vicariously liable because Carson’s actions were not within the scope of his authority and were not engaged in to carry on the partnership business. Carson appeals from the summary judgment entered against him. His principal claim of error is that the trial court erred in entering summary judgment on the issue of negligence. Mrs. Phillips cross-appeals from the order of sum mary judgment entered against her claims against the other partners of the law firm and the partnership. Her principal claim of error is that the trial court erred in finding that the partners and the firm were not vicariously liable and in finding that Carson was not acting within the ordinary course of business of the partnership or with the authority of his partners at the time of the transaction in question.
Mrs. Phillips and her husband, Robert L. Phillips, and Mr. and Mrs. Carson had been friends for several years prior to Mr. Phillips’ death in 1978. Mrs. Phillips retained Carson and his law firm to handle the estate of her deceased husband. The probate proceedings commenced in 1978, and the estate had not been closed in May of 1982 when Mrs. Phillips secured other counsel.
While the estate was pending, Mrs. Phillips paid fees totaling $80,000 to the firm. Carson told her that this fee was to take care of all of her legal business until the estate was closed. Mr. Asner prepared Mrs. Phillips’ individual tax return for at least 1980 through 1982. Carson represented Mrs. Phillips in a conflict she was having with a builder, handled negotiations for her relating to a sulphur lease in Pecos County, Texas, and when Mrs. Phillips inappropriately loaned her niece money from the estate, Carson made the necessary arrangements to have the money returned to the estate. The firm did not bill Mrs. Phillips for any of this additional work, which was performed for her personally. Apparently John Anderson, Jr. handled some of the legal work for Mrs. Phillips and shared in the fees, but that is not material to the issues here.
In August 1980, Carson told Mrs. Phillips that he was having financial problems, and Mrs. Phillips loaned him $200,000. Carson told her that she would be fully secured, and he gave her a note and a second mortgage on some Arizona property. These documents were properly executed and tire mortgage was filed of record. In 1981, Phillips loaned Carson an additional $70,000. Because of his representations, she believed that this loan would get him over his current financial difficulties. She was concerned that he might harm himself, and she thought this loan would increase the chances that her first loan would be repaid. Later, Carson asked Mrs. Phillips to release her mortgage on the Arizona property so that he could refinance and sell that or another property. He offered her a mortgage on 90 acres he owned in Wyandotte County, and told Mrs. Phillips that this would put her in a better position. She relied upon Carson’s statement that she would be better secured and she trusted his advice as her attorney. On March 29, 1982, Mrs. Phillips released her mortgage on the Arizona property, and Carson gave her a new promissory note for $274,933.70, which included past due interest as principal. Carson also prepared and executed a mortgage on the Wyandotte County property to Mrs. Phillips, but he failed to file that mortgage with the Register of Deeds.
Carson at no time advised Mrs. Phillips to seek independent counsel regarding the loan transactions, and she did not discuss them with other partners of the Carson firm or with other counsel. In May 1982, Mrs. Phillips called Carson’s office and learned that her mortgage had not been filed of record. She sought independent counsel, who secured the mortgage and filed it for record on July 23, 1982. Mrs. Phillips then demanded payment in full from Carson; it was not forthcoming. On September 10, 1982, Carson filed a Chapter 11 petition in the United States Bankruptcy Court. In an order filed on February 24, 1984, the bankruptcy court granted Mrs. Phillips relief from the automatic stay to pursue her claim against Carson and the partnership in an appropriate court. The bankruptcy court reserved the exclusive jurisdiction to determine the dischargeability of any portion of any resulting personal judgment against Carson not satisfied by insurance proceeds or other persons. This order was affirmed by United States District Judge Dale E. Saffels on October 10, 1984. Judge Saffels noted that the claim being asserted by Mrs. Phillips was “based on allegations of legal malpractice and breach of fiduciary duty.”
The bankruptcy court also entered an order avoiding Phillips’ mortgage on the Wyandotte County land as a preferential transfer pursuant to 11 U.S.C. § 547(b) (1982), rendering it an unsecured claim. Carson appealed that decision and on June 26, 1985, Chief Judge Earl E. O’Connor of the United States District Court vacated the bankruptcy court’s order and remanded for further proceedings because Carson had not been given notice and an opportunity to appear at the preferential transfer avoidance hearing in the bankruptcy court. The bankruptcy court, on September 22, 1986, dismissed the trustee’s complaint to avoid the transfer as a preference because the real estate had been transferred and was no longer property of the bankrupt estate, rendering the preference issue moot.
By her petition filed in this action, plaintiff claims that Carson, while acting as attorney for her and within the scope and course of the law partnership business and authority, and while acting in a fiduciary relationship towards her, negligently performed or failed to perform those legal duties entrusted to him to be performed on behalf of the plaintiff, listing some six allegedly negligent acts or omissions. These include negligently advising or failing to advise her of the legal nature, extent, and effect of the mortgage she was to receive, of the effect of her releasing the mortgage on the Arizona property, and of the extent of the superior liens on the Wyandotte County land; failing to timely draft the note and mortgage; failing to record the mortgage and perfect plaintiff s security interest; failing to fully advise her of the effect upon her of his financial consolidation; and filing his Chapter 11 petition which, under the circumstances, left her totally unsecured. She contends that a fiduciary relationship existed between Carson, the individual partners of the firm, the partnership, and the plaintiff. She seeks actual damages of $274,933.70 plus accruing interest and costs.
All defendants filed answers. Extensive depositions of all of the principal parties were taken, interrogatories were served and answered, documents were disclosed, and discovery was completed. Each of the defendants filed separate motions for summary judgment. That filed by David W. Carson was combined with a confession of judgment, wherein Carson entered a “confession of judgment for the unpaid amount of principal on the note held by plaintiff and for the proper accrued interest thereon subject to the Order of the . . . Bankruptcy Court . . . which retained . . . the exclusive jurisdiction to determine the dischargeability of such debt. Said confession of judgment is made on the note and shall not be considered a confession of judgment on the general pleadings or allegation of negligence.”
These motions were accompanied by suggestions in support thereof and by statements of uncontroverted fact. Plaintiff responded and opposed the motions. The trial court heard oral argument on May 9, 1985, and on May 29, 1985, filed its Memorandum Decision entering judgment in favor of plaintiff and against David W. Carson for “breach of duty in the negligent performance of legal services and advice” in the total sum of $378,107.45 plus interest from May 9, 1985, at the statutory rate. The trial court also entered judgment in favor of the partnership, Carson, Fields, Roal, Jeserich & Asner, and the partners individually (except Carson), finding that those defendants were not vicariously liable to the plaintiff for the breach of duty and negligence of defendant Carson.
On July 19, 1985, the trial court filed its Modified Memorandum Decision, which is the order from which this appeal is taken. It entered judgment as set forth above. The trial court made extensive findings of fact and conclusions of law, which are as follows:
“Thereupon the Court . . . makes the following findings of fact relative to the defendants’ motions for summary judgment and/or .for dismissal.
“1. The law partnership of Carson, Fields, Boal, Jeserich & Asner had no partnership agreement and no documents were created which set forth the terms and conditions of the working arrangements between the parties except for possible documentation which may have dealt with what would happen in the event any partner left the partnership.
“2. All partners were given full power of authority to contract to perform legal services on behalf of a client and to set the fee arrangement, if any, was to be made as the result of work performed.
“3. There were generally no set procedures established with the firm of Carson, Fields, Boal, Jeserich & Asner by which the work of one partner would be reviewed in any way by another partner or partners of the law firm.
“4. There were no rules, guidelines, or policies laid down within the partnership of Carson, Fields, Boal, Jeserich & Asner which governed the conduct of the attorneys who were partners relating to the performance of legal work on behalf of clients, even after payments had been received. The partners relied on each other’s integrity, common sense, ability and initiative to a considerable degree.
“5. The only restriction placed on the partners of the firm of Carson, Fields, Boal, Jeserich & Asner as to what clients they may accept and provide advice and legal service to was that a partner could not accept a client to the extent that it created a conflict with respect to other clients.
“6. There were no restrictions applicable in connection with the use of the letterhead of the firm by individual partners as related to personal matters. All partners, if they had personal correspondence to someone, would have it typed on the law firm’s letterhead by the law firm’s personnel.
“7. During the years 1980 through 1982, the firm of Carson, Fields, Boal, Jeserich & Asner, by and through any of its individual member partners, never sought to limit defendant Carson’s authority in the scope or kind of law in which he was engaged to practice.
“8. During the years 1980 through 1982, Doreen Benton performed services for defendant Carson relating to his farming operations and would perform some such work at the law offices of Carson, Fields, Boal, Jeserich & Asner when and where she was also employed as a legal secretary. Further, Doreen Benton never attempted to make known to clients of the law firm the distinction and capacity between her role as Carson’s personal secretary and legal secretary for the firm of Carson, Fields, Boal, Jeserich & Asner.
“9. There was no objection by any partner of the law firm to allowing Carson to conduct his outside business affairs within the premises of the law firm itself or by utilization of law firm personnel.
“10. There were no restrictions placed on the law firm during the time period from 1980 through 1982 with regard to performing work of a personal nature for a member of the law firm.
“11. During the years 1980 through 1983, Carson did not work for clients on an hourly basis. During this time period, Carson was not aware of the other partners’ system of establishing fee arrangements. During the years of 1980 through 1983, Carson never maintained any records of the time or service spent performing legal services and matters for clients.
“12. That Carson, in his practice of law as a licensed attorney within the State of Kansas, has and does provide advice to clients in the field of property law to the extent he feels he is capable. Further, Carson feels and felt himself capable to handle legal affairs of clients which involved preparation of promissory notes and respective mortgages to secure those notes, unless it was something very complicated. Further, Carson considers himself competent to have engaged in advising clients as to their rights which may have been derived under promissory notes, mortgages and deeds of trust, unless there was a complicated problem. Carson did not consider the loan transaction between himself and plaintiff to be a complicated transaction.
“13. In 1978 plaintiff retained the firm of Carson, Fields, Boal, Jeserich & Asner to represent her with regard to the estate proceedings pertaining to the death of her husband, Robert Phillips, which proceedings were filed and pursued in the Johnson County District Court. Further, plaintiff remained a client of the law firm beginning in 1978 and continuing through at least December 31, 1982. Defendant Carson beginning in 1978 and thereafter was involved in an attorney/client relationship with plaintiff with regard to litigation aspects of the Estate of Robert L. Phillips, as well as on other items.
“14. That the law firms were paid a substantial sum from plaintiff in the total amount of $80,000.00 for legal services rendered in the Estate of Robert L. Phillips.
“15. That attorney fees paid by plaintiff as set forth above were paid by plaintiff with the understanding and belief that said payment was to be payment of any and all legal services previously rendered or to be rendered in the future and until such time as the Estate of Robert L. Phillips was closed. The estate of Robert L. Phillips was not closed until some time in the year of 1983.
“16. That on or in close proximity to August, 1980, at a social function, David W. Carson, who was in great financial distress was telling plaintiff the nature of his problems. This was not in the nature of firm business. Plaintiff, however, related to Mr. Carson that she had some money and if $200,000.00 would help him she would loan it to him. Mr. Carson accepted the offer and he agreed to take care of the legalities in connection with said loan transaction, including drafting the promissory note and mortgage on certain Arizona property and filing same in accordance with defendant Carson’s representation that plaintiff would be fully secured thereby. Further, defendant Carson indeed had prepared a promissory note and mortgage with Mr. Carson and his wife as signators on same, no firm or firm members were on same.
“17. That with regard to defendant Carson’s agreement and performance pursuant thereto to provide legal services to plaintiff as set forth in the paragraph immediately preceding above pertaining to the preparation of promissory notes, mortgages and/or deeds of trust and proper filing of same, he agreed to perform such legal services additionally and with the authority as plaintiff s legal counsel with regard to said transactions and those subsequently related thereto.
“18. That on or about March 3, 1981, plaintiff loaned to defendant Carson and his wife an additional $70,000.00. Further, that at or about such time, defendant Carson agreed to prepare a promissory note and mortgage and have same filed with the State of Arizona, which was in fact done.
“19. That during the course of Carson’s legal representation of plaintiff during the probate matters pending in Johnson County, Kansas, Carson gained particular knowledge as to the financial status of plaintiff s husband’s estate. Defendant Asner prepared, in the course of his attorney/client relationship with plaintiff, an inventory of plaintiff s property specifying the amount of money plaintiff owed as of April 22, 1980.
“20. That on several occasions defendant Carson did send plaintiff certain interest payments, he represented her in a dispute with a contractor to build her house, represented her in regard to certain sulphur leases in Pecos County, Texas.
“21. That during the time frame certain work was done on plaintiff s husband’s estate, some tax work was done and contracts made by the defendant firm, for which they received compensation. All of which matters are collateral to the issues of this case.
“22. That a day or so prior to March 29, 1982, Carson and plaintiff had a telephone conversation wherein Carson told plaintiff he had an opportunity to sell his Arizona property on which plaintiff had a secured mortgage and asked if plaintiff would come over to his law office and sign a release of the mortgage. That at such time, Carson suggested giving plaintiff a mortgage on his 90 acre home place.
“23. That on or about March 29, 1982, plaintiff went to the law office of Carson located with the complex of offices of the firm of Carson, Fields, Boal, Jeserich & Asner and signed a release on the Arizona property. Further, that at such time and place, Carson represented to plaintiff that he would give her a mortgage on his 90 acre home place in Wyandotte County, that such mortgage would put her in a better position and that it was a third mortgage. Further, that at such time and place, Carson stated to plaintiff he would take care of the legalities of the transaction and inquired if plaintiff wanted the mortgage recorded, to which plaintiff responded ‘Yes.’
“24. That pursuant to Carson’s agreement to do so and plaintiffs request that he do so, Carson also agreed to prepare a promissory note to represent the indebtedness in which was to include an add-on past due interest, which interest had not been paid according to the terms of prior promissory notes provided plaintiff by Carson.
“25. That Carson never caused the Kansas real estate mortgage on his home place to be filed on behalf of plaintiff.
“26. That throughout the loan transactions between plaintiff and Carson up through March 29, 1982, plaintiff believed that Carson was acting on her behalf as her lawyer with regard to the preparation of legal documents and advice pertaining thereto.
“27. That at or about the time of the March 29, 1982, transaction between Carson and plaintiff, plaintiff did not know that without her releasing the mortgage on the Arizona property, Carson could not have received the proceeds from the sale therefrom. Further, that at or about such time, plaintiff did not know how to determine the amount of mortgages presently existing on Carson’s home place in Wyandotte County. Further, that at or about such time, plaintiff did not know that she had certain legal rights to exercise against Carson as a result of his being in default and she was not informed of the same. Further, that at or about such time, plaintiff did not know and was not informed that in order for her to realize on the Kansas mortgage interest she was to receive from Carson in the event of his default, she would have to pay off all mortgage holders with a prior recorded interest in said property.
“28. That at no time was plaintiff ever informed by anyone that the advice and activities of Carson as her attorney as it related to the loan transactions were not being performed by him as her attorney.
“29. That Carson, by and through his attorney, David W. Boal, filed a petition in bankruptcy in the U.S. Bankruptcy Court for the District of Kansas, which court lifted a stay order and granted this Court authority to proceed. The Bankruptcy Court caused the mortgage that Carson had given to plaintiff on his Wyandotte County home place and which plaintiff had had to file on her own behalf to be avoided as a preference pursuant to 11 U.S.C. Sec. 547(b). The dischargeability of said debt is not for this Court to resolve.
“Based upon the above and foregoing findings, all of which are incorporated herein by this reference, the Court makes the following conclusions of law.
“1. That plaintiff was a client of the law firm of Carson, Fields, Boal, Jeserich & Asner, from at least 1978 through the end of 1982, for the major purpose of handling the estate of plaintiffs husband.
“2. That with regard to the loan transaction between plaintiff and defendant Carson and his wife during the time periods between August, 1980 and March 29, 1982, defendant Carson owed plaintiff a duty to properly perform the legal acts necessary to consummate said transactions and render appropriate and proper legal advice to plaintiff as related to said transactions, the performance or breach of which duty should be adjudged under standards of care applicable to attorneys in the State of Kansas.
“3. That defendant Carson breached his duty of due care to plaintiff with regard to the loan transactions and his duty as her attorney as set forth herein-above, in the following manner:
“A. Failure to file or have filed in the appropriate location the real estate mortgage on his Wyandotte County home place which he agreed to provide plaintiff and which he agreed to file or have filed, the failure of which in conjunction with the filing of defendant Carson’s petition in bankruptcy on or about September, 1982, caused plaintiff to be unsecured.
“B. In failing to advise plaintiff throughout these loan transactions that if plaintiff wanted independent legal counsel to advise her regarding the proposed transaction that she should obtain same and would have to go elsewhere to obtain same.
“C. In failing to advise plaintiff with regard to the loan transaction to obtain an independent examination report on the title of any property proposed to be given to secure the loan, showing the amount of the property owned, the nature of the ownership, and the existence, amount and details concerning any encumbrances on that property;
“D. In failing to advise plaintiff with regard to the loan transaction to obtain an independent appraisal on the property proposed to be given as security for the loan;
“E. In failing to advise plaintiff to obtain a full financial statement from himself and his wife as borrowers;
“F. In failing to advise plaintiff to obtain assurances (by contract or otherwise) that the costs of protecting the client with respect to the loan, including legal fees, is borne not by plaintiff but by Carson and his wife as the borrowers;
“G. In failing to advise plaintiff as to the legal effect and consequences of default in the payment of the loan, including failing to advise plaintiff that if the loan is secured by a mortgage which is junior and inferior to the mortgages that plaintiff must be prepared to pay off all prior mortgages in case there is a default on any of the loans outstanding on the property and subsequent mortgage foreclosure action.
“4. That as a direct and proximate result of the above and foregoing negligence and breach of duty by defendant Carson as attorney for plaintiff with regard to the subject loan transactions spanning the time period between August, 1980 through March 29, 1982 and thereafter, plaintiff has been damaged in the total sum of $378,107.45, which figure represents the total amount of principal and interest on the loan obligation as of the 9th day of May, 1985, and which amount shall bear interest at the judgment rate of 15% per annum from and after said date until paid in full.
“5. That the loan of monies by plaintiff to Carson and/or his wife as set forth hereinafter were private loans in that the monies were lent to defendant Carson and his wife and not to the law firm of Carson, Fields, Boal, Jeserich & Asner and/or its other individual partners and defendants herein.
“6. That defendant Carson, in acting as plaintiff s attorney as relating to the performance of legal acts and the rendition of legal advice throughout the loan transactions between plaintiff and defendant Carson and his wife spanning the time period between August, 1980 through March 29, 1982 and thereafter, was not acting as a matter of law within the scope of his actual, apparent and/or implied authority and were not as a matter of law acts engaged in by the defendant Carson for apparently carrying on the business of the law firm partnership in the usual way.
“7. That plaintiff s beliefs that the actions of defendant Carson as her attorney with regard to the loan transactions were engaged in within defendant Carson’s actual, apparent and/or implied authority were a personal matter between plaintiff and defendant Carson and Mrs. Carson.
It Is Therefore Ordered, Adjudged And Decreed that:
“1. Judgment shall be rendered in favor of plaintiff and against defendant Carson for his breach of duty in the negligent performance of legal services and advice in the total sum of $378,107.45, said judgment to carry interest from and after May 9, 1985 at the judgment rate of 15% per annum until paid in full.
“2. That judgment be rendered in favor of the defendant partnership Carson, Fields, Boal, Jeserich & Asner and its individual partners, John H. Fields, David W. Boal, Gerald N. Jeserich and Scott I. Asner and against plaintiff on the grounds that as a matter of law said defendants are not vicariously liable to plaintiff for the breach of duty and negligence of defendant Carson in light of the above and foregoing findings of fact and conclusions of law.
“This Modified Memorandum Decision, when signed by the Judge and filed with the Clerk shall constitute the Judgment of the Court.”
Appellant Carson states the issues on this appeal as follows:
“I. Whether the District Court erred in granting summary judgment on the issue of negligence when there were genuine issues as to material fact remaining unresolved.
“II. Whether the District Court was premature in granting summary judgment on the issue of negligence when the issue of the mortgage security was not resolved in the bankruptcy court.
“III. Whether the court erred in not granting an unencumbered money judgment on the confession of judgment by the debtor.”
Carson first argues that summary judgment is not normally appropriate in negligence cases. That is true. This court has held that summary judgment is seldom proper when the issue is negligence. Knowles v. Klase, 204 Kan. 156, 460 P.2d 444 (1969), was a slip and fall case in which summary judgment was entered by the trial judge before trial. We reversed, noting that summary judgment “is seldom proper in negligence cases,” and finding that the facts were disputed and that the matter should have been resolved by jury trial and not by summary judgment. Similarly, in Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770 (1969), we reversed the trial court’s entry of summary judgment in a personal injury action arising out of an automobile collision. There, discovery was incomplete as the deposition of the defendant had not been taken. There were unresolved issues of material fact, and we held that the entry of summary judgment was inappropriate.
This does not mean, however, that summary judgment is never appropriate in negligence cases. We have affirmed summary judgment in several negligence cases where there was no genuine issue of material fact and the undisputed material facts
supported a finding of no negligence. In Albright v. McElroy, 207 Kan. 233, 484 P.2d 1010 (1971), we upheld the entry of summary judgment, agreeing with the trial court that, giving the plaintiffs evidence the most favorable construction possible, there was no showing of causal negligence on the part of the defendant. Discovery had been completed, and there was no evidence that the defendant, a contractor who was excavating a street to construct a manhole, had failed to give proper warning or was guilty of any actionable negligence. Smith v. Engel, 206 Kan. 298, 477 P.2d 937 (1970), was a personal injury action arising out of an automobile collision. The defendant was properly making a left turn when her vehicle was rear-ended by another car in which plaintiff was a passenger. Discovery had been completed. The trial court held that there was no evidence, even when viewed in the light most favorable to plaintiff, that the defendant driver was negligent. We affirmed the entry of summary judgment. See Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838 (1967).
Appellant argues that there were genuine issues of material fact here which remain unresolved, and therefore summary judgment was improper. Our statute, K.S.A. 60-256, provides for the entry of summary judgment “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.” We have interpreted the statute many times, holding that summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. See Lessley v. Hardage, 240 Kan. 72, Syl. ¶ 1, 727 P.2d 440 (1986); Finkbiner v. Clay County, 238 Kan. 856, 857-58, 714 P.2d 1380 (1986); Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390, 710 P.2d 1297 (1985).
Carson argues that in his motion for summary judgment and confession of judgment, he was specific in stating that he was not admitting negligence. He does not challenge, however, any of the facts relating to his conduct and business and professional relationship with Mrs. Phillips. He does not challenge the accuracy of the 29 paragraphs of findings of fact included within the trial court’s order. He notes that Mrs. Phillips opposed his motion for summary judgment and that she asserted that there were unresolved issues of material fact. She did oppose his motion, but for a different reason. Carson argued to the trial court that his confession of judgment on the note rendered her negligence claim invalid for want of damages; plaintiff strenuously opposed that argument. The facts which she contended were unresolved dealt with the liability of the partnership and the other individual partners of the firm, not with Carson’s individual liability. The material facts relating to Carson’s professional conduct, upon which the trial court made a finding of negligence, were undisputed. A trial court has the inherent authority to summarily dispose of a matter on its own motion where there remains no genuine issue as to any material fact, and, giving the benefit of all reasonable inferences that may be drawn from the evidence, judgment must be for one of the parties as a matter of law. Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 816, 676 P.2d 113 (1984); Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, Syl. ¶ 1, 420 P.2d 1019 (1966). We will return to the matter of professional negligence later in this opinion.
Carson next argues that a crucial factual issue remained regarding whether or not plaintiff sustained any damage. He bases this upon his confession of judgment on the note, and also claims that it is not clear that he caused her to lose security for her loan, and that she waived her rights to the collateral in the bankruptcy proceeding, leaving her with only a claim for a money judgment on the note, which he has already confessed.
We consider these in sequence. Carson treats this action as though it were a suit on the note given by David W. Carson and Marjorie Carson to Mrs. Phillips. His brief is submitted on behalf of both David W. and Marjorie Carson. Insofar as we are able to ascertain from the records before us, however, Marjorie Carson has never been a party to this action. This is not a suit upon a note against the makers thereof. It is and has been since the petition was filed an action against Carson and his law partners, individually and as a partnership, for damages for professional negligence and breach of fiduciary duty. The fact that Mrs. Phillips is seeking as damages only the sum of money, not yet repaid, which she loaned to Carson, plus accrued interest thereon, while she might have sought damages of other kind, character, or amount does not convert the suit from a negligence action for damages to an action upon a promissory note. His confession of judgment for the unpaid principal amount and accrued interest on the note was not accepted by the plaintiff. While we find no Kansas cases in point, and none have been cited in the briefs, it is the general rule that a creditor must consent to or ratify a judgment by confession. Such a judgment is not binding on the plaintiff unless the plaintiff consents to the judgment, or later ratifies it. See 49 C.J.S. Judgments § 148 and 47 Am. Jur. 2d Judgments § 1102 and cases cited therein. Here, there was no consent by the plaintiff and no acceptance of the offer of a judgment by confession. Since no judgment by confession was entered by the court, there could be no ratification thereof. We also note that relief from the automatic stay was granted by the bankruptcy court and the United States District Court so that Mrs. Phillips might pursue her claim based on allegations of legal malpractice and breach of fiduciary duty. The stay was not lifted so that she might file a suit on a note for recovery of debt.
Carson claims that it is not clear that he caused Mrs. Phillips to lose security for her loan. The undisputed evidence is that by his counsel and advice she was persuaded to release her second mortgage on Arizona property, which was a desirable enough security that one of Carson’s commercial creditors wished to have it for security purposes. In exchange, she received a fourth and unrecorded mortgage on Wyandotte County land. Though Carson contends that the land was worth two million dollars in March 1982, when he gave Mrs. Phillips the fourth mortgage, his amended disclosure statement filed with the bankruptcy court sixteen months later places the value at not more than the principal and accrued interest of the first mortgage, an amount less than $500,000. Later, the property was transferred to the first mortgage holder who sold about one-half of the land, leaving 42 acres to satisfy the third mortgage of Metro North Bank, some $365,000, and that of plaintiff. We do not know whether the first mortgage has been fully satisfied. We are told that the second mortgage has been satisfied from the sale of other property. Although we do not have the precise bankruptcy court records before us, it is apparent that at the time Mrs. Phillips relinquished her interest she obviously had no reasonable possibility of recovery. In light of the other prior claims, her interest was worthless.
Carson also contends that Mrs. Phillips waived her security by seeking avoidance of her interest in the bankruptcy proceeding. The petition to avoid her mortgage as a preference, however, was filed by the trustee in bankruptcy, not by Mrs. Phillips. It is possible that she admitted the facts upon which that petition was based — she could hardly have done otherwise, if they were true — but we do not have those proceedings before us. At any rate, the admission of facts, if true, by a party defendant in an action does not constitute a voluntary waiver of a claim or right. We have nothing before us to support appellant’s argument in this regard. We find it clear on the record before us that Mrs. Phillips has sustained a loss. On the advice of counsel, she invested over a quarter of a million dollars, secured only by a fourth mortgage which turned out to be worthless. After some 18 months in the bankruptcy court, Mrs. Phillips saw her security melt away and she filed this action. Neither the filing of the action nor the entry of summary judgment were premature.
Carson contends that the elements of professional negligence are not satisfied by his confession of judgment on the promissory note. That may be true, but the trial court in considering the motion for summary judgment was not limited to a review of the motion and confession filed by Carson. As noted earlier, the trial court has inherent authority to enter summary judgment on its own motion, and in so doing the court was fully justified and authorized to review the pleadings, the depositions, the documents, the admissions and responses to interrogatories, and the entire record before him. The court did so and concluded that Carson was negligent.
The elements of legal malpractice are: the existence of an attorney-client relationship giving rise to a duty; that the attorney breached that duty by act or omission; that the attorney’s breach of duty proximately caused injury to the client; and that the client sustained actual damages. Meiselman, Attorney Malpractice: Law and Procedure § 3.1 (1980). In addition, Meiselman points out (§ 1.5, at 9) that business transactions between attorney and client are subject to strict and crucial scrutiny, and such agreements are construed in a manner most favorable to the client. Further, at page 11, Meiselman states:
“Any doubt in determining whether an attorney-client relationship existed between a purchaser-attorney and a vendor-client should readily be resolved against the attorney in the absence of proof of clear and forthright statements made by the attorney to the clients that they should obtain outside independent legal consultation before continuing the negotiation process. The attorney will be expected to affirmatively demonstrate that his transactions with the client were in all respects open, voluntary and fully understood.”
The Code of Professional Responsibility, by which attorneys in this state are governed, states:
“DR 5-104 Limiting Business Relations with a Client.
(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” 235 Kan. cxlvi.
A comment on this section of the Kansas Code of Professional Responsibility, pertinent here, is as follows:
“It is not uncommon for attorneys to engage in business transactions with clients and other nonlawyers. Despite intentions to the contrary, members of the bar quite often use their legal knowledge or give advice on behalf of such joint efforts. In these situations courts are prone to find the existence of an attorney-client relationship upon the complaint of the lay party. The existence of retainer or fee charge is usually immaterial.
“. . . In practice, it is easier to support a malpractice claim in situations of financial involvement with clients than to prove an ethical violation. Under such circumstances if the client suffers injury the case law heavily underscores the likelihood of his recovery.
“An attorney who is confronted with the possibility of a joint business venture with a client is cautioned to consider the increased malpractice and ethical risks along with the financial considerations. In all such situations there should be a complete disclosure, and the client should be strongly urged to seek independent legal and other professional advice.” Stern and Martin, Mitigating the Risk of Becoming a Defendant in a Malpractice Action by Your Former Client, 47 J.K.B.A. 41, 46 (1978).
The trial court found that Carson was Mrs. Phillips’ attorney throughout the critical period of time, and that he was representing her as her attorney and owed her the duty of attorney to client in advising her about the loans he was securing and the security which he gave for those loans. Paragraphs 13 through 28 of the trial court’s findings of fact, in particular, support the trial court’s conclusions of law. The trial court also found that Carson breached his professional duty to plaintiff by failing to advise her to secure outside independent legal and financial advice. See conclusions 3 B, C, and D of the trial court opinion. Those conclusions are all supported by the undisputed facts.
In Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976), we summarized the duty of attorney to client in Syl. ¶¶ 3 and 4. We said:
“The relationship of an attorney to his client is fiduciary in character, binding the attorney to the highest degree of fidelity and good faith to his client on account of the trust and confidence imposed.”
“A fiduciary relation does not depend upon some technical relation created by, or defined in, law. It may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.”
Under the extensive factual record before us, we agree with the trial court that there existed an attorney and client relationship between Carson and Mrs. Phillips during the time that Carson secured loans from Mrs. Phillips, advised her or failed to advise her about them, and agreed to take care of preparing and filing all necessary documents in connection therewith. That relationship gave rise to the duty upon the attorney to properly, competently, and adequately counsel, advise, and represent the client. That duty was breached, not only in failing to file the final mortgage of record, but also in failing to advise Mrs. Phillips of the legal ramifications of the transactions, in failing to advise her of the legal consequences of the changes in security, in failing to recommend that she secure independent counsel, and in other ways pointed out by the trial court in Paragraph 3 of his conclusions of law. Finally, we agree with the trial court that Carson’s extensive breaches of the Code of Professional Responsibility proximately caused injury to his client, and that she sustained substantial actual damages.
Finally, Carson argues that Mrs. Phillips should not be permitted to seek a determination of negligence in this action since a party vitally interested in the matter, Carson’s professional liability insurance carrier, is not a party. He argues that plaintiff is in effect seeking a declaratory judgment that Carson was guilty of professional negligence, and that such an action is improper without the presence of the insurance carrier. This argument overlooks the gist of this action: one for damages based upon claims of negligence. It has long been the law of Kansas that in an automobile collision case, evidence that a party was or was not insured is inadmissible. Nirschl v. Webb, 239 Kan. 90, 93, 716 P.2d 173 (1986). Similarly, an insurance carrier for a de fendant in a tort action is not ordinarily a proper party to the action, with the exception of the insurer in a “filed policy” action. See Nirschl v. Webb, 239 Kan. 90; Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 556 P.2d 199 (1976); Dunn v. Jones, 143 Kan. 218, 53 P.2d 918 (1936). And see also 67A C.J.S. Parties § 45, which, in discussing who may be joined as defendants in a tort action, states: “The fact that insurance companies are bound by contract to defend their insureds does not generally make them parties defendant who may be joined in an action against the insured . ...” A defendant’s liability insurance carrier is ordinarily not a necessary party in a tort action.
The record before us indicates that the insurance carrier has been notified of the pendency of this action. It did not seek to intervene, and no motion has been filed to make it a party. Plaintiff did not err in failing to join it as a party. The insurance carrier’s liability on its policy with Carson is not an issue before us in this case. We hold that the trial court properly entered summary judgment against Carson based on his professional negligence.
We turn now to the cross-appeal by Thelma L. Phillips. She contends that the trial court erred in granting summary judgment for the partnership and its individual partners, and in ruling as a matter of law that they were not vicariously liable fpr the damages caused plaintiff by Carson’s professional negligence. The trial court, in its conclusions of law numbered six and seven, found that Carson, while acting as plaintiff s attorney in regard to the loan transaction, was not, as a matter of law, acting within the scope of his actual, apparent, and/or implied authority; that Carson was not, as a matter of law, engaged in acts for apparently carrying on the business of the law firm partnership in the usual way; and that the plaintiff s beliefs that Carson’s actions were a part of the law firm’s regular practice of law were not controlling.
Kansas has adopted the Uniform Partnership Act, portions of which we must first review. K.S.A. 56-309 deals with the authority of a partner to bind the partnership. It reads in pertinent part:
“(a) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he or she is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom the partner is dealing has knowledge of the fact that he or she has no such authority.
“(b) An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.”
K.S.A. 56-313 deals with wrongful acts of a partner. It provides:
“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his or her copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”
We considered the scope and application of K.S.A. 56-309 in Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, 665, 715 P.2d 376 (1986). We held that one general partner, Loyd, had both apparent and actual authority to act within the usual course of the partnership business, even though he used his authority illegally, to the detriment of the corporation with whom he dealt and of his general partner, Mohr.
The evidence here is clear that Carson and the partnership were representing Mrs. Phillips and were her attorneys for the primary purpose of probating the estate of her deceased husband. Additionally, the firm charged her a fee which was to cover not only the probate matter, but all other legal services she might require individually during the term of the probate. Additional legal services were provided for her, as already discussed, without additional charge.
Advising a client on the propriety of making loans, the legality and sufficiency of proposed security, the method of ascertaining the value of the security, the method of recording security documents and the like are all matters well within the scope of the general practice of law. Had Mrs. Phillips been considering a loan to a third person and had a member of the partnership advised her as Carson did (or as he failed to advise her), there would be little question of the firm’s responsibility in the event that she sustained damages as a result of that action or omission. Similarly, the preparation of notes and mortgages, and the filing of mortgages for record, are matters well within the scope of the general practice of law handled daily by lawyers throughout this state.
Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751 (Tex. 1976), a case decided by the Supreme Court of Texas, is somewhat similar, and is illustrative. One of the plaintiffs in that case, Cook, was represented by an attorney, Warren C. Lyon, and by the law firm with which he was associated, Brundidge, Fountain, Elliott & Churchill, during her divorce proceedings. She discussed with Lyon the investment of some monies she was to receive from an estate. The plaintiffs, Cook, her aunt, and her sister ultimately had an attorney in Illinois send to Warren Lyon, as attorney for Isabelle Griffin, Winifred Baker, and Betty Cook, a check for over $60,000, which check was endorsed by Lyon as attorney for the three plaintiffs. He was to invest this money with a corporation, Texas Yummers, of which he was president. The money was to be paid back with substantial interest. He later persuaded plaintiffs to exchange their rights under the investment contract for stock in Texas Yummers. This they did. Shortly thereafter, the corporation was adjudged bankrupt and this suit followed.
The law firm admitted that Lyon was a partner in the practice of law but they denied that he was acting in the capacity of a partner in giving the advice, performing the services, and doing the acts complained of by plaintiffs. They contended that he was acting in his individual capacity with respect to his real estate business and as a stockholder in the corporation known as Texas Yummers, and that he was not authorized to act as an investment counselor, which was not a part of the firm’s law business. At no time did anyone indicate to the plaintiffs that Lyon was acting in any capacity other than as an attorney or that he was acting separate from the law firm of which he was a partner. The Texas court quotes from Croisant v. Watrud, 248 Or. 234, 242-43, 432 P.2d 799 (1967), where it is said:
“The reasonableness of a third person’s belief in assuming that a partner is acting within the scope of the partnership should not be tested by the profession’s own description of the functions of its members. . . . Whether a third person’s belief is reasonable ... is a question which must be answered upon the basis of the facts in the particular case.”
The Brundidge court, 533 S.W.2d at 757-59, reviewed several cases involving the liability of a professional partnership. It then said:
“Surprisingly, also, only two of the jurisdictions, California and Wyoming, considered the problem in the light of their respective uniform partnership acts which, in our view are particularly relevant, if not controlling. Indeed, the conclusions we reach, later stated, rest in great measure upon provisions of the Texas Uniform Partnership Act. [Citation omitted.]
“[0]ne seeking to charge a principal through apparent authority of an agent must prove such conduct on the part of the principal as would lead a reasonable prudent person to suppose that the agent had the authority he purports to exercise. [Citation omitted.] The extent of authority of a partner is determined essentially by the same principles as those measuring the scope of the authority of an agent. . . .
“[I]t is not claimed either that Lyon was authorized by the partnership to act as he did in the Yummers matter or that Betty L. Cook, et al., had notice or knowledge that Lyon had no authority to act for the partnership in what he did. . . . [T]he crucial consideration in determining whether the law firm is bound by the acts of Lyon by force of the statutory provisions is whether in receiving the funds of Betty L. Cook, et al., in the sum of $60,343.25, Lyon was ‘apparently carrying on in the usual way the business of the partnership’. . . or, as also expressed, whether he was ‘acting in the ordinary course of the business of the partnership.’ . . .
“It was the burden of the law firm as the defendant-movant for summary judgment to establish as a matter of law that no fact issue stands in the way of judgment in its favor. . . . The summary judgment burden was that of establishing the negative of the statutory issues, namely, that Lyon was not apparently carrying on in the usual way the business of the law firm, i.e., was not acting in the ordinary course of its business and hence was not acting within the scope of apparent authority by force of statute. . . .
“[T]he acceptance by Lyon of the check of $60,343.25 payable to ‘Warren Lyon as Attorney for’ Betty L. Cook, et ah, together with the deposition testimony of Betty L. Cook upon which the motion of the law firm for summary judgment also relied for support, and, further, the affidavit of Betty L. Cook and that of the Illinois attorney demonstrate the existence of fact issues with respect to the statutory conditions to liability of the partnership.”
The summary judgment entered for the law firm was reversed, and the case was remanded for trial.
Mrs. Phillips asserts that there is a factual question remaining regarding whether the transactions were apparently authorized by the partnership. She claims that it is the reasonable belief of the third party concerning the existence of apparent authority that is determinative. Certainly when a lawyer is consulting with a client on legal matters in the lawyer’s office, the appearances to the client and the reasonable belief of the client are persuasive upon the issue. As the firm points out, however, the indication of authority must come from the principal. In Theis v. duPont, Glore Forgan, Inc., 212 Kan. 301, 306, 510 P.2d 1212 (1973), this court defined the apparent agent:
“ ‘An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third persons to believe to be his agent even though no authority, either express or implied, has been conferred upon him.’ ” Quoting from Greep v. Bruns, 160 Kan. 48, Syl. ¶ 5, 159 P.2d 803 (1945).
While in this case no partner in the firm told Phillips that Carson’s actions were within his authority as a partner, no one told her that his actions were not within his authority as a member of the law firm. Two of the firm’s employees, Doreen Benton and Judy Tranckino, did personal work for Mr. Carson, including preparation of the notes and mortgages herein. While Mrs. Phillips knew Mrs. Benton did personal work for Carson, no one told her that Benton’s work on this project was not as a firm employee. The fact that Benton and Tranckino did personal work for Carson was known and not objected to by the other members of the law firm. Letters from Carson to Mrs. Phillips regarding this loan were on firm stationery and mailed in firm envelopes. Using firm supplies and personnel for personal business was apparently an acceptable practice within the firm. There was no firm policy prohibiting a partner from transacting business with a client, the only restriction regarding acceptance of a client being that a partner could not represent a client if doing so would cause a conflict with other clients of the firm. Whether Carson was apparently carrying on the usual business of the partnership, or whether his wrongful acts or omissions were in the usual course of business or with the authority of his partners, under K.S.A. 56-309 and -313, are fact issues.
Under all of the facts and circumstances, we hold that the trial court erred in entering summary judgment on behalf of the partnership and the individual partners thereof, there being substantial competent evidence from which a trier of fact could find that Carson had apparent authority to prepare the notes and mortgages, and to advise Mrs. Phillips in the matter, as a part of the regular practice of law of the firm. On the record before the trial court, we cannot say as a matter of law that Carson was not acting within the scope of his actual or apparent authority as a member of the firm.
The summary judgment entered by the trial court in favor of Thelma L. Phillips and against David W. Carson is affirmed. The summary judgment entered in behalf of the partnership, Carson, Fields, Boal, Jeserich & Asner, and the individual partners of the firm, John H. Fields, David W. Boal, Gerald N. Jeserich and- Scott I. Asner, and against Thelma L. Phillips, is reversed. The case is remanded to the District Court of Johnson County for further proceedings.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the defendant, The Coca Cola Company (Coke), from an order of the Shawnee County District Court compelling compliance with interrogatories and a subpoena duces tecum issued by the Director of Revenue in connection with a hearing on an assessment of additional income tax liability. The procedural history of this matter is as follows.
The Department of Revenue conducted an audit, which resulted in an assessment of additional income tax against Coca Cola. This additional assessment was based on the Department’s conclusion that income from certain foreign subsidiaries should be taxable because of a unitary relationship between Coke and the subsidiaries. See the Uniform Division of Income for Tax Purposes Act, K.S.A. 79-3271 et seq. The taxpayer timely petitioned the director for a hearing on this assessment. K.S.A. 79-3226. A hearing was held on April 19,1983, at which time one witness testified on behalf of the taxpayer. The matter was continued, and an additional witness testified on June 7, 1983. We do not have before us the record of that hearing. There is no claim and nothing in the record to show that the record was closed, that the matter was submitted, or that the parties rested. On September 27, 1983, the director of taxation issued a subpoena duces tecum, requesting certain additional documents. Coke complied and supplied those documents. On December 30, 1983, the director issued interrogatories and another subpoena duces tecum. These were served on the company’s resident agent on January 5, 1984. The company, through counsel, responded by letter dated February 28, 1984, and received by the department on the following day. The company declined to provide the requested information, stating that upon careful consideration of the interrogatories and K.S.A. 79-3233, it “considers these interrogatories to be unlawful.” Counsel for the department responded on June 11, 1984, requesting further explanation of the company’s position, or compliance with the interrogatories. There being no response from the company, the department commenced this action on July 10,1984, by filing its application for an order compelling compliance with interrogatories and subpoena with the clerk of the District Court of Shawnee County. Coke answered, the Department moved for summary judgment, both parties briefed the issues, and on June 26, 1985, the district court issued an order compelling compliance. Coke moved for reconsideration, both parties submitted briefs or memoranda to the court, and on November 4, 1985, the court refused to reverse its order compelling compliance. From that order the company appealed.
On April 9, 1986, the Court of Appeals, by an unpublished order, dismissed the appeal as interlocutory. Coke petitioned this court for review. Finding that the sole issue before the district court, which it decided, was the enforcement of the subpoena and interrogatories issued by the director, and that the appeal was not interlocutory but from a final order, we granted review, vacated the Court of Appeals’ order of dismissal, and reinstated the appeal. See Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 309, 532 P.2d 1263 (1975).
We turn now to the issues raised by Coke in this appeal. It first contends that the interrogatories and subpoena were “untimely.” It contends that the Department’s power to issue inter rogatories and subpoenas terminated at the commencement of the hearing on April 19, 1983. We find nothing in the statutes or regulations to support this contention.
Coke contends that the Department’s power to issue subpoenas and interrogatories is the same as that of a trial court, and that such power ceases at the commencement of trial. There is no statutory bar to the issuance of subpoenas during trial. Such practice is commonplace, and we have been cited to no authority to the contrary. As to interrogatories, their issuance is usually governed in civil trials by a cut-off date for discovery, but no such cut-off date is shown to have been fixed in this proceeding.
K.S.A. 79-3233 describes the director’s powers and authorizes the director to issue subpoenas and interrogatories “to the same extent and subject to the same limitations as would apply if the subpoena or interrogatories were issued or served in aid of a civil action in the district court.” The use of interrogatories in civil proceedings is governed by K.S.A. 60-233, which permits their service on a defendant “with or after service of process upon that party.” K.S.A. 60-233 does not expressly forbid the use of interrogatories after trial has begun, nor does any case law interpreting that section. Likewise, K.S.A. 60-226(d), governing sequence and time of discovery, does not prohibit discovery after the onset of trial. K.S.A. 1985 Supp. 60-245 governs the issuance of subpoenas in civil litigation and does not expressly limit their use to the time prior to trial.
The administrative regulations are quite broad. K.A.R. 92-12-65 authorizes the director to issue subpoenas and interrogatories at “any time before or after an assessment has been made.” The trial court, in upholding the authority of the director to issue subpoenas and interrogatories in this case, relied upon Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. 120, 519 P.2d 1092 (1974), where we held that the Civil Rights Commission had the power to issue interrogatories prior to the issuance of a notice of hearing. We said:
“The investigative and reporting duties assigned to the commission, when considered in the light of the statute’s general purposes, lead us to the conclusion that the legislature did not intend to limit the exercise of the commission’s investigatory powers to the preliminary stages of the complaint procedure outlined in K.S.A. 1971 Supp. 44-1005. The commission must be free to investigate, which necessarily implies the use of its subpoena authority, if it is to carry out and give meaning to all the investigatory and reporting duties assigned it in K.S.A. 1971 Supp. 44-1004.” 214 Kan. at 124.
The trial court here viewed the interrogatories and subpoena as “simply a part of a proper ongoing audit.” This was an ongoing proceeding — the parties had not rested; the hearing had not been closed; the department was simply seeking further information or documents which it deemed pertinent to its contention that additional income taxes, based upon income of certain foreign subsidiaries operating on a unitary basis with Coke, were due the State of Kansas. Interrogatories are a simple way to gather information, much less cumbersome than the subpoena of witnesses who are called upon to bring certain documents and other exhibits with them. We agree with the statement of the trial court:
“[T]he director’s duty to ascertain the correctness of tax returns and effect compliance with the state’s tax law requires liberal construction of the Director’s investigative powers, including the power to issue subpoenas and interrogatories. For this reason, the Director’s power was not foreclosed by setting the matter for hearing, and the subpoena and interrogatories in question were timely.”
The director should be free to issue subpoenas and interrogatories within the bounds of reasonable discretion. There was no abuse of discretion here.
Next, Coke raises a due process issue. It claims that it would be denied due process if it is forced to comply because it would be denied reasonable opportunity to know the issues and the evidence relied upon by the department. The only reference to the record before the department is that contained within appellee’s brief, and that shows clearly that counsel for Coke is well aware of the issues. The hearing is not over, and if the information the director is requesting is offered in the record, Coke will have an opportunity to explain that evidence or offer other evidence if it desires to do so.
The essential elements of due process are notice and a meaningful opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, 824, 714 P.2d 975 (1986); Elkins v. Showcase, Inc., 237 Kan. 720, 728, 704 P.2d 977 (1985). Here, Coke is aware of the issues before the department, and there is no showing that it has been or in the future will be deprived of a meaningful opportunity to be heard and to present its evidence at the administrative hearing. Also, this argument was not raised in the proceedings before the district court. A point not raised before or presented to the trial court cannot be raised for the first time on appeal. See Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 6, 679 P.2d 181 (1984); Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983); and Anderson v. Overland Park Credit Union, 231 Kan. 97, Syl. ¶ 6, 643 P.2d 120 (1982).
Coke next contends that the trial court erred in finding that the material sought by the subpoena duces tecum and the interrogatories was relevant to the issue before the administrative hearing tribunal — i.e., whether there was a unitary relationship between Coke and the foreign subsidiaries, or whether the foreign subsidiaries were separate and discrete enterprises. The documents and information sought by the subpoena and the interrogatories appear to have a definite bearing on that issue. Coke argues that the information sought includes Coke’s secret ingredient in its various products. The Department is seeking information as to the dissemination of that information throughout the foreign subsidiaries, not the secret chemical formulae. We find that the trial court did not err in finding that the information sought is reasonably related to and relevant to the issue.
Finally, Coke contends that the interrogatories and subpoena duces tecum are unreasonably burdensome and oppressive. That issue was not raised initially by Coke in the district court. In its initial memorandum to counsel, upholding the interrogatories and the subpoena, the trial court, in discussing relevancy, said:
“The subpoena and interrogatories are definite, and facially appear to have some bearing on the relationship between Coke and its subsidiaries. Accordingly, absent a showing that the subpoena and interrogatories are unreasonable or oppressive, they are proper and the order compelling compliance is sustained.” (Emphasis supplied.)
Coke then filed a motion for reconsideration in which it alleged that the requests of the subpoena and interrogatories are unreasonable and oppressive. In ruling on this motion, the trial court said:
“Defendant now claims that the interrogatories and subpoena are oppressive and unreasonable, therefore defendant should not be required to comply. Under today’s liberal discovery principles a party objecting to discovery must carry a heavy burden of showing why discovery should be denied. Blankenship v. Hearst Corp., 519 F.2d 418 (1975). Whether good cause exists to deny discovery or issue protective orders must be based upon factual data, not unsupported contentions and conclusions. Apco Oil Corp. v. Certified Transportation, Inc., 46 F.R.D. 428 (1969). Defendant has failed to carry the burden of showing good cause since no factual data has been presented to the Court. Defendant simply makes little more than general blanket allegations that the interrogatories and subpoena are broad and unreasonable. Discovery requests are not objectionable simply because they are facially broad. By its very nature, discovery is burdensome to some extent, but without more of a showing by defendant, the Court will not reverse its order compelling compliance.”
Coke now asks that the matter be remanded to the trial court so that it may make a determination on the issues of unreasonableness and oppression. The trial court has already made that determination. We have carefully reviewed the record, and conclude that the trial court did not err in finding that the requests were neither unreasonable nor oppressive.
The judgment of the Court of Appeals is reversed and the judgment of the district court is affirmed.
Prager and Allegrucci, JJ., not participating. | [
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The opinion of the court was delivered by
Luckert, J.:
Recently, in State v. Bogguess, 293 Kan. 743, 268 P.3d 481 (2012), this court held that the lack of an objection during a bench trial that consisted solely of stipulated facts did not preclude appellate review of the pretrial denial of a defendant’s motion to suppress. We explained that “when the bench trial is conducted by the same judge who presided over the hearing on the motion to suppress, there is no reason to rehash the same arguments when no additional evidence has been presented.” Bogguess, 293 Kan. at 747.
This case raises the question of whether the Bogguess holding applies when the bench trial is conducted by a different judge than the one who made the pretrial suppression ruling. We conclude that having more than one judge involved in the proceedings does not alter the two-fold rationale of the decision in Bogguess. First, a defendant’s stipulation to facts for the purpose of a bench trial precludes a defendant from asking the trial judge to ignore—in other words, suppress—evidence that a defendant has agreed can be admitted and considered. Second, because the case is tried solely on stipulated facts there will be no new evidence or arguments submitted that might change the ruling on the motion to suppress. Consequently, there is no legal or factual basis to revisit the suppression issue.
In this case, the defendant's objection to evidence was preserved, and the Court of Appeals erred in concluding it was not.
Factual and Procedural Background
Michael J. Kelly, Jr., appeals from his convictions of possession of cocaine, a severity level 4 drug offense, and possession of marijuana, a class A nonperson misdemeanor.
Before trial, Kelly filed a motion to suppress the drug evidence, arguing the drugs were seized during an unlawful traffic stop. A district judge conducted an evidentiary hearing and denied Kelly s motion.
After the district judge ruled, Kelly waived his right to a jury trial. Kelly s case then proceeded to a bench trial before a different district judge than the one who had denied Kelly’s motion to suppress. At the bench trial, the parties stipulated to the admission of a laboratoiy report and an affidavit of a detective who investigated the case. The detective recited details of the traffic officer’s arrest report, noting that Kelly had been stopped for failing to signal and had been arrested when he told the traffic officer his driver’s license was suspended. A search incident to arrest revealed substances in Kelly’s pockets that the traffic officer suspected were marijuana and cocaine. The laboratory report confirmed the suspicion. No evidence other than the laboratoiy report and the affidavit was admitted.
The trial judge stated that he had “review[ed] the content of the court file” but did not specifically mention the motion to suppress. Kelly did not mention the motion either and did not state any objections to the judge’s consideration of the evidence. The trial judge found the evidence sufficient to convict Kelly as charged.
Kelly appealed his convictions, and the Court of Appeals summarily affirmed under Supreme Court Rule 7.041 (2011 Kan. Ct. R. Annot. 59). The Court of Appeals concluded Kellys challenge was procedurally deficient under State v. King, 288 Kan. 333, 204 P.3d 585 (2009), due to a lack of an objection as required by K.S.A. 60-404.
Kelly sought this court’s review of the Court of Appeals’ decision, arguing K.S.A. 60-404 only requires a “timely” objection and he timely objected by filing a motion to suppress. According to Kelly, a subsequent objection during trial was unnecessary because the issue of guilt was submitted to the trial judge on the basis of stipulated facts. In other words, there was no new evidence relating to the suppression issues and no opportunity for the trial judge to hear anything that would cause the pretrial ruling to change.
This court accepted review and has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).
Analysis
This court’s decision in King, 288 Kan. 333, which served as the basis of the Court of Appeals’ summary affirmation of Kelly’s convictions, considered the application of K.S.A. 60-404, which states:
“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 malee clear the specific ground of objection.”
Although the statute is worded in terms of an objection that is “timely interposed,” caselaw frequently uses the term “contemporaneous objection” to describe the preservation requirement. In King, using tire term “contemporaneous-objection rule” to refer to K.S.A. 60-404, we explained the purpose of the rule, stating:
“[T]he objection requirement is a ‘salutary procedural tool’ that gives the district court ‘die opportunity to conduct the trial without using ... tainted evidence, and tiius avoid possible- reversal and a new trial.’ [This court has] . . . noted that the contemporaneous-objection requirement is ‘practically one of necessity if litigation is ever to be brought to an end.’ [Citation omitted.]” King, 288 Kan. at 342.
Other statutoiy provisions are also aimed at reducing the risk of presenting tainted evidence at trial. One of these provisions, K.S.A. 22-3216(3), is particularly relevant in this case. K.S.A. 22-3216(3) provides that a motion to suppress illegally seized evidence “shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of tire ground for the motion, but the court in its discretion nray entertain the motion at the trial.” In considering the motion to suppress illegally seized evidence, the “judge shall receive evidence on any issue of fact necessary to determine the motion.” K.S.A. 22-3216(2).
We have not viewed the requirements of K.S.A. 60-404 and K.S.A. 22-3216 as mutually exclusive. This court has generally treated motions to suppress like other preliminary or in limine orders and held that an objection must also be made at trial in order to satisfy the requirements of K.S.A. 60-404, even though a pretrial ruling has been obtained. E.g., State v. Houston, 289 Kan. 252, 270-71, 213 P.3d 728 (2009).
In Houston, we explained the reasons for requiring an objection at trial, stating, in part:
“Among other advantages, this holding allows a court to rale on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared—after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41-42, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984) (in limine ruling ‘is subject to change when the case unfolds’).” Houston, 289 Kan. at 270.
We have also explained that a pretrial ruling is not sufficient because the “materiality of the proposed evidence may not become actually apparent until other evidence has been admitted.” State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989); but see State v. Hollingsworth, 289 Kan. 1250, 1260-61, 221 P.3d 1122 (2009) (Johnson, J., dissenting) (noting that K.S.A. 60-404 does not require a defendant to renew an objection at trial). In other words, a pretrial objection by itself is not timely because the evidence may be different from that submitted at the pretrial hearing or the evidence may be viewed differently by the judge in the context of all of the evidence and argument heard at trial.
As we explained in more detail in Bogguess, this court had not previously considered whether these same considerations apply when a case is tried on stipulated facts to a judge. We concluded they did not. In doing so, we explained that when a case is tried solely on stipulated facts, there is no basis for the judge to recon sider a pretrial ruling because the defendant has waived the right to dispute the evidence. Bogguess, 293 Kan. at 745 (citing State v. Downey, 27 Kan. App. 2d 350, 359, 2 P.3d 191, rev. denied 269 Kan. 936 [2000]). Hence, the trial judge does not have the opportunity to reconsider the pretrial ruling. Additionally, because no witness testifies, the evidence will not unfold in a manner different from that already considered. In essence, the record at the time of the threshold consideration is the only record that will be made on the issue. As a result, requiring a trial objection would be futile, and the pretrial objection is a timely interposed objection that is sufficient to preserve the issue for appeal under K.S.A. 60-404. Bogguess, 293 Kan. at 747.
At oral argument, the State recognized the recent holding in Bogguess but argued we should not extend the holding beyond the facts in that case or those in State v. Bastian, 37 Kan. App. 2d 156, 150 P.3d 912 (2007), in which the Court of Appeals had reached the same holding as this court reached in Bogguess. There are three potential distinctions between Bogguess, Bastían, and this case: (1) in Bogguess and Bastían, one judge presided over both the pretrial motion to suppress and the trial as compared to this case where a different judge handled each stage; (2) Bogguess’ counsel explicitly mentioned a desire to appeal as a reason Bogguess was waiving the right to trial by jury, but Kelly’s counsel did not; and (3) at sentencing, Bogguess’ counsel mentioned the plan to appeal the suppression ruling, but Kelly’s counsel did not. We conclude none of these differences are significant to the holding in Bogguess or Bas-tían or to the rationale supporting the holding.
First, having more than one judge involved does not change the fact that a trial judge considering stipulated facts does not have the opportunity to reconsider a pretrial suppression ruling. A defendant’s stipulation precludes a defendant from asking the trial judge to suppress evidence because a defendant has agreed the evidence can be admitted and considered. Bogguess, 293 Kan. at 745; Downey, 27 Kan. App. 2d at 359. As a result, a trial objection would be unnecessary—as opposed to being timely interposed as required by K.S.A. 60-404—because it would contradict the stipulation.
The second difference between Bogguess and this case is that Bogguess’ counsel specifically stated that Bogguess did not want to put the victim’s family through a trial but wanted to appeal. Because the same judge presided over all the proceedings in Bog-guess, the judge was aware of these statements. In contrast, in Kelly’s case, immediately after a district judge denied Kelly’s pretrial suppression motion, Kelly’s counsel advised the judge that she had told the prosecutor before the suppression hearing that “if the Motion to Suppress was not successful, that we intended to waive the jury trial.” Kelly’s counsel then asked the district judge to make a record of the waiver and to set the matter for bench trial. Counsel did not mention a plan to appeal.
The differences in the statements made by Bogguess’ counsel as opposed to those made by Kelly’s counsel are not significant to our analysis. It is not necessary to make an announcement during trial that an appeal is planned in order to preserve a right to appeal an issue. Moreover, while Kelly’s counsel could have announced this intent at trial, counsel still could not have asked the trial judge to suppress the evidence after Kelly had stipulated to its consideration. Further, there is no indication anyone was misled as to the purpose of the proceeding or the intent to preserve appellate rights.
Kelly, like Bogguess and innumerable other defendants proceeding to trial on stipulated facts, understood a conviction was almost certain. Yet, electing to have a bench trial preserved Kelly’s right to appeal the motion to suppress and any other legal issues without a jury trial. In contrast, had Kelly waived his right to a jury trial by entering a guilty or no contest plea, he would have waived his right to appeal most issues relating to his convictions, including the suppression issues. See K.S.A. 2011 Supp. 22-3602(a) (“No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.”). Because of the limitations on the right to appeal imposed by K.S.A. 2011 Supp. 22-3602(a), exercising a right to a bench trial on stipulated facts is commonly understood to be a mechanism to preserve legal issues for appeal in a situation where there are no factual defenses or, at least, no factual defenses that are likely to succeed. Given the foreseeability of conviction, a defendant makes the decision to forego the expense and rigors of a jury trial while preserving legal issues for appeal. Ironically, the Court of Appeals’ decision in this case exposes Kelly to additional costs and burdens by setting up the scenario where Kelly will be required to pursue a K.S.A. 60-1507 claim of ineffective assistance of counsel for failing to preserve the suppression issue and then pursue the legal issue. These additional burdens are not required by K.S.A. 60-404 where a timely objection had been made and the purpose of the procedure was understood.
The final difference between Bogguess and this case relates to statements made or not made at the time of sentencing. At Bog-guess’ sentencing hearing, his counsel stated, “I would just like to reiterate our objection to the inclusion of his statements in any of the Court’s decision making.” Bogguess, 293 Kan. at 745. Counsel again stated he was trying to preserve the motion to suppress. In contrast, at Kelly’s sentencing hearing, his counsel did not make a similar statement. The sentencing judge in this case, who was a different judge than the one who heard the motion to suppress or tire one who conducted the trial, stated: “[Y]ou had a bench trial in this case and there are some appeal rights that you have that are your right to pursue if you wish.” This review of rights was generic, however, and not specifically tied to the suppression issue as it was at Bogguess’ hearing.
Again, however, this procedural difference is not relevant to the reasons we have held the objection need not be restated at trial. Granted, we have considered posttrial motions timely in some circumstances. For example, in State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976), superseded by statute on other grounds as stated in State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001), we concluded an objection stated after a bench trial but before the judge had ruled was timely interposed because “the spirit if not the letter of the contemporaneous objection rule was satisfied.” In Bogguess’ case, however, the trial court had found him guilty before the objection was restated at the sentencing hearing. Conse quently, an objection to trial evidence stated at sentencing was not timely.
In summary, there is no persuasive basis to reach a result in this case that differs from the result in Bogguess. Consequently, we hold that Kelly timely interposed an objection to the admission of evidence by filing a pretrial motion to suppress illegally obtained evidence, and in doing so he satisfied the requirements of K.S.A. 60-404 despite his failure to reiterate tire basis of his motion during the bench trial on stipulated facts. Consequently, we reverse the Court of Appeals’ decision to summarily affirm Kelly s convictions. We remand Kelly s appeal to the Court of Appeals for consideration of whether the district judge erred in denying his motion to suppress.
Reversed and remanded to the Court of Appeals with directions.
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The opinion of the court was delivered by
Johnson, J.:
On direct appeal of his conviction for the aggravated robbery of a Target store employee, Douglas Plummer raised the issue of whether the district court committed reversible error by refusing to give the jury a lesser included offense instruction on the crime of simple theft. A panel of the Court of Appeals found that the refusal to give tire theft instruction was reversible error and remanded the case to the district court for a new trial. State v. Plummer, 45 Kan. App. 2d 700, 251 P.3d 102 (2011). The State petitioned for our review of that decision, claiming that the Court of Appeals applied an incorrect standard of review and arguing that the particular facts of this case, as well as the skip rule, dictate an affirmance of the trial court’s refusal to instruct on theft. Finding that the Court of Appeals reached the correct result, we affirm its decision to reverse and remand for a new trial.
Factual and Procedural Overview
The alleged victim of the aggravated robbery was Tony Schwa-buer, who at the time of the incident was performing his duties as security officer for the Target store where the crime occurred. Prior to the confrontation, the security officer had observed Plum-mer inside the store for over 2 hours, during which he took merchandise from the shelves in several locations. Some items were left in different locations throughout the store, but for many of the items, Plummer removed the tags or packaging and stuffed them into his pockets or into a backpack he had picked up in the store for that purpose.
The security officer waited to take any action until Plummer had passed the checkout cash registers without paying. Between the two sets of doors at the front of the store, the security officer made contact with Plummer, identified himself as a store employee, explained that he was aware of the stolen items, requested that Plum-mer stop, and then placed his hand on Plummer’s shoulder. Plum-mer allegedly reacted by swinging at the security officer, and a scuffle ensued. The engaged combatants made their way out of the store and onto the parking lot, where other Target employees came to assist the security officer in subduing Plummer. Both Plummer and the security officer sustained scratches and scrapes as a result of the altercation.
Plummer was charged with aggravated robbeiy under the theory that Plummer had taken Target’s property from the security officer by using force that caused bodily injuiy. At the close of the State’s case, Plummer filed a motion for judgment of acquittal on the aggravated robbeiy charge. He argued that he did not obtain possession of any of the items of merchandise through the use of violent force, as required for an aggravated robbeiy conviction under K.S.A. 21-3427. Rather, Plummer asserted that tire physical contact with the security officer occurred after he had peaceably obtained possession of the items, i.e., he only used force to resist arrest for the completed theft. The district court denied the motion because of its belief that Plummer had not completed the theft while he was still on Target property. The trial court opined that support for its ruling could be found in State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998), State v. Moore, 269 Kan. 27, 4 P.3d 1141 (2000), and Steward v. State, No. 95,994, 2007 WL 959623 (Kan. App. 2007) (unpublished opinion).
During the juiy instructions conference, defense counsel requested instructions on the lesser included offenses of robbery and theft. The court granted the request for the robbeiy instruction but refused to instruct the jury on theft. Again, the district court concluded that Plummer, at the time of the physical altercation with the security officer, had not completed the requisite taking of the property to support the theft charge. Ultimately, the jury convicted Plummer of aggravated robbery, and the court sentenced him to 233 months in prison.
Plummer directly appealed to the Court of Appeals, and the panel concluded that the district court had erred in refusing to give the requested theft instruction. Relying heavily on State v. Saylor, 228 Kan. 498, 500-01, 618 P.2d 1166 (1980), the panel determined that a juiy could have concluded that the taking was complete before Plummer tangled with the security officer. Plummer, 45 Kan. App. 2d at 707-08. The panel specifically noted that the question of when a thief s taking of the victim’s property was completed constitutes a factual determination to be made by the jury. 45 Kan. App. 2d at 711. Accordingly, the panel ordered reversal of the conviction and remand for a new trial.
The panel also addressed the State’s claim that the skip rule precluded reversibility in this case. The Court of Appeals opined that the slap rule is not so much a hard and fast rule as it is a guideline for determining whether the defendant suffered any prejudice from the omission of a lesser included offense instruction. Applying the concept in this case, the panel observed that the jury’s selection of aggravated robbery over the lesser included offense of robbery simply established that the jury believed that the security officer had sustained actual bodily injury in the physical confrontation with Plummer. That decision shed no light on how the jury would have decided the question of whether the theft was complete before the physical altercation commenced, i.e., whether the jury would have convicted Plummer of theft in lieu of aggravated robbery, if given the choice. As such, the Court of Appeals found that the skip rule could not save the district court’s instructional error in this case. 45 Kan. App. 2d at 711-12.
Standards of Review and Analytical Process
The State’s petition for review suggests that the Court of Appeals applied an incorrect standard of review. The standard of review and analytical process applied by the panel is summarized in the opinion’s first syllabus:
“When a criminal defendant has requested a juiy instruction that the trial court declines to give, that failure is reviewed as a question of law. The appellate court gives no deference to the trial court’s decision. A trial court has an obligation to instruct on any lesser included offenses supported in the evidence and must review that evidence in a light most favorable to the defendant for that purpose. An instruction should be given even if the evidence supporting that lesser offense is weak or inconclusive. If a juiy might return a verdict for the defendant on the lesser offense, even though that outcome seems unlikely or remote, the trial court’s failure to give the requested instruction creates reversible error.” 45 Kan. App. 2d 700, Syl. ¶ 1.
The State does not favor us with an argument as to why any specific portion of the Court of Appeals’ recitation is erroneous. Rather, the State simply contends that the correct standard for appellate review of the failure to give a requested lesser included offense instruction is whether the evidence, viewed in the light most favorable to the defendant, supported the instruction. Curiously, the State’s proffered standard of review sounds quite similar to the Court of Appeals’ statement that “[a] trial court has an obligation to instruct on any lesser included offenses supported in the evidence and must review that evidence in a light most favorable to the defendant for that purpose.” 45 Kan. App. 2d 700, Syl. ¶ 1.
Nevertheless, we believe that neither the Court of Appeals nor the State recites a completely accurate description of the standard of review or the test for reversibility that should be applied when reviewing a district court’s refusal to give a requested lesser included offense juiy instruction. That shortcoming is certainly understandable, given that our appellate courts have not always been crystal clear or consistent in identifying standards of review or in distinguishing them from tests for reversibility when dealing with instruction issues. Although we discern that the imprecise standard of review statements in prior decisions likely had little effect on the outcome of those decisions, we will humbly endeavor to set forth an analytical framework with accompanying standards of review and tests for reversibility that might promote more consistency in the future.
Often, an appellate court’s first inquiry focuses on reviewability, i.e., whether the particular issue falls within tire court’s scope of review. For instance, the right of appeal is only a statutory right; an appellate court only acquires such jurisdiction to entertain an appeal as is prescribed by statute. See State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). Further, appellate courts ascribe to certain prudential rules of preservation, generally declining to consider issues which have not been raised before the trial court. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). In K.S.A. 22-3414(3), the legislature has set forth specific statutory provisions addressing the appeal of claims of error involving the giving or failing to give an instruction, including a lesser included offense instruction. That statute requires an appropriate and timely objection to the challenged instruction in order to avoid being constrained to only appealing clearly erroneous instructions. Here, that constraint is not applicable.
Next, the inquiry turns to a review of the merits of appellant’s claim, commencing with a determination of whether the requested instruction was legally appropriate. For instance, a lesser included offense instruction would be inappropriate if the described lesser crime is not legally an included offense of the charged crime, i.e., as a matter of law, a lesser included offense instruction must contain a lesser included offense. Moreover, an instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm. Under this step, the appellate review is unlimited, as with all questions of law. See, e.g., Iron Horse Auto, Inc. v. Lititz Mut. Ins., 283 Kan. 834, 838-39, 156 P.3d 1221 (2007) (statutory interpretation and insurance contract interpretation are questions of law subject to unlimited review); see also State v. Gallegos, 286 Kan. 869, 872-73, 190 P.3d 226 (2008) (whether a crime is a lesser included offense is a question of law subject to unlimited review).
Next, even if the instruction is legally appropriate when viewed in isolation, it must be supported by the particular facts of the case at bar. For instance, pursuant to the language of K.S.A. 22-3414(3), a lesser included offense instruction is only required “where there is some evidence which would reasonably justify a conviction of some lesser included crime.” Therefore, a district court does not err in refusing to give a lesser included offense instruction on a crime which is unsupported by the evidence in that particular case. Such an inquiry is closely akin to the sufficiency of the evidence review frequently performed by appellate courts in criminal cases where “ ‘the standard of review 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. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710, 175 P.3d 861 [2008]). Of course, where the defendant has requested the lesser included offense instruction, the evidence should be viewed in the light most favorable to the defendant. See State v. Jones, 279 Kan. 395, Syl. ¶ 1, 109 P.3d 1158 (2005). But deference is given to the factual findings made below, in the sense that the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
If an instruction is legally appropriate and factually supported, a district court errs in refusing to grant a party’s request to give the instruction. Where we part company with the Court of Appeals is when it suggests that the trial court’s failure to give such an instruction is structural error, i.e., always reversible. Instead, we can discern no reason to foreclose the possibility that an appellate court might find the instructional error to be harmless under the facts and circumstances of a particular case. Cf. Boldridge v. State, 289 Kan. 618, Syl. ¶ 7, 215 P.3d 585 (2009) (“Structural error only occurs in very limited circumstances where errors defy analysis by harmless-error standards because they affect the framework within which the trial proceeds.”). Accordingly, we find that it is appropriate to move to the harmless error paradigm we recently set out in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011) cert. denied 132 S. Ct. 1594 (2012):
“[B]efore a Kansas court can declare an error harmless it must determine the error did not affect a party’s substantial rights, meaning it will not or did not affect the trial’s outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vaiy depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.”
In summary, for instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if tire district court erred, the appellate court must determine whether the error was harmless, utilizing tire test and degree of certainty set forth in Ward.
Refusal to Give Lesser Included Offense Instruction
The complaint/information charged Plummer with one count of aggravated robbery, in violation of K.S.A. 21-3427. The charging document specifically alleged that Plummer took merchandise from the person or presence of Tony Schwabuer by force or threat of bodily harm and inflicted bodily harm upon Schwabuer in the course of the described robbery.
The district court granted Plummer’s request to instruct the jury on simple robbery as a lesser included offense. The difference between robbery and aggravated robbery in this case was tire infliction-of-bodily harm element. In other words, a robbery conviction, in lieu of an aggravated robbery conviction, would mean that the jury did not believe that Plummer inflicted bodily harm on Schwa-buer during the robbery. The issue before us was created by the district court’s refusal to also give a lesser included offense instruction on theft, under K.S.A. 21-3701(a)(l), which is the obtaining or exerting unauthorized control over property with intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property.
As noted, the first inquiry in instruction issues is often a question of the applicable scope of review, i.e., whether the appellant has preserved the issue for full appellate review. Here, however, the State does not contend that Plummer s request for the theft instruction was noncompliant with K.S.A. 22-3414(3)’s preservation requirement, and we are not presented with a reviewability problem. Accordingly, we move to a full review of the merits.
The obvious legal challenge to the Court of Appeals’ holding that the district court erred in refusing to give the theft instruction would be to contend that theft is not a lesser included offense of aggravated robbery. But the State does not make that argument, presumably because this court found to the contrary over a quarter of a century ago. In State v. Long, 234 Kan. 580, 590, 592, 675 P.2d 832 (1984), this court reviewed the respective elements of theft and robbery and observed that “the specific intent element required to prove theft is not required to establish the elements of robbery.” Nevertheless, Long pointed out that the statute defining lesser included crimes encompassed a “lesser degree of the same crime.” K.S.A. 21-3107(2)(a). After reviewing the nature of the crime of robbery and its relationship to the crime of larceny or theft, Long held that “for the purposes of K.S.A. 21-3107(2)(a) theft is a ‘lesser degree of the same crime’ which embraces robbery.” 234 Kan. at 591-92. Moreover, we recently cited to Long for the holding that “theft is a lesser degree of larceny than robbery.” State v. Boyd, 281 Kan. 70, 94, 127 P.3d 998 (2006). Consistent with that long-standing precedent, we hold that it was legally appropriate to give a theft instruction as a lesser included offense of aggravated robbery.
But as Long observed, whether this particular defendant was entitled to an instruction on theft “is a different question,” because the duty to instruct on lesser crimes only arises “where there is evidence upon which the accused might reasonably be convicted of the lesser offense.” 234 Kan. at 592. The debate over whether the theft instruction was factually appropriate in this case highlights the existence of some equivocation or inconsistency in our prior cases as to when a theft is deemed to be complete, i.e., when a thief is considered to have successfully exerted or obtained unauthorized control over the owner’s property. The Court of Appeals explained how that determination has been applied to differentiate between theft and robbeiy:
“In some circumstances, a criminal who starts out intending to be a thief may become a robber. If the thief s effort to obtain control of the property is immediately challenged or contested and he or she brandishes a weapon or resorts to the use of force to complete the taking, the crime becomes robbery or aggravated robbeiy. In differentiating theft and robbery, the Kansas Supreme Court has stated: ‘[W]e conclude a thief does not obtain tire complete, independent and absolute possession and control of money or property adverse to the rights of the owner where the talcing is immediately resisted by the owner before the thief can remove it from the premises or from the owner’s presence.’ (Emphasis added.) Long, 234 Kan. at 586. And, as was the case in Long, when the thief uses force to complete the taking, he or she has then become a robber. Aldershof, 220 Kan. at 800 (For robbeiy, ‘the violence or intimidation must precede or be concomitant or contemporaneous with the taking.’). Conversely, if the thief has already exercised dominion over the property and uses force to flee or otherwise avoid apprehension, he or she has not committed robbery. 220 Kan. 798, Syl. ¶ 3 (’Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape.’).” Plummer, 45 Kan. App. 2d at 705-06.
The State contends that while Plummer was in the Target store, he could not have exerted unauthorized control over merchandise because every shopper is authorized to take an item off a store shelf and can even put it in the shopper’s pocket. According to the State, “[tjhe taking of the item does not occur until a person passes the point of sale and begins to exit the store.” Curiously, the State’s suggested test appears to support Plummer’s position. He had bypassed the checkout cash registers and had gone through the first exit door before he was stopped by the security officer, so that under the State’s definition, a taking had occurred before Plummer used any force, i.e., the theft was completed.
Nevertheless, the State’s suggestion that, as a matter of law, a customer cannot obtain the requisite dominion and control over property to effect a theft while still shopping inside a store is bebed by some of our prior decisions. In State v. Saylor, 228 Kan. 498, 500-01, 618 P.2d 1166 (1980), we held that “where a customer in a self-service store conceals on his person, or in a box or receptacle, property of the store and has the requisite specific criminal intent, that customer has committed a theft.” 228 Kan. at 500-01. The State’s attempt to distinguish Saylor on this point is unavailing, given our prior decision in State v. Knowles, 209 Kan. 676, 678, 498 P.2d 40 (1972).
In Knowles, a shopper was looking at a number of firearms that a clerk had placed on a counter. The shopper placed a gun under his coat and then in his pocket while still at the firearm counter. Another store clerk observed the shopper’s activities and immediately confronted the shopper, confiscated the gun while still in the store’s firearm department, and later called the police. In finding that the shopper was amenable to being convicted of a completed theft, Knowles declared: “ ‘Theft’ under the present statute, unlike ‘larceny’ under the old, requires no asportation to complete the crime. All that is required is the (here unauthorized) control, coupled with the intent to deprive the owner permanently of his possession, etc.” 209 Kan. at 678.
Those holdings would suggest that the focus should be on the level of control a customer is permitted to exercise over merchandise in a self-service store. As the State contends, customers are obviously authorized to possess merchandise while shopping for the purpose of presenting items for payment and completion of a sale. However, file store does not grant its customers the authority to remove items from their packaging and/or to conceal them to facilitate their removal from the store without paying for them. Such acts constitute the exertion of unauthorized control over the property, which, when coupled with the requisite mens rea, completes a theft.
Granted, the State can point to some language in our prior cases to support its position that Plummer had to leave the Target store and perhaps the parking lot to complete the theft. Generally, our cases have agreed that the test for determining whether a defendant has committed a theft or a robbery “should be whether or not the taking of the property has been completed at the time the force or threat is used by the defendant.” State v. Aldershof, 220 Kan. 798, 803, 556 P.2d 371 (1976). But the application of that test has not always been consistent, as we observed back in 1984:
“Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed. Some of tire cases imply a taking is not complete until the property has been removed from the premises of the owner, whereas others indicate the taking is accomplished at the moment the thief, with the intent to steal, removes the property from its customary location.” Long, 234 Kan. at 583.
Unfortunately, since Long, our cases have continued to use language that could suggest that the completion of a theft entails an asportation of the stolen goods off of the owner’s property. In State v. Dean, 250 Kan. 257, 260, 824 P.2d 978 (1992), this court recited Long’s conclusion that “a thief does not obtain complete independent and absolute possession and control of property adverse to the rights of the owner when the taking is immediately resisted by the owner before the thief can remove it from the premises or from the oioners presence.” (Emphasis added.) But the facts in Dean suggest that the result was compelled by the timing of the taking, rather than the physical location of the defendant.
The incident in Dean occurred in a bygone era when gasoline station owners provided full service at the pump. Dean ordered 3 dollars worth of gasoline, and the owner proceeded to pump it into Dean’s vehicle. When the owner returned to the driver’s window to collect the money, Dean said he did not have the money and made a gesture as if he had a weapon. The owner, believing he was about to be shot, jumped away from the vehicle. Dean then drove away from the station. The owner called the police, and Dean was later apprehended.
It would appear that the determination in Dean that the facts supported a robbery charge, rather than a theft charge, should have been more straightforward than struggling over the level of dominion and control that Dean had exerted on the gasoline in his vehicle. Robbery requires that the “taking of property” be accomplished “by force or by threat of bodily harm.” K.S.A. 21-3426. Here, the station owner intentionally and voluntarily pumped the gasoline into Dean’s automobile, so that Dean was authorized to possess the property at that time, i.e., Dean had not obtained unauthorized control over the property as required to complete a theft. Moreover, Dean had not taken anything by force or threat at that point. It was only when Dean threatened the station owner, rather than hand him 3 dollars, that a “taking” took place and Dean’s control over die gasoline became unauthorized. The temporal con currence of the taking and the threat of bodily harm is what made the incident fit the statutory definition of a robbery when it did, not that the incident occurred before Dean crossed the station’s boundary line.
But we are not called upon in this case to determine whether the evidence was sufficient to support the aggravated robbery conviction. Rather, the question is whether “there is some evidence which would reasonably justify a conviction” for theft as a lesser included crime. K.S.A. 22-3414(3). We have no problem finding that Plummer’s acts of removing items from their packaging, concealing the merchandise in pockets and a backpack, bypassing the checkout cash registers, and passing through the first exit door were sufficient for a jury to make the factual determination that the theft was completed by the time that Plummer used force on the security officer. See Aldershof, 220 Kan. at 803 (whe&er taking complete before force or threat used by defendant must be determined from factual circumstances in each case). Accordingly, the instruction on theft as a lesser included offense was legally and factually appropriate, and the district court erred in refusing to give the instruction.
The final step is to assess whether the error was harmless. Plum-mer does not argue that the failure to give the lesser included offense instruction violated a constitutional right. Therefore, the error is reversible only if we determine that there is a “reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.” Ward, 292 Kan. at 569. As previously noted, the facts here comport with the State’s own definition of a completed theft, i.e., Plummer had passed the point of sale and was exiting the store. Moreover, the record before us presents ample support for viewing this as a shoplifting case that only escalated into a physical altercation when the security officer attempted to prevent the thief s escape. If the jury knew it could convict Plum-mer of theft, there is a reasonable probability it would have done so. Accordingly, we cannot declare the error to be harmless.
The Skip Rule
Alternatively, the State argues that, notwithstanding any duty to give a lesser included offense instruction on theft, there was no error in this case because of the skip rule. We have described the skip rule as follows: “ “When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.’ ” State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004) (quoting Easter v. State, 306 Ark. 615, 620, 816 S.W.2d 602 [1991]). The Court of Appeals provided its own characterization of the doctrine:
“The rule is not really a rule at all in the sense that it must be invariably or even routinely applied, although the State certainly suggests otherwise. It is, rather, simply a logical deduction that may be drawn from jury verdicts in certain cases. If a jury convicts of a greater offense, having been given the opportunity to consider a lesser offense, and that verdict necessarily establishes a factual element that would be legally inconsistent with an even lower offense on which no instruction were given, the defendant cannot have suffered any prejudice from the failure to give that instruction.” Plummer, 45 Kan. App. 2d at 711.
The State contends that the Court of Appeals erroneously reformulated the skip rule. Instead, the State suggests that the rule must be mechanically applied whenever a jury has rejected a higher severity level lesser included offense in favor of the charged crime. Such an application would essentially condone a district court’s failure to instruct on a less severe lesser included offense for which there was “some evidence,” even though the statute says that a “judge shall instruct the jury as to the crime charged and any such lesser included crime.” (Emphasis added.) K.S.A. 22-3414(3). There is no readily discernible reason for a court-made rule which would emasculate the clear statutory mandate to instruct on all lesser included offenses that are supported by the evidence. In contrast, as suggested by the Court of Appeals, the “rule” should be viewed as simply providing a route to harmlessness in those circumstances where the elements of the crime of conviction, as compared to a rejected lesser included offense, necessarily show that the jury would have rejected or eliminated an even lesser offense.
Here, as the Court of Appeals explained, the jury’s selection of aggravated robbery over simple robbeiy only tells us that the jury believed Schwabuer’s scrapes and scratches fulfilled the bodily harm element of aggravated robbery. “That says nothing about whether the jurors, properly informed on the law, might have concluded that Plummer completed a theft before the confrontation.” 45 Kan. App. 2d at 711.
Accordingly, the skip rule cannot save the conviction in this instance; the jury’s verdict does not logically lead us to harmlessness. Plummer’s conviction for aggravated robbery is reversed, and the matter is remanded for a new trial.
Reversed and remanded. | [
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The opinion of the court was delivered by
Rosen, J.:
Bernard Cline was convicted of premeditated first-degree murder after a jury trial. The trial court imposed a life sentence, without the possibility of parole for 25 years. He appeals two evidentiary issues.
Factual background
After work on Friday, September 21,2007, Richard Carter went to Bernard Cline’s home to help erect a tent for Cline’s birthday celebration, which was scheduled for the following day. After setting up the tent, Carter went up to Cline’s apartment. While Carter was drinking a beer on the balcony outside Cline’s apartment with Cline’s girlfriend, Vernadine Releford, Cline was playing with a remote control car in the street visible from the balcony.
Cline walked up the stairs to Carter, and they talked about the remote control car. Cline abruptly told Carter, “I’m going to kill that mother fucker.” When Carter asked for clarification, Cline pointed to his neighbor, Raymond Gutierrez, who was nearby on the balcony. Cline told Carter that Gutierrez had been stealing his electricity.
Cline went into his apartment and returned with a .22 caliber rifle, which was missing the stock. Cline ducked back into the apartment for a couple seconds, stepped out again, and shot Gutierrez. Gutierrez was sitting in a chair on the balcony approximately 5 feet away, texting on his cell phone, when he was shot in the back of the head.
Carter testified that Cline went back into the apartment and returned to the balcony without the rifle. Releford stood up and asked Cline what he had done or why he had shot the neighbor, but Cline did not answer her questions. Carter asked Cline similar questions, but Cline only replied that he had not done anything. Carter testified that Cline “took off down the steps” after their brief conversation. Carter asked neighbors to call the police, but someone was using their telephone. Carter ran toward his own apartment to call the police himself but turned around and returned to the scene when he heard sirens and saw the flashing lights of emergency vehicles.
Carter spoke to tire first police officer he saw, telling the officer where tire paramedics were needed. He initially hesitated when asked if he had seen what happened but soon told the officer what he had observed. He later went with police to headquarters and gave a complete statement. About 2 hours after going to sleep, around 4 a.m., Carter received a telephone call from Cline, who was in jail. The recorded call, the content of which was generally consistent with Carter s testimony and Cline’s statement to the police, was admitted at trial.
Officers found a .22 caliber rifle, missing the stock, under the bed in the bedroom of Cline’s apartment. Even without the missing pieces (the “butt stock assembly,” the “return spring,” and the “return spring guide”), 6 pounds of trigger pull was required to fire the rifle, which put it within the acceptable limits for this iype of weapon. A KBI forensic expert on firearms identification testified that any firearm that requires less than 2 pounds of trigger pull is an extremely light trigger, which requires special care in handling to prevent accidental discharges during testing.
Gutierrez died on September 24,2007,3 days after the shooting. The deputy coroner testified that the cause of Gutierrez’ death was the gunshot wound to the head. Gutierrez also had minor injuries to his forehead and lower lip that the deputy coroner classified as acute injuries, or injuries that occurred relatively close in time to the gunshot wound.
Cline testified that he was high on PCP, to the point that he was in an altered reality, when he shot Gutierrez. He stated that, at the time of the shooting, he had believed that Gutierrez was somehow stealing his electricity. Cline said that he dropped the .22 caliber rifle in his room, left the apartment, and drove to his mother’s house. Cline was arrested shortly after the shooting at his mother’s house.
Additional trial facts are included in the analysis of each issue. The jury found Cline guilty of premeditated first-degree murder. Cline was sentenced to life imprisonment, without possibility of parole for 25 years. Cline timely appealed.
Evidence of Special Education
During his opening statement, defense counsel stated: “The evidence is going to show that Bernard Cline is also low functioning on an intellectual level.” The State objected shortly after that comment, but on the basis that defense counsel was making statements that would require Cline to testify. Later, in opening statements, defense counsel mentioned, without objection, that Cline was playing with a toy, a remote control car, in the street, which was “consistent with the level that he functions.”
The State offered Cline’s written waiver of rights as an exhibit; the waiver was admitted without objection. In the space labeled “Education” on the waiver form, an officer wrote “Completed 10th Grade”; however, immediately under that space in an unlabeled area of the form, he wrote “Wyandotte Mental Health.” The State asked Officer Quinn the following:
“Q. . . . [0]n State’s Exhibit 36 you mention this upper portion which includes name, date of birth, biographical information?
“A. Correct.
“Q. Would you agree? There’s also a place for education?
“A. Correct.
“Q. Where does that information come from?
“A. Generally ask the person that we’re talking to.
“Q. So you ask them, what? How far did you go in school, or—
“A. Correct.
“Q. So that information came from the defendant?
“A. Yes.”
Officer Quinn testified that Cline told the officers he could not read. As a result, the officers orally read him the waiver form. The officers changed the wording on the form to indicate that the form had been read to Cline.
After the State rested, the State sought to limit Cline’s testimony regarding his education to that contained on the waiver of rights form. Cline sought to present evidence that his tenth grade education was obtained through special education classes rather than regular classes. Cline argued that the State had opened the door to this evidence by presenting evidence that he had completed the tenth grade. The State claimed this evidence was an improper as sertion of diminished capacity or an unnoticed mental defect defense.
The trial court was aware, from the earlier suppression hearing, that Cline’s intelligence quotient was measured at 57, which falls in the range of mild mental retardation. At the suppression hearing, a Larned doctor opined that an individual with this intelligence function could attain, with special education services and full support systems, about a sixth grade education. The judge ultimately ruled:
“[THE COURT]: You have a right to present the evidence as to what grade level he attained or went to. I don’t have an issue, it’s already in front of die jury that he is not able to read and write at a functional level, but we’re not going to get into special ed and any of those issues, because you’re getting into the mental disease or defect issue. He certainly has a right to explain die inconsistencies in his stray, as any defendant would.
“[DEFENSE COUNSEL]: And what if diat explanation is I’m just not that smart?
“[PROSECUTOR]: Then he can say that.
“[THE COURT]: That’s fine, but he can’t say I’m special ed.”
Cline’s testimony on his low intellectual functioning was limited to the following:
“[DEFENSE COUNSEL]: Sir, we heard evidence that you—you went to the 10th grade?
“[CLINE]: Yeah.
“[DEFENSE COUNSEL]: Can you read and write?
“[CLINE]: No.”
Cline testified at some length about his addiction to PCP and his use of PCP on the day of the shooting. Cline described the effects of PCP on him that day as making him hallucinate and unaware of his surroundings, saying, “And I don’t know what I be doing, and then I look at myself and I said what am I doing and I say I don’t know.” Cline presented expert testimony on the effects of PCP, which the doctor summarized as follows:
“PCP . . . will affect die interactions to the point in which one cell would interact with the other one, that PCP will disrupt it, and then will change how the brain then operates. It will then change how the brain sees tilings, perceives tilings, will change one’s perception of one’s self.
“That’s why they call PCP a disassociative drug, it’s because people experience disassociation. That’s a sense of separation from themselves, they cannot even perceive themselves as being themselves, for instance, one of the biggest things that happens with this drug. It is also veiy unpredictable. A lot of other things can take place.
“People’s judgment is disrupted. Sometimes they become extremely aggressive, extremely impulsive, unable to control their thoughts, ideas and impulses, and this drug will do all those land of things to people, and a variety of things. One of the reasons why this drug is never used for humans [as an anesthesia or otherwise] is because it is so unpredictable as to what people will do when they are on this drug.”
In closing arguments, defense counsel stated: “An irrational paranoia [like Cline’s continued assertions that the victim stole his electricity] would indicate to any of us who are of average intelligence, like me, that something’s wrong with this person’s mind, that that person very well could be under the influence of drugs.”
Standard of Review
“An appellate court generally reviews a trial court’s decision on a motion in limine under an abuse of discretion standard. However, óur first question when examining a district court’s admission or exclusion of evidence is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.”
“The circumstances surrounding the making of a confession or admission, including particulars regarding a defendant’s psychiatric or psychological condition, may be submitted to a jury as bearing upon tire credibility or the weight to be given to the confession or admission. A district judge has discretion to decide whether to admit evidence regarding such circumstances surrounding the making of the confession.”
“A criminal defendant against whom a confession will be admitted may be permitted to introduce expert psychological or psychiatric testimony bearing on his or her ability to respond reliably to interrogation. It is essential, however, that the testimony actually tell jurors something they would not otherwise know from their usual human .experience and that it remain hypothetical or theoretical. It must stop short of expressing the expert’s judgment on the defendant’s reliability in the specific instance of the confession submitted for the jury’s consideration.” State v. Oliver, 280 Kan. 681, Syl. ¶¶ 6-7, 9, 124 P.3d 493 (2005), overruled on other grounds by State v. Anderson, 287 Kan. 325, 197 P.3d 409 (2008).
Analysis
Cline argues that evidence of his placement in special education classes was necessary to rebut the State’s evidence that he had a tenth grade education. Cline maintains that this evidence explained why he told a wide variety of stories to the investigating police officers. The State argues that this was an attempt to improperly introduce evidence of mental disease or defect, that the evidence was not proper rebuttal, and that the State did not open the door to this evidence during the officer s testimony.
In Oliver, this court stated: “It is obvious that evidence going to the credibility to be afforded a defendant’s confession is relevant.” 280 Kan. at 693. In this case, it is perhaps a bit less obvious how Cline’s special education status explains why he told the police officers numerous stories about the shooting. The trial court ruled that Cline had the right to explain any inconsistencies in his story. The court allowed that Cline could say something like “I’m just not that smart” but Cline would not be allowed to say he was “special ed.” When cross-examined about the inconsistent stories he told police, Cline testified that the different stories were because he was “high,” “nervous,” or “scared.”
Cline’s defense at trial was voluntary intoxication. He argued that he was so high on PCP at the time of the shooting drat he was unable to form the premeditation required for first-degree murder or tire intent required for both first- and second-degree murder. Cline presented expert testimony about the effects of PCP, including the changes to the brain that affect long-term function. Whether Cline completed the tenth grade in regular classes or special education classes was not particularly relevant to this defense. Arguably, the special education testimony would have been a plea for sympathy rather than rebuttal evidence or relevant evidence.
Further, the jury heard from both Cline and the interviewing officer that Cline was unable to read the waiver form. Cline testified that he was not able to write. Even without evidence that Cline took special education classes, the juiy knew Cline did not have the basic skills one might expect from a person who completed the tenth grade. As the State argues, the jury was unlikely to presume Cline had high or even average intelligence from the evidence that he completed the tenth grade.
On the other hand, this evidence is a part of the basic background information provided by any witness. Child witnesses are routinely asked what grade they have completed and if they have mastered certain skills—reading, writing, or math skills. Adult witnesses are frequently asked about their education, even when they are not testifying as experts. A person’s educational background gives the jury an idea of how that person views and experiences the world, which helps jurors determine how much credibility to give each witness. As such, the evidence is relevant.
A trial judge has discretion to admit particulars of a criminal defendant’s mental condition if the particulars are relevant to the credibility of tire defendant’s confession. Oliver, 280 Kan. 681, Syl. ¶7.
“Judicial discretion is abused if judicial action (1) is arbitraiy, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by die trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.]” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Cline contends the trial court abused its discretion because it made an error of law by ruling that Cline could not present any evidence that related to his mental disease or defect because he had not provided notice of a mental disease or defect defense. The trial court’s decision was not that clear cut. The court ruled that Cline had the right to explain the inconsistencies in his story and drat Cline could give some indication of his intelligence if that was his explanation. The court only limited mention of special education. The court did not make a ruling on the State’s potential objections to testimony or commentary that Cline was low functioning or developmentally disabled.
Under the facts of this case, the trial court did not abuse its discretion in excluding the testimony. There are numerous reasons a student is placed in special education classes, many not pertaining to low intellectual functioning. Here, Cline did not offer any evidence or testimony that completion of the tenth grade in special education classes as opposed to any other classes had any bearing on his erratic behavior with the investigating officers. The trial court may have drawn the line more narrowly than necessary, but its decision was within wide range of latitude allowed for the admission of evidence.
Admissibility of Cline’s Statement
During the trial, the State played a video of Cline’s statement to police officers the night of the shooting. Cline objected to the video based on his pretrial motion to suppress his confession. During the statement, the officers reviewed several different stories Cline had given regarding Gutierrez’ shooting including: (1) Cline claimed he was being set up by his girlfriend or her brother, (2) Cline claimed his girlfriend shot the victim, (3) Cline claimed the gun went off while he was fighting over the weapon with his girlfriend, (4) Cline claimed he had simply heard a bang and saw the victim fall over dead, and (5) Cline claimed he was holding the gun when he tripped over a speaker wire and the gun went off. When the police officers tried to clarify why Cline had told them so many different stories, Cline went into a rant about the firecrackers on his table, claimed the officers were trying to confuse him, and concluded by saying he was “through talking.” The police officers immediately asked about another version of Cline’s story, and Cline answered without suggesting that he no longer wished to talk to the officers.
At the suppression hearing before trial, Officer Quinn testified that he never heard Cline say he was “through talking” during the interview. Officer Quinn stated that if Cline had said something like that, the officers would have stopped the interview because he would have invoked his right to remain silent. The trial judge stated drat he heard Cline say, “I’m through talking,” on tire video. The trial judge took the issue under advisement but “ruled” that the remainder of Cline’s statement only reiterated his earlier story that the shooting was accidental and explained that his initial lies were due to fear. Just prior to trial, the judge ruled:
“[T]he Court did take under advisement that part of the defendant's statement after it was—he reportedly stated that he was through talking.
“We did have a Denno hearing regarding that statement. The Court did allow the statement through that point. The Court has reviewed not only the statement but the applicable case law, and the detective testified under oath that he did not hear that the defendant said he was through talking.
“There was no appreciable delay in the continued questioning of the defendant at that point. He did basically reiterate and clarify what he had said up to that point. The interrogation continued only for a few more minutes, and so I do not find that the defendant reasserted his right to remain silent, and so I am going to allow that statement in the entirety.”
Standard of Review
“A determination that a statement was freely, voluntarily, and intelligently given will be upheld if there is substantial competent evidence to support such a conclusion. In making the factual review, the appellate courts will not reweigh the evidence and will give deference to the factual findings of the trial court. The legal conclusion drawn from those facts is subject to de novo review.
"Under Miranda, a suspect must unambiguously request counsel so that a reasonable police officer in tiróse circumstances would understand the statement to be a request for an attorney. The same rule applies to the right to remain silent. When a suspect makes a statement which is ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may but is not required to ask clarifying questions and may continue the questioning.” State v. Holmes, 278 Kan. 603, Syl. ¶¶ 2, 4, 102 P.3d 406 (2004).
Analysis
During pretrial motions, the trial court found that Cline’s statements were voluntary considering the totality of the circumstances. The court specifically considered Cline’s low intellectual functioning, substance use, behavior on camera, ability to respond to questions, and the consistency of Cline’s story, as well as the fact that the officers read the Miranda warnings and wavier of rights individually to Cline more than once. The court considered the testimony of the Lamed doctor, who said that Cline was able to articulate an understanding of his Miranda rights. On appeal, Cline challenges only the admission of the portion of his statement given after he stated he was “through talking,” rather than the voluntar-iness of his entire statement.
The trial court watched and listened to the video of Cline’s interview and reviewed the disputed portion more than once. The interviewing police officer testified that he did not hear Cline say he was “through talking,” either during the interview or while reviewing the video. The trial court found that Cline did say, “I’m through talking.” Before trial, the court found that Cline only reiterated and clarified his earlier statements in the few minutes of the interview after he said he was through talking and there was no delay between the disputed comment and subsequent questioning. The trial court did not make a specific finding whether Cline invoked his right to remain silent; instead, the court jumped ahead to consider the subsequent statements.
In determining whether an invocation of a defendant’s right to remain silent was clear and unambiguous, only the defendant’s prior statements and the defendant’s alleged statement of invocation maybe be considered. State v. Donesay, 265 Kan. 60, 67, 959 P.2d 862 (1998) (citing Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 [1984]). The defendant’s post-invocation statements are not relevant to this determination. Donesay, 265 Kan. at 67. Here, the trial court erred by jumping ahead to consider Cline’s statements after he stated he was through talking.
The State argues that any error in admitting these subsequent statements was harmless. The trial court found that after Cline made the disputed statement, he only repeated his previous description of events and stated that he lied to the police officers initially because he was scared. At trial, Cline testified that he told the officers various versions of his story because he was scared. Finally, the State alleges there was overwhelming evidence of Cline’s guilt, including eyewitness testimony, the weapon recovered from under Cline’s bed, and the shell casing found on the ground below the balcony. Regardless of whether Cline invoked his right to remain silent, we accept the trial court’s finding that the final 3 and ½ minutes of the interview consisted of nothing more than repetition of Cline’s earlier statements and was not prejudicial.
Our decision in Ward, 292 Kan. at 556-65, synthesized and clarified our caselaw on the definition and application of the harmless error standard applied to claims of constitutional error, concluding:
“[BJefore a Kansas court can declare an error harmless it must determine the error did not affect a party’s substantial rights, meaning it will not or did not affect the trial’s outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether tire error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.” Ward, 292 Kan. at 565.
The State, as the party benefitting from the error, has the burden of proving the error was harmless. Ward, 292 Kan. at 568-69. The State has proven beyond a reasonable doubt that any error in the admission of these statements did not affect Cline’s substantial rights and did not contribute to the verdict obtained. Therefore, we conclude that any error was harmless.
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The opinion of the court was delivered by
Miller, J.:
Arlene Y. Wilson appeals from her conviction by jury trial in Sedgwick County District Court of murder in the second degree, K.S.A. 21-3402. We reverse.
The problem in this case arose when the information was filed. It charges that in Sedgwick County, Kansas, on or about September 14, 1985,
“Arlene Y. Wilson did then and there unlawfully, wilfully kill and murder one Polly A. Stone by stabbing her in the chest with a knife, inflicting wounds of which the said Polly A. Stone did die on September 14, 1985.”
The information purports to charge murder in the first degree, K.S.A. 21-3401.
In Kansas, all crimes are statutory. The elements necessary to constitute a crime must be gathered wholly from the statute. State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966). An information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective and a conviction of that offense must be reversed. The evidence introduced at trial to show commission of the crime sought to have been charged, and the jury instruction thereon, have no bearing on this question. State v. Jackson, 239 Kan. 463, 466, 721 P.2d 232 (1986), quoting from State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979).
Murder in the first degree is defined by K.S.A. 21-3401 as a killing of a human being committed maliciously, willfully, deliberately, and with premeditation. Here, there is no charge that the killing of Polly Stone was done maliciously, deliberately, and with premeditation. The information does not charge murder in the first degree.
Murder in the second degree is defined by K.S.A. 21-3402 as “the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.” The information does not charge that the killing of Polly Stone was done maliciously, without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony, and thus the information does not charge murder in the second degree.
Voluntary manslaughter is defined by K.S.A. 21-3403 as “the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.” The information does not charge that the killing of Polly Stone was done intentionally upon a sudden quarrel or in the heat of passion. The information does not charge voluntary manslaughter,
K.S.A. 1985 Supp. 21-3404 defines involuntary manslaughter as the unlawful killing of a human being, without malice, “which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.” The information here does not charge that the killing of Polly Stone was done “unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.” Clearly, it does not charge involuntary manslaughter.
Thus, this case went to trial upon an information which does not charge any degree of criminal homicide under the laws of this state. The State contends that the information was amended during trial to charge murder in the first degree. At one point the prosecuting attorney indicated a desire to amend the information. He made no motion in writing, and no oral motion on the record. He simply asked the court: “These other motions and my formal amendment to the Complaint, can we take that up before the jury tomorrow?” The trial judge responded, “I still think there needs to be something in the evidence which would justify the amendment before that is determined.” Sometime later during the trial, defense counsel stated to the court, “[W]e feel that the Court should not amend the information to a premeditated murder.” The prosecutor remained silent. The court then ruled, “The State’s motion to amend to conform to the evidence is sustained.” The State never filed an amended information; the prosecutor never stated on the record the substance of or the precise wording which the State wished to include in or strike from the information; and the prosecutor never made an amendment by interlineation. The record is silent as to exactly what change the prosecutor wished to make. We hold that the information was never amended.
Where leave is granted to the prosecution to amend an information, the amendment must be made either (a) by filing an amended information, or (b) by striking out or writing in the pertinent matter by interlineation upon the document on file.
Informations are required to be in writing, and may be amended at any time with leave of court before verdict or finding “if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” K.S.A. 1985 Supp. 22-3201(2) and (4). Here, an amendment to charge an offense could not have been made without charging an “additional or different crime.” An information which does not charge any offense cannot be amended over defense objection to first charge an offense during trial.
Defendant’s conviction of murder in the second degree, a crime with which she was not charged, must be set aside. The trial court had no jurisdiction to try her or to convict her of an offense when she was not charged with any offense under the laws of this state.
One further matter requires our attention. The trial court instructed the jury on first-degree premeditated murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. The instruction given on voluntary manslaughter was particularly troublesome.
PIK Crim. 2d 56.05 is the pattern instruction on voluntary manslaughter. The trial court first instructed on first-degree premeditated murder and murder in the second degree. In both of those instructions, the jury was properly instructed that to establish the offense, it must be proved that the killing was done maliciously. The jury was also properly instructed that the burden was on the State to prove the defendant guilty.
The trial court then instructed on voluntary manslaughter, but it made several changes in the pattern instruction, PIK Crim. 2d 56.05. It inserted the element of “without malice,” thus advising the jury that the burden was on the State to prove “with malice” (first- and second-degree murder) and to prove “without malice” (voluntary manslaughter). While the trial court was correct in its statement that voluntary manslaughter is a killing without malice, this instruction as given, considered in the light of the other instructions, was confusing. Both the prosecutor and defense counsel objected to the instruction given by the court.
One other jury instruction requires comment. The trial court, in an instruction similar to PIK Crim. 2d 52.08, instructed the jury on the burden of proof on the defense of self-defense. Again, over the objection of both the prosecutor and defense counsel, the trial court deleted from that instruction the sentence: “The State’s burden of proof does not shift to the defendant.” The instruction as given thus lacked the clarity of the original PIK instruction and did not warn the jury that when this defense is raised, the State’s burden of proof does not shift to the defendant.
Kansas has been a leader in the preparation and publication of pattern jury instructions, both civil and criminal, for the assistance and guidance of the bench and bar. The committee on Pattern Jury Instructions of the Kansas District Judges’ Association first published pattern jury instructions for use in the trial of civil cases in 1964, and revisions of that original work have been published regularly since then. Similarly, Pattern Criminal Jury Instructions have been prepared by the same committee, serving as an Advisory Committee on Criminal Jury Instructions to the Kansas Judicial Council. Pattern Criminal Jury Instructions were first published in 1971, and these are now published in loose-leaf form and are updated annually. The advisory committee and the Kansas Judicial Council, whose membership includes many distinguished Kansas judges and lawyers, have produced a work of invaluable assistance. Reversals and the necessity of new trials in criminal cases because of error in the jury instructions are now quite rare because of the clarity and correctness, and the widespread use, of the Pattern Criminal Jury Instructions.
When pattern jury instructions are appropriate, a trial court should use them unless there is some compelling and articulable reason not to do so. A trial court, in the press of a busy trial, cannot possibly do the research and give the thought to each jury instruction that has gone into the preparation of pattern instructions by the advisory committee. Here, the jury could have been easily, clearly, and properly instructed had the trial court used the proposed pattern criminal jury instructions without modification, as requested by counsel for both the State and the defendant.
The judgment of the trial court convicting the defendant, Arlene Y. Wilson, of murder in the second degree is reversed.
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The opinion of the court was delivered by
Schroeder, C.J.:
The petitioner, Don Billy Noble, is appealing the denial of his K.S.A. 60-1507 motion.
On February 2, 1983, before Judge Floyd Van Palmer, the petitioner pled guilty to nine felony counts: one count of burglary (K.S.A. 21-3715); two counts of sexual exploitation of a child (K.S.A. 21-3516); one count of attempted sexual exploitation of a child (K.S.A. 21-3516 and 21-3301); four counts of indecent liberties with a child (K.S.A. 21-3503[l][b]); and one count of aggravated burglary (K.S.A. 21-3716). On March 30, 1983, the petitioner was sentenced by Judge Richard A. Medley. Over two years later, on May 2, 1985, the petitioner filed a motion pursuant to K.S.A. 60-1507 attacking the constitutionality of his sentence. A full hearing on the petitioner’s motion was held by the sentencing court and his motion was denied. The petitioner has duly perfected an appeal from the denial of his motion.
The petitioner asserts that, because the statutory requirements of K.S.A. 1982 Supp. 22-3210 were not satisfied when the court accepted the defendant’s guilty pleas, the petitioner must be allowed to withdraw his pleas of guilty.
The petitioner first argues the court failed to inform him of the consequences of his pleas and of the maximum penalty provided by law which may be imposed upon acceptance of the pleas; the court failed to determine that he pled voluntarily and with an understanding of the nature of the charges and consequences of the pleas; and the court failed to find a factual basis for the pleas.
K.S.A. 1985 Supp. 22-3210 sets the statutory guidelines for the acceptance of guilty pleas which are applicable to this case:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
“(1) The defendant or counsel for the defendant enters such plea in open court; and
“(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
“(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
“(4) the court is satisfied that there is a factual basis for the plea.
“(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.”
Although the statute has been amended since the petitioner pled guilty in 1983, the amendments do not involve the issues on appeal.
This statute embodies the due process requirements as interpreted by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); State v. Alsup, 239 Kan. 673, 675, 722 P.2d 1100 (1986); Trotter v. State, 218 Kan. 266, 268-69, 543 P.2d 1023 (1975). Boykin added the due process requirement that the record must affirmatively disclose a knowing and voluntary plea. Brady v. United States, 397 U.S. 742, 747-48 n.4, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). In Trotter v. State, 218 Kan. 266, this court held that failure to comply strictly with the explicit requirements of 22-3210 is harmless error if, upon review of the entire record, it can be determined the pleas were knowingly and voluntarily made. 218 Kan. at 269. Strict compliance is not mandatory if the purpose of the rule is otherwise served. James v. State, 220 Kan. 284, 287, 553 P.2d 345 (1976).
Here, the defendant entered his guilty pleas at the time of arraignment. The arraigning court did not inform the defendant of the maximum penalties which could be imposed under law.
In Underwood v. State, 214 Kan. 633, 522 P.2d 457 (1974), the petitioner argued on his 60-1507 motion that his sentence should be vacated because the trial court failed to inform him of the maximum penalty which could be imposed by law. In reviewing the record, this court noted that the petitioner’s attorney testified at the evidentiary hearing that he had informed the petitioner of the possible sentence that could be imposed according to Kansas law. The guilty plea was found to be voluntary and understandingly made.
Here, the petitioner waived a preliminary hearing and the reading of each of the separate counts. The petitioner did have a copy of the information and in the information after each charge was the classification of the crime and the minimum and maximum penalty, e.g., “Class C felony 3-5 to 10-20.” When asked by the arraigning court whether the petitioner had gone over the information in detail with his attorney, the petitioner responded, “Yes.” However, there is nothing in the record to indicate affirmatively that the petitioner’s counsel had informed him of the maximum possible sentence.
The State argues the statute was satisfied because the information was read, the penalty explained, and the petitioner given a copy of the information at his first appearance on October 19, 1982. The petitioner’s guilty plea was accepted at his arraignment February 9, 1983, nearly four months later. The Illinois court rejected a similar argument of substantial compliance in People v. Louderback, 137 Ill. App. 3d 432, 484 N.E.2d 503 (1985), where there was a five-month lapse between a defendant’s arraignment and acceptance of his guilty plea. We agree with the Illinois court and reject the State’s argument. K.S.A. 1985 Supp. 22-3210(a)(2) is not satisfied by an explanation of the penalties nearly four months before a guilty plea is accepted.
Our prior case law holds it is not necessary to comply strictly with the mandates of 22-3210 if the purpose of the statute is otherwise served. Under the facts of this case, we find the purpose of the statute requiring the petitioner to be informed of the maximum possible sentence which could be imposed by law was served. The copy of the information which the petitioner had received and had gone over in detail with his attorney contained the minimum and maximum possible sentence for each count with which the petitioner was charged. The petitioner had waived the formal reading of the information at his arraignment. Plea negotiations had been entered into with the prosecutor resulting in the prosecutor recommending a certain sentence. The prosecutor had recommended the maximum penalty on the one Class D felony and the three Class E felonies.
It is strongly recommended that satisfaction of the requirements of K.S.A. 1985 Supp. 22-3210(a)(2) show affirmatively on the record in order to reliably establish that a plea has been voluntarily and intelligently entered. However, on the facts in this case, where there has been substantial compliance, we find no prejudicial error.
Next the petitioner argues the court failed to determine that his plea was made voluntarily and with an understanding of the nature of the charges and the consequences of the plea.
The following colloquy took place at the arraignment:
“MR. HILDRETH: We are ready for arraignment today.
“THE COURT: Mr. Noble, have you talked — told your attorney, Mr. Hildreth absolutely everything about these charges from your viewpoint and held nothing back from him?
“DEFENDANT NOBLE: Yes, I have.
“THE COURT: Anything that you know about these charges at all, that Mr. Hildreth also knows?
“DEFENDANT NOBLE: Yes, Your Honor.
“THE COURT: And Mr. Hildreth has explained to you the possible responses that you might make to these charges?
“DEFENDANT NOBLE: Yes, Your Honor.
“THE COURT: And in that case, you are ready for arraignment, for the time which you make your formal response to these charges?
“DEFENDANT NOBLE: Yes.
“THE COURT: All right then, we will proceed to arraignment.
“MR. HILDRETH: We would, as far as that is concerned, waive the reading of each of the separate counts, if the Court would wish to, and in that matter, there are nine of them altogether.
“THE COURT: All right. Mr. Noble, you understand that you have the right if you wish to have the entire information read to you at this time?
“DEFENDANT NOBLE: Yes, Your Honor.
“THE COURT: So, you have the charges fully in mind?
“DEFENDANT NOBLE: Yes, Your Honor.
“THE COURT: But, you have been furnished a copy of the Information, have you not?
“DEFENDANT NOBLE: Yes.
“THE COURT: Mr. Hildreth has a copy of the Information?
“DEFENDANT NOBLE: Yes.
“THE COURT: And you have gone over that in detail with Mr. Hildreth? “DEFENDANT NOBLE: Yes.
“THE COURT: Mr. Hildreth has offered to the Court to waive, or give up the reading of each of these counts to you, and do you concur in this request? “DEFENDANT NOBLE: Yes, sir.
“THE COURT: You understand what you are charged with?
“DEFENDANT NOBLE: Yes, Your Honor.”
The court proceeded to hear the petitioner’s pleas of guilty to the nine counts. The counts were described by the court by their classification of felony and their common names. After hearing the pleas, but before accepting them, the judge inquired of the petitioner:
“THE COURT: Now, Mr. Noble, before the Court can accept a plea of guilty offered to these charges, it must be satisfied that you make these pleas for only one reason, mainly because you are, in fact, guilty — and that’s because you are guilty of what you are charged with; do you understand that?
“DEFENDANT NOBLE: Yes.
“THE COURT: Furthermore, it cannot be the result of any threats or promises of leniency or coercion of any kind.
“DEFENDANT NOBLE: Yes, Your Honor.
“THE COURT: You told me that you have discussed these charges with Mr. Hildreth and you told him absolutely everything about it from your viewpoint? “DEFENDANT NOBLE: Yes.
“THE COURT: And I am sure that Mr. Hildreth has explained to you that each and every one of these charges is made up of several essential elements? “DEFENDANT NOBLE: (Nods head affirmatively)
“THE COURT: And in order for you to be guilty of the particular charge in each count, that you must have committed each and every one of those essential elements.
“DEFENDANT NOBLE: Yes.
“THE COURT: And you stand there and tell this Court that you have, in fact, committed each and every one of those essential elements as to each of the charges?
“DEFENDANT NOBLE: Yes, Your Honor.
“THE COURT: And you are satisfied with the way that Mr. Hildreth is representing you and has represented you in this case?
“DEFENDANT NOBLE: Yes.
“THE COURT: All right. Now, Mr. Noble, Mr. Hildreth has explained to you, has he not, that if the Court accepts your plea of guilty, that you would have waived or given up many of your very important rights?
“DEFENDANT NOBLE: Yes.
“THE COURT: Chief among those, being a right to trial by jury, with the burden being upon the State to prove your guilt beyond a reasonable doubt, you understand that?
“DEFENDANT NOBLE: Yes.
“THE COURT: Secondly, the right to confront and cross-examine witnesses against you.
“DEFENDANT NOBLE: Yes.
“THE COURT: And also the right to compel the attendance of witnesses in your own behalf?
“DEFENDANT NOBLE: Yes.
“THE COURT: And the right to an appeal on all, except a very few narrow constitutional grounds, or challenge the jurisdiction of the Court, is that correct? “DEFENDANT NOBLE: Yes.
“THE COURT: And do you understand that if the Court accepts your pleas of guilty that you give up all of those rights?
“DEFENDANT NOBLE: Yes, Your Honor.
“THE COURT: You stand there, Mr. Noble, and tell me of your own free will and accord that you admit all these offenses, Counts One through Nine, as charged in the Information?
“DEFENDANT NOBLE: Yes.
“THE COURT: And that no one has made you do this under any threats or promises of leniency or any type of coercion, is that right?
“DEFENDANT NOBLE: That’s right.
“THE COURT: Mr. Hildreth, does — Do these pleas of guilty comport with your understanding of the facts in each of these instances?
“MR. HILDRETH: They do.
“THE COURT: Very well, Mr. Noble, the Court finds that the pleas of guilty to each of these counts is knowingly and intelligently and voluntarily given and the Court accepts the pleas of guilty and enters a judgment of guilt as to each of these nine counts. All right, the Court will order a pre-sentence investigation, pursuant to Statute, with report to this Court and will set sentencing for March the 30th, I believe it is.”
On appeal the defendant argues the above colloquy does not satisfy the statutory requirements because the arraigning court did not establish what the petitioner understood. The petitioner points to three things to show he didn’t understand the nature of the charges.
First, the petitioner directs our attention to his mental competency evaluation where he was found to be in the dull to normal intelligence range. The petitioner also argues that he attended special education classes during his schooling until he finally dropped out of school in the twelfth grade.
Second, the petitioner points to his responding, “I guess guilty” to the court when the court asked how he pled to count I, the burglary count, to show he didn’t understand the nature of the charges.
Third, the petitioner points to statements he made after sentencing when he gave his version of the offenses to the clinical evaluator at the State Reception and Diagnostic Center. Petitioner argues these statements (which are not part of the record but are cited in the petitioner’s brief) illustrate that he did not understand the elements of burglary as compared to aggravated burglary. The statements are: “I entered a vacant home with one of the girls. I didn’t break in. I just walked in. That means aggravated burglary in Kansas. Nothing was taken.”
The petitioner cites Outland v. State, 219 Kan. 547, 548 P.2d 725 (1976), to support his mental competency argument. There the defendant argued he was incompetent when his pleas of guilty were entered. The court accepting his pleas was aware of a report from a hospital staff psychiatrist at Larned advising the court the defendant was found to be insane at the time he committed the offenses, and that he had occasionally been treated for mental problems over the years. This court ruled that the report and other circumstances shown in the record should have alerted the trial court to the possibility of continuing insanity and should have caused the court to inquire into the defendant’s capacity to plead. 219 Kan. at 548.
The facts before us today are distinguishable. Here, the mental competency evaluation was conducted and it resulted in a finding that the petitioner was competent to stand trial and understood the nature and purpose of the proceedings against him. The report stated that although the petitioner didn’t know the exact phrasing of the charges against him, he estimated there were seven charges in all which involved “fondling girls and taking pictures.” The two charges the petitioner didn’t include were the aggravated burglary and burglary charges.
In response to the second and third incidents cited by the petitioner to show he didn’t understand the nature of the charges, the petitioner told the arraigning court he understood what he was charged with and had those charges fully in mind. To all other eight counts, including the aggravated burglary, the petitioner responded “Guilty” when asked how he pled. He had received a copy of the information and had gone over it in detail with his attorney. Each count in the information gives the name of the young child involved, which would help the petitioner to distinguish among the different counts. The confusing statements in reference to the elements of burglary and aggravated burglary were made after sentencing. The petitioner did not move to withdraw his guilty pleas after sentencing until nearly two years later.
The defendant in Henderson v. Morgan, 426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (1976), pled guilty to second-degree murder while the indictment spelled out the elements of first-degree murder. The lower court ruled the plea was involuntary because the defendant was not informed of the elements of second-degree murder, i.e., that he had to intend to cause the victim’s death. The government argued to the United States Supreme Court that if the lower court’s finding was affirmed the floodgates would be opened to challenging pleas because frequently the record will not contain a complete enumeration of the offense charged. The Court stated:
“We think petitioner’s fears are exaggerated.
“Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Emphasis added.) 426 U.S. at 647.
We find the petitioner’s pleas were made voluntarily with an understanding of the nature of the charges. The petitioner argues he wasn’t informed of the consequences of his pleas. The court informed the petitioner of and the petitioner waived his right to a trial by jury, his right to confront witnesses, his right to compel the attendance of witnesses, and his right to appeal to a certain extent. Now on appeal the petitioner argues his plea was not voluntarily and understandingly made because the arraigning court failed to inform him that by entering a plea of guilty he waived his Fifth Amendment privilege against compulsory self-incrimination. A thorough review of the petitioner’s 60-1507 motion and of the transcript of the hearing on that motion discloses that the petitioner failed to raise this argument in the trial court. The petitioner cannot raise a point on appeal that was not presented to the lower court. State v. Handley, 234 Kan. 454, 458, 673 P.2d 1155 (1983); State v. Garcia, 233 Kan. 589, 608, 664 P.2d 1343 (1983); Lill v. State, 4 Kan. App. 2d 40, 42, 602 P.2d 129 (1979). Therefore, we will not consider this point on appeal.
Next, the defendant argues the arraigning court failed to establish a factual basis for the plea. In establishing a factual basis for the plea the court must establish that all elements of the crime charged are present. State v. Calderon, 233 Kan. 87, 93, 661 P.2d 781 (1983). In James v. State, 220 Kan. 284, 553 P.2d 345 (1976), the trial court made no specific inquiry to establish a factual basis. K.S.A. 22-3210 was not yet in effect at the time the plea was accepted. The error was held not to be fatal under the principles of Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). The factual basis was established by the facts which were recited in the information read to the defendant. In Widener v. State, 210 Kan. 234, 239, 499 P.2d 1123 (1972), this court found that although the court’s inquiry as to a factual basis for the plea was skimpy the statute was satisfied. There the defendant had a copy of the information, although he had waived a formal reading of the information. The information set forth the details and essential elements of the crime. The defendant had discussed the matter with his attorney. The defendant responded, “Yes” when asked if he pled guilty because “he did in fact burglarize this concession stand.”
Here, the court did not state on the record it found there was a factual basis for the plea. However, the petitioner had a copy of the information and had gone over it in detail with his attorney. The information set forth the facts and the essential elements of the crimes charged. The petitioner indicated his attorney had explained the essential elements of each charge and represented to the court he committed “each and every one of those essential elements.” We find the record here presented establishes a factual basis for the pleas.
The petitioner next argues his pleas were not knowingly and voluntarily made because the arraigning court failed to advise him that the court was not bound by any plea negotiations before accepting his pleas of guilty.
In State v. Byrd, 203 Kan. 45, 50-53, 453 P.2d 22 (1969), this court approved the application of the ABA Standards for Criminal Administration as they relate to plea bargaining. In White v. State, 203 Kan. 687, 691, 455 P.2d 562 (1969), this court recognized the caution made in Byrd:
“By way of admonishment we cautioned that all discussions and agreements should be based upon an understanding that such agreements are not binding upon the trial judge, and that even though a guilty plea was received as a result of a prior agreement, nevertheless, the judge was free to reach his own independent decision on whether to approve any concession upon which the agreement was premised.”
The plea negotiation should be disclosed at the time the plea is entered.
“[A]s a salutary aid in determining whether a plea of guilty is voluntarily and intelligently made, we know of no reason why plea discussion resulting in a plea agreement should not be disclosed to the trial court by the parties, or why the fact should not be elicited by that court, where it exists.
“Standards 1.5 and 3.3 (b) of the Approved Draft [of the ABA Standards Relating to Pleas of Guilty] contemplate disclosure to the court of the fact of a negotiated plea. Where plea discussion has resulted in a plea agreement, we believe bringing the matter into the open at the time the plea is entered will go far in producing a determination acceptable to all that the plea was voluntarily and intelligently made. Disclosure in open court will provide additional assurance that proper safeguards have been observed once a plea of guilty has been accepted and, at the same time, tend to dispel much of the sinister aspect heretofore attached to the practice by reason of its cloak of secrecy. We commend such disclosure.” State v. Caldwell, 208 Kan. 674, 676, 493 P.2d 235 (1972).
No previous Kansas case has addressed the issue of a trial court’s failure to inform the defendant before accepting his plea of guilty that the court would not be bound by any plea negotiations. There is a split in authority from other jurisdictions that have addressed the issue. In the following jurisdictions the plea was found to be not voluntarily given when the trial court failed to advise the accused the court would not be bound by any plea agreement. People v. Willis, 39 Ill. App. 3d 288, 349 N.E.2d 435 (1976) (by statute the court must inform the defendant in open court that it is not bound by the plea agreement); State v. Runge, 228 N.W.2d 35 (Iowa 1975) (although defendant answered yes when the trial court inquired as to whether he realized the judge had sole discretion in the matter of a sentence to be imposed, defendant was never informed of the judge’s policy not 'to honor sentence concessions in breaking and entering cases, and, therefore, the guilty plea was not knowingly and voluntarily made); and State v. Bonds, 521 S.W.2d 18 (Mo. App. 1975) (no indication in record that defendant understood the court’s right to disaffirm the plea bargain and reject the State’s recommendation).
The following states have ruled that although the accused was not told the court would not be bound by any plea bargains, there was no error. McCoy v. State, 392 So. 2d 1287 (Ala. Crim. App. 1981) (because the defendant did not object or move to withdraw his guilty pleas after sentencing there was no error for the appellate court to review); North v. State, 406 N.E.2d 657 (Ind. App. 1980) (although the court did not inform the defendant on the record that it would not be bound by a plea agreement, the plea agreement itself contained such a provision and the court followed the plea agreement and there was no error); and Lilly v. Commonwealth, 218 Va. 960, 243 S.E.2d 208 (1978) (if, upon the entire record, it appears that at any time before sentencing, the defendant was informed the court was not bound to follow a plea bargain, the defendant cannot argue his plea was not knowingly and voluntarily made).
Here, although the arraigning court failed to inform the petitioner it would not be bound by any plea negotiations, the petitioner responded to inquiry by the court at arraignment that his pleas were not made under any threats, promises of leniency, or any type of coercion. At the sentencing hearing, nearly two months later, the sentencing court asked the petitioner the following:
“THE COURT: I’ve also been advised that you were informed by Judge Palmer that any plea bargaining of any kind that Mr. Hildreth may have had with Mr. Chubb was not binding upon the Court, is that correct?
“DEFENDANT NOBLE: That’s correct.
“THE COURT: You understand that. Whatever sentence you get here today will be based upon what I believe to be correct, you understand that?
“DEFENDANT NOBLE: Yes, sir.”
When the petitioner’s counsel disclosed the plea negotiation to the sentencing court he informed the court that the petitioner had been told the plea negotiation was not binding on the court.
The sentencing court did not follow the recommendations of the prosecution. Rather than having two five-to-ten year sentences running consecutively, as recommended by the prosecutor, the court sentenced the petitioner to four consecutive five-to-ten year sentences.
After sentencing, the petitioner did not move to withdraw his guilty plea. In the petitioner’s 60-1507 motion he admits he' is aware the court is not bound by the terms of a plea bargain. At the hearing on the petitioner’s motion, the petitioner’s father testified the petitioner’s counsel stated he expected the judge to go along with the prosecutor’s recommendation but he didn’t say that he could promise anything. In light of the above, we find the petitioner knew the court was not bound by any plea agreement and there was no error in the failure of the arraigning court to so state on the record.
Finally, the petitioner argues this court should now adopt the standard of requiring a court to announce in advance its intention to reject any plea agreement or recommended sentence concession and give the defendant the opportunity to withdraw his guilty plea.
Rule 11(e)(4) of the Federal Rules of Criminal Procedure allows the defendant to withdraw his guilty plea if the court rejects the plea agreement. The federal courts, however, have interpreted that rule to apply only to true plea agreements; the rule does not apply where the prosecutor agrees to make a sentence recommendation to the court. United States v. Gaertner, 593 F.2d 775 (7th Cir. 1979); United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert. denied 435 U.S. 955 (1978); United States v. Savage, 561 F.2d 554 (4th Cir. 1977).
The petitioner urges this court to adopt the standard set out in the ABA Standards, Relating to the Administration of Criminal Justice, The Function of the Trial Judge, § 4.1(c)(1972 approved draft), as follows:
“(c) If the plea agreement contemplates the granting of charge or sentence concessions by the trial judge, he should:
“(iii) permit withdrawal of the plea (or, if it has not yet been accepted, withdrawal of the tender of the plea) in any case in which the judge determines not to grant the charge or sentence concessions contemplated by the agreement.”
K.S.A. 1985 Supp. 22-3210(d) provides:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
In Burden v. State, 225 Kan. 549, 555, 592 P.2d 451 (1971), this court stated:
“If the defendant is permitted to withdraw his plea any time the sentencing judge does not accept the disposition recommended, defendant could be assured of the recommended disposition or he could withdraw his plea of guilty. This would place the prosecutor in an unfavorable bargaining position for he would stand to lose charge concessions made in good faith. . . .
“In summary we hold that under K.S.A. 22-3210(7) a plea of guilty may be withdrawn for good cause shown and within the discretion of the sentencing court on motion filed prior to the sentence adjudication. Refusal to follow recommended charge and sentence concessions is not in itself sufficient to constitute good cause for withdrawal of a guilty plea entered before sentence, provided the defendant was clearly advised by the court prior to entering his plea that the court was not bound by any charge and sentence concessions, and defendant was then offered a chance to withdraw said plea.”
See State v. Harrison, 231 Kan. 489, 646 P.2d 493 (1982).
We adhere to the above language and refuse to adopt standards for the withdrawal of a guilty plea other than those stated in K.S.A. 1985 Supp. 22-3210(d).
This case and others similar to it suggest serious problems arise at the trial level concerning the application of K.S.A. 1985 Supp. 22-3210. To assure compliance with the statute a trial judge would be well advised to follow a written checklist prior to the acceptance of a plea of guilty or nolo contendere in a criminal case. It is mandatory that the trial judge require the recording of the entire proceeding so that a transcript will be available to the appellate court on review.
The judgment of the lower court denying the petitioner’s K.S.A. 60-1507 motion is affirmed. | [
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Per Curiam:
Arno Windscheffel, disciplinary administrator, filed a complaint with the Board for Discipline of Attorneys (Board) against Darrel E. Johnson, an attorney admitted to the practice of law in Kansas. The complaint concerned a campaign letter Johnson distributed during the 1984 Morton County Attorney primary election. The Board found violations of DR 1-102(A)(4), (5), and (6) (235 Kan. cxxxvii) and recommended that Johnson be publicly censured.
Johnson is the current Morton County Attorney. In the August 1984 primary election, Johnson ran for reelection as county attorney on the Republican ticket. The office requires that the candidate must be licensed to practice law in Kansas. Johnson was opposed in the Republican primary by William J. Graybill, a practicing attorney in Elkhart, Kansas.
Late in the campaign, Johnson sent a letter to the majority of registered Morton County Republicans. The letter stated:
“I have tried to visit each Republican in Morton County, over the past few weeks, to personally ask for your vote and support in the upcoming primary election. Several were not at home, so I am taking this opportunity to let you know why I want to continue to-serve as your County Attorney.
“I want to be your county attorney because I continue to be alarmed by the worsening blight of illegal drug usage in our community. My opponent has long advocated legalizing marijuana and the other “recreational” drugs (cocaine, etc.). And, as City Attorney for Elkhart, he recommended the repeal of the City’s DUI (Driving Under the Influence) law. I am extremely concerned that a prosecutor with this philosophy, would simply ignore the drug crimes and thereby allow the growth of illegal drug usage, wasting the great potential of the young who would become involved. I pledge to intensify the effort to remove illegal drugs from our community. For the sake of our children, we must try.
“I am also extremely concerned about the correction of juvenile offenders and the care of neglected or abused children. In my term, we have treated 16 juveniles in State facilities provided for them. We currently have no other means by which to treat the repeat offenders or to care for those abused or neglected. (The different needs are treated in separate, specialized facilities). But, my opponent has continually voiced his opposition to the State’s involvement in juvenile correction and care. He would rather let juvenile offenders run the streets, and allow abused, neglected children to remain in their misery. Can our children afford a prosecutor with this attitude?
“I am also concerned about the fact that my opponent, as City Attorney and therefore legal advisor to the police, has instructed the police not to “bother” him after 5:00 p.m. or on weekends. Those are the exact times officers most often work criminal cases. To expect them to work without legal advice puts an enormously unfair burden upon them, and certainly could result in offenders not being prosecuted. I will continue to be available to law enforcement officers on a 24 hour-a-day basis.
“I am asking you to please join me in protecting our community. YOUR VOTE COULD MAKE THE DIFFERENCE.
“Thank you for taking time to read this letter. Your vote and continued support will be appreciated.”
The letter criticized Graybill’s stand on drugs, juvenile correction and care, and driving under the influence laws, and his accessibility as legal advisor to the local police. The Board found by clear and convincing evidence that Johnson had “circulated a letter with damaging statements about Mr. Graybill that were false and he knew they were false.” The Board recommended that Johnson be publicly censured for violation of Disciplinary Rule 1-102(A)(4), (5), and (6).
Johnson took exception to the Board’s report, contending that:
1. His statements are constitutionally protected under the First Amendment to the United States Constitution;
2. his conduct did not reflect on his ability to represent clients honestly;
3. his conduct was not prejudicial to the administration of justice; and
4. his conduct was accompanied by mitigating factors.
Disciplinary Rule 1-102 provides in part:
(A) A lawyer shall not:
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
1. First Amendment Rights
Under the Disciplinary Rules, a lawyer’s First Amendment rights are limited. DR 8-102(B) (235 Kan. clii) specifically pro hibits a lawyer from knowingly making a false accusation against a judge or other adjudicatory officer. The reason appears in Ethical Consideration 8-6, which provides in part: “Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism.” ABA/BNA Lawyers’ Manual on Professional Conduct, 01:345 (1984).
A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements against a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.
Johnson admits that the state has a legitimate interest in regulating the attorney’s right to criticize judges and adjudicatory officers. Johnson argues that, while attorneys may be specifically prohibited from knowingly making false statements about judicial candidates, the state has no authority, under the guise of professional responsibility, to control speech relating to candidates for other offices.
The First Amendment to the United States Constitution states that the Congress shall make no law abridging the freedom of speech. Section 11 of the Kansas Constitution Bill of Rights states each person may freely speak, write, or publish their sentiment on all subjects, “being responsible for the abuse of such rights.” Both the United State Supreme Court and this court have recognized that freedom of speech and press is not without certain limitations.
One who has received a license and is accorded the privilege to practice law is still guaranteed the right of freedom of speech. In those instances where a lawyer’s unbridled speech amounts to misconduct which threatens a significant state interest, a state may restrict the lawyer’s exercise of personal rights guaranteed by the Constitutions. N.A.A.C.P. v. Button, 415 U.S. 415, 438, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963).
Other jurisdictions have recognized that, unlike a layman, a bar member’s right to free speech may be regulated. In State ex rel. Nebraska State Bar Assn. v. Michaelis, 210 Neb. 545, 316 N.W.2d 46 (1982), an attorney had placed a newspaper advertisement which listed several factual charges of misconduct, illegal acts, and other violations of the law, which he knew or should have known to be false, by the then incumbent county attorney, the city attorney, and several other attorneys practicing in the region. The court stated that “[a] lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. ... ‘A layman may, perhaps, pursue his theories of free speech or political activities until he runs afoul of the penalties of libel or slander, or into some infraction of our statutory law. A member of the bar can, and will, be stopped at the point where he infringes our Canons of Ethics; and if he wishes to remain a member of the bar he will conduct himself in accordance therewith.’ ” 210 Neb. at 556-58.
Upon admission to the bar of this state, attorneys assume certain duties as officers of the court. Among the duties imposed upon attorneys is the duty to maintain the respect due to the courts of justice and to judicial officers. A lawyer is bound by the Code of Professional Responsibility in every capacity in which the lawyer acts, whether he is acting as an attorney or not, and is subject to discipline even when involved in nonlegal matters, including campaigns for nonjudicial public office. State v. Russell, 227 Kan. 897, 610 P.2d 1122 cert. denied 449 U.S. 983 (1980). The imposition of the ethical obligation of honesty upon lawyers under DR 1-102(A)(4) is necessary for the administration of justice. See cases cited in State v. Russell, 227 Kan. at 900-901. Disciplinary action can be exercised not only for the purpose of enforcing legal rights but for the additional purpose of enforcing honorable conduct on the part of the court’s own officers. In In re Estate of Williams, 160 Kan. 220, 160 P.2d 260 (1945).
Under our system, the county attorney is the highest law officer of the county. The county attorney, as much as any judicial officer, is directly involved in the legal process. To provide for the protection of the administration of justice, this court has the inherent power to discipline a candidate for the office of county attorney whenever the candidate’s activities are contrary to the just and orderly administration of law.
Johnson next contends that the State did not prove by clear and convincing evidence that the disciplinary rules were violated.
The role of the Board is similar to that of a commissioner appointed by the court to conduct hearings and to make a report of his findings, conclusions, and recommendations. Although such a report is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence. State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975).
The first disputed portion of Johnson’s campaign letter concerns Graybill’s prior statements on the legalization of drugs. Graybill denied that he had ever made the statements Johnson alleged. Johnson testified that he based these statements upon a number of conversations he had had with Graybill over the nine years they were in practice. Johnson admitted that in their conversations Graybill had discussed “decriminalizing the penalty” rather than legalizing the use of drugs. We recognize that there is a vast difference between decriminalizing drug use penalties and legalizing the use of drugs. While a voter may not realize the distinction, Johnson, as county attorney, must have realized the difference and known what effect it would have on the voters when he published his statement. We agree with the Board’s findings.
The Board found that those portions of Johnson’s letter dealing with the city DUI ordinance were “totally false.” The evidence presented showed that Graybill recommended repeal of the city DUI ordinance because the Kansas Legislature passed a law which invalidated the existing Elkhart city ordinance. Johnson’s statement regarding the DUI ordinance was designed to be a half-truth. Johnson stated Graybill’s recommendation to repeal the DUI ordinance but failed to give the legal reason for that recommendation. Johnson implied that Graybill, rather than just interpreting the law, had a different purpose when he recommended repeal.
The Board found that part of Johnson’s letter dealing with juvenile correction and care a “lie.” The evidence presented by Johnson merely established that Graybill took positions contrary to that of the State and SRS. He could produce no evidence that Graybill “would rather let juvenile offenders run the streets, and all abused, neglected children to remain in their misery.”
The statements Johnson made in the letter concerning Gray- bill’s accessibility to city police officers after hours involved conflicting testimony. The Elkhart Chief of Police testified that he had never heard Graybill tell police officers not to call him after hours, and that Graybill had always been accessible when police officers needed him. Other witnesses did testify that Graybill had told them that his office hours were nine to five and officers were not to call him after hours.
There is substantial competent evidence to support the Board’s findings that Johnson knew that certain statements he made in his campaign letter were false.
2. Good Faith
Johnson contends that he should not be found in violation of the disciplinary code because the statements he made in the campaign letter were statements of opinion that were made in good faith. He argues that the good faith standards used in libel cases should be applied in disciplinary proceedings.
Johnson cites Justice Prager’s dissent to State v. Russell, 227 Kan. at 910, that any comment concerning a political candidate’s qualifications, “however injurious, is privileged so long as the comment is made in good faith.” Good faith “encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage.” Black’s Law Dictionary 623 (5th ed. 1979). Unlike Johnson, Russell was a candidate for an office that did not require, as a qualification, a license to practice law. Russell is not persuasive.
Johnson argues that when an attorney is acting outside of his professional capacity in the exercise of his constitutional right to free speech and the offending conduct could not reasonably affect his representation of clients or interfere with the administration of justice, there is no basis for professional discipline. We disagree. Lawyers are subject to discipline for improper conduct in business activities, individual or personal activities, and activities as a judicial, governmental, or public official. Improper conduct in any activity can affect an attorney’s professional capacity.
Johnson’s “good faith” claim is a reiteration of his right to free speech claim. Johnson’s statements were not made in good faith. They were calculated to influence the voters against the opposing county attorney candidate.
A similar argument that the good faith standard used in libel should be applied in disciplinary cases was made in State v. Nelson, 210 Kan. 637, 640, 504 P.2d 211 (1972). There Nelson, an attorney, had taken exception to the recommendation of the State Board of Law Examiners that Nelson be suspended from the practice of law for five counts of misconduct. This court found that Nelson had violated two counts and Nelson was publicly censured by the court. State v. Nelson, 206 Kan. 154, 476 P.2d 240 (1970). After that decision was handed down, a newspaper reporter contacted Nelson, who made certain statements to the reporter. The reported statements in the newspaper were general in nature and broadly directed at all law enforcement and judicial institutions. This resulted in a second disciplinary proceeding being brought against Nelson. Nelson claimed that if his statements were libelous in nature, they must be measured by standards prescribed in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). If his statements were not libelous within the “actual malice” rule stated in the New York Times case, then they were not sufficient to subject him to discipline.
The court found Nelson’s argument untenable for two reasons. First, the New York Times case and the supporting line of cases were clearly inapplicable to a disciplinary proceeding because those cases were defamatory actions dealing with the constitutional privilege afforded the press. Nelson, an individual, had no such constitutional right. Beauharnais v. Illinois, 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725 (1952). Second, it is widely recognized that neither civil nor criminal liability is necessary to maintain an action in a disciplinary proceeding.
Other courts have also found that disciplinary cases are not to be treated as other types of libel cases. For example, in Leimer v. Hulse, 352 Mo. 451, 178 S.W.2d 335 (1944), the court rejected the attempted defense that the statements complained of were privileged, on the ground that the material issues in a disbarment proceeding are the falsity of the statements and the intent with which they are made, regardless of the question of privilege.
We believe the reasoning in Nelson is sound. The New York Times standard of “actual malice” in a civil action for libel is not appropriate in a proceeding to discipline an attorney. Here, the Board found that the respondent knowingly made false state ments to enhance his chance of winning the election for county attorney. The evidence supports these findings. Johnson is subject to disciplinary action for his false statements.
3. Prejudice to the Administration of Tustice
Johnson argues that the application of DR 1-102(A)(5) is inappropriate. He contends that that disciplinary rule applies to an attorney in his capacity as an ordinary citizen and, therefore, the standard for invoking the rule’s sanction should be that of “serious and imminent threat” to the fairness and integrity of the judicial system.
Johnson cites In re Hinds, 90 N.J. 604, 449 A.2d 483 (1982), for the proposition that a higher standard is required to find a violation of DR 1-101(A)(5). In Hinds, disciplinary proceedings were brought against an attorney for making out-of-court statements publicly criticizing a trial judge’s conduct of an ongoing criminal trial. The court determined that DR 1-102(A)(5) did not apply when an attorney was not particularly or specially connected with or involved in a criminal case. Under those circumstances, an attorney would enjoy the same free speech rights as any other citizen. The rule’s sanctions could not be invoked against such speech unless it was a “clear and present danger” or a “serious and imminent threat” to the fairness and integrity of the judicial system. The court limited its decision to criminal cases only. It declined to find that Hinds had violated the rule because no hearing was conducted and there was no record sufficient to apply DR 1-102(A)(5).
Cases from other jurisdictions which have considered the application of DR 1-102(A)(5) include:
Matter of Keiler, 380 A.2d 119 (D.C. 1977). In Keiler, the respondent, an associate in a Washington law firm, worked exclusively on labor-management matters. The employees of a Florida company had agreed to submit an issue to arbitration. The respondent asked a labor law partner to act as arbitrator in the proceeding, but did not inform the union that a member of the firm representing the employer was acting as the arbitrator. Following the proceedings, the arbitrator issued a ruling accepting the contentions of the employer. The court, finding a violation of DR 1-102(A)(5), stated that it was no defense to say that no harm was done. It said that a member of the bar, in his professional capacity, should never attempt to deceive another person. “The crux of the American system of justice is basic fairness.” 380 A.2d at 125.
State Bar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974). The respondent had written a letter to a newspaper in which he criticized a judge’s qualifications for office. The court said that isolated incidents of criticism of fellow attorneys did not constitute professional misconduct unless the statement was made with knowledge that it was false or with reckless disregard of whether it was false, and such protection against civil or criminal liability extended on the same terms to lawyers as to private citizens, at least for utterances made outside the course of judicial proceedings.
Matter of Howe, 257 N.W.2d 420 (N.D. 1977). The respondent deliberately made false statements and failed to disclose in an application for admission to the bar material facts requested in connection with the application. The court found that the deliberate failure to disclose the requested information and the deliberate misinformation constituted conduct prejudicial to the administration of justice and conduct adversely reflecting unfitness to practice law.
All of the above cases have recognized that DR 1-102(A)(5) is violated when an attorney makes a false statement which, in any way, has a bearing on the legal process.
There is no Kansas case which discusses when the application of DR 1-102(A)(5) is appropriate. In Nelson, the court found that the respondent had not violated DR 1-102(A)(5). There, Nelson, after learning that a disciplinary board had ordered that he be disciplined, made certain statements which were reported in a newspaper article. Since Nelson’s disciplinary case was terminated, any statements made by Nelson could not serve as harassment or intimidation for the purpose of influencing a decision in that case. Therefore, the facts did not establish a violation of DR 1-102(A)(5).
Here, Johnson was not attempting to influence a case, but he was attempting to influence the results of an election. The election had not been terminated at the time the statements were published. The election involved the office of county attorney, an office which could only be held by an individual licensed to practice law. The making of false statements about a candidate for county attorney is prejudicial to the administration of justice. Johnson’s false statements concerning Graybill certainly had an effect on that office and were prejudicial to the administration of justice. Johnson violated DR 1-102(A)(5).
4. Mitigation
Johnson contends that, even if the statements he made were false, the court should consider mitigating factors in determining what, if any, punishment should be imposed. The mitigating factors he offers are the lack of prior disciplinary violations, his good character and reputation in the community, and his willingness to cooperate during the disciplinary hearing.
Other courts, however, have imposed similar and sometimes harsher discipline for similar offenses. For example:
In Matter of Humphrey, 174 Cal. 290, 163 Pac. 60 (1917), an attorney was suspended from the practice of law for two years for a willful false charge against a superior court judge running for reelection.
In State Board of Exam. v. Spriggs, 61 Wyo. 70, 155 P.2d 285 (1945), an attorney, during his unsuccessful campaign for nomination to a judicial office, circulated a pamphlet that contained false statements, innuendos, and implications defamatory of and derogatory to the office. He was suspended for six months.
In Florida Bar v. Stokes, 186 So. 2d 499 (Fla. 1966), an attorney, who had been swayed by strong feelings generated in a political atmosphere, made various unspecified disparaging and unfair remarks on a radio program about a local judge who was not a participant on the program and had no opportunity to refute the charges. The attorney was publicly reprimanded.
In In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644 (1956), the court reprimanded an attorney for unsubstantiated campaign criticism of an opponent in a judicial primary election.
Johnson’s statements in his letter to the Republican voters were made to influence the vote against Graybill in the primary contest. The published statements were available to all who received the publication. Graybill felt required to answer Johnson’s statements to protect his reputation to practice law in the local community. Under the circumstances, public censure is required.
The Court, having considered the record herein, concurs in the findings, conclusions, and recommendations of the Board.
IT IS THEREFORE BY THE COURT ORDERED that Dar rel E. Johnson be and he is hereby disciplined by public censure and the costs of this proceeding are assessed to the respondent.
IT IS FURTHER ORDERED that this order be published in the official Kansas Reports.
By order of the Court this 5th day of December, 1986. | [
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The opinion of the court was delivered by
Herd, J.:
These are consolidated cases. The issue in each case is the validity of a household exclusion clause in an automobile insurance policy. In case No. 58,919, the Shawnee County District Court denied State Farm Mutual Automobile Insurance Company’s (State Farm) motion for summary judgment and State Farm appeals. In case No. 59,113, the Reno County district court granted a declaratory judgment to State Farm and the Rockwell appeals.
The facts in each case follow:
Case No. 58,919
On January 22,1983, the plaintiffs/appellees, Michael, Jeffrey, and Harry Hilyard, were passengers in an automobile driven by their mother, Cynthia Hilyard. The Hilyard automobile was involved in an accident with a vehicle driven by defendant, Dorothy Clearwater. At the time of the accident, Cynthia Hilyard was the named insured of an insurance policy with State Farm. The policy contained a household exclusion clause.
After the accident, Cynthia Hilyard brought an action in Shawnee County individually and on behalf of her minor children against the estate of Dorothy Clearwater, alleging negligence on behalf of Dorothy Clearwater. She also brought an action on behalf of her children against State Farm alleging minimal negligence on behalf of Cynthia Hilyard. Plaintiffs argued that because of the household exclusion clause, K.S.A. 40-284 mandated uninsured motorist coverage in this case. State Faim’s motion for summary judgment was denied.
Case No. 59,113
On October 24, 1983, the defendant/appellant, Elizabeth Rockwell, (then a two-year-old child) was a passenger in a pickup truck driven by her mother, Donnita Rockwell. Elizabeth Rockwell suffered severe injuries when the vehicle driven by her mother collided with a second vehicle. At the time of the accident, Donnita and Kent Rockwell were the named insureds on an automobile insurance policy with State Farm. This policy, like the Hilyard policy, contained a clause excluding liability for bodily injury to any family member of the insured residing in the same household as the insured.
Elizabeth Rockwell brought suit in Reno County against her mother seeking to recover for personal injuries caused by her mother’s negligence. State Farm then instituted this declaratory judgment action to ascertain its rights under the policy. The district court ruled that Elizabeth Rockwell was properly denied liability coverage under the household exclusion clause and further held the appellant was not entitled to uninsured motorist coverage under K.S.A. 40-284.
The household exclusion clause which is the subject of these consolidated cases is worded identically in both the Hilyard and Rockwell policies. It provides:
“THERE IS NO COVERAGE:
“2. FOR ANY BODILY INJURY TO ANY MEMBER OF THE FAMILY OF THE INSURED RESIDING IN THE SAME HOUSEHOLD AS THE INSURED. The term ‘insured’ as used here means the person against whom claim is made or suit is brought.”
The parties concede that this provision, if valid, excluded the Hilyard children and Elizabeth Rockwell from liability coverage. It is also conceded that household exclusion clauses such as the one contained in the State Farm policies were specifically authorized by K.S.A. 40-3107(i)(l) at the time of the accidents in these cases.
Refore discussing the issues raised on appeal, let us consider the background and history of K.S.A. 40-3107(i)(l).
In 1980, this court concluded that an unemancipated minor child may recover damages in a personal injury action against a parent for the negligent operation of a motor vehicle. Nocktonick v. Nocktonick, 227 Kan. 758, 767, 611 P.2d 135 (1980). This decision aligned Kansas with numerous other states which have abolished parental immunity in all cases or in automobile accident cases.
The following year, in Dewitt v. Young, 229 Kan. 474, 625 P.2d 478 (1981), we held a household exclusion clause void and unenforceable in violation of the requirements of the Kansas Automobile Injury Reparations Act (KAIRA). Specifically, we noted that the KAIRA mandates motor vehicle liability coverage unless a vehicle is statutorily exempt or included within an approved self-insurance plan (K.S.A. 1980 Supp. 40-3104). KAIRA at that time had no provision for household exclusions.
Shortly after the Dewitt decision, the legislature amended the KAIRA to authorize household exclusion clauses. See L. 1981, ch. 191, § 2(i)(l) (codified at K.S.A. 40-3107[i][l]). This legislation became effective on January 1, 1982, and provided as follows:
“(i) in addition to the provisions of subsection (h) and notwithstanding any other provision contained in subsections (a), (b), (c) and (d) of this section, any insurer may exclude coverage for:
“(1) Any bodily injury to any insured or any family member of an insured residing in the insured’s household.”
This statute was in effect throughout 1983 when the accidents in these consolidated cases occurred.
In 1984, the statute authorizing household exclusions was repealed effective July 1, 1984. See L. 1984, ch. 167, § 2 and ch. 175, § 1.
Appellant, Elizabeth Rockwell, contends the 1984 amendment repealing authorization for the household exclusion clause was remedial in nature and therefore should be applied retroactively. This would render the household exclusion clause in State Farm’s policies invalid.
We have consistently held that a statute operates prospectively unless its language clearly indicates legislative intent that it operate retrospectively. Tew v. Topeka Police & Fire Civ. Serv. Commn, 237 Kan. 96, 103, 697 P.2d 1279 (1985); State, ex rel. Stephan v. Board of Lyon County Comm’rs, 234 Kan. 732, 740, 676 P.2d 134 (1984). However, the general rule is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties. Lakeview Village, Inc., v. Board of Johnson County Comm’rs, 232 Kan. 711, Syl. ¶ 8, 659 P.2d 187 (1983); Davis v. Hughes, 229 Kan. 91, 101, 622 P.2d 641 (1981). Further, K.S.A. 1985 Supp. 77-201 First prohibits the repeal of a statute from affecting any right which accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the statute repealed. American State Bank v. White, 217 Kan. 78, 86, 535 P.2d 424 (1975).
The 1984 repeal of authorization for the household exclusion clause contained no evidence of legislative intent for retroactive application. Therefore, unless the statute was remedial in nature, the repeal of K.S.A. 40-3107(i)(l) has no retroactive application.
Appellant argues the statute is remedial in nature because “the KAIRA, like all financial responsibility or compulsory insurance acts is remedial legislation.” In Davis v. Hughes, 229 Kan. 91, Syl. ¶ 8, we held otherwise and recognized the substantive nature of provisions within the KAIRA.
In Davis, we held that a setoff provision (K.S.A. 1976 Supp. 40-3113[e]) authorizing the deduction of PIP benefits from uninsured motorist benefits was substantive in nature. Accordingly, the court determined that a later provision (K.S.A. 1979 Supp. 40-3113a) repealing the setoff provision operated prospectively since there was no language in the statute indicating the legislature intended the repeal to operate retroactively. 229 Kan at 102-03.
A similar analysis is applicable here. The statute authorizing household exclusion clauses affected the substantive rights of the parties covered by the insurance policies. Accordingly, the repeal of this statute also affected substantive rights and thus applies prospectively in the absence of contrary legislative intent. We hold the household exclusion clauses in the insurance policies at issue here were valid.
Having determined the household exclusion clauses were valid at the time the accidents giving rise to this litigation occurred, we must now consider whether K.S.A. 40-284 mandates uninsured motorist coverage in these cases. It is argued that even though the vehicles involved in the present cases were insured, they were uninsured as to the children because of the household exclusion clauses.
The State Farm policies held by the Hilyards and the Rock-wells contain the following definition of an uninsured motor vehicle:
“Uninsured Motor Vehicle — means:
“1. an ‘uninsured’ land motor vehicle, the ownership, maintenance or use of which is:
“a. not insured or bonded for bodily injury liability at the time of the accident; or
“b. insured or bonded for bodily injury liability at the time of the accident; but the insuring company denies coverage or is or becomes insolvent ....
“An uninsured motor vehicle does not include a land motor vehicle:
“1. insured under the liability coverage of this policy;
“2. designed for use mainly off public roads except while on public roads; or “3. while located for use as premises.
“Who Is an Insured
“Insured — Means the person or persons covered by uninsured motor vehicle coverage.
“This is:
“1. you;
“2. the spouse of the first person named in the declarations;
“3. any relative of the first person named in the declarations ....
“When Coverage U Does Not Apply “THERE IS NO COVERAGE:
“2. FOR BODILY INJURY SUSTAINED BY AN INSURED WHILE OCCUPYING A MOTOR VEHICLE:
“a. OWNED BY YOU, OR
“b. FURNISHED FOR YOUR REGULAR USE AND WHICH IS NOT INSURED.”
Under the policy provisions, the children of the insureds were excluded from uninsured motor vehicle coverage because their injuries were not caused by an accident arising out of the operation of an uninsured motor vehicle, which by definition did not include a motor vehicle insured under the liability coverage of the policy. Further, a specific exclusion exists when bodily injuries are sustained by an insured (previously defined to include any relative of the named insured) while occupying a motor vehicle owned by the named insured. Here, the children were insureds occupying the motor vehicle owned by thé named insured when they received bodily injuries.
However, even if the children are excluded from coverage under the specific language of the uninsured motorist provisions of the policies, the question remains whether the State Farm policy is consistent with the uninsured motorist protection provided by K.S.A. 40-284. That statute provides in pertinent part:
“(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits equal to the limits of liability coverage for bodily injury or death in such automobile liability insurance policy sold to the named insured for payment of part or all sums which the insured or the insured’s legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organization.”
In Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 444-45, 517 P.2d 173 (1973), the court explained the purpose of K.S.A. 40-284 as follows:
“ ‘The purpose of legislation mandating the offer of uninsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation and this coverage is intended to provide recompense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages.
“ ‘As remedial legislation statutes mandating the offer of uninsured motorist coverage should be liberally construed to provide the intended protection.’ ”
State Farm argues the purpose behind K.S.A. 40-284 was to protect insureds from injuries caused by another and separate vehicle owned or operated by a person who did not have liability insurance coverage on his automobile. State Farm further contends that if the legislature intended the term “uninsured motorist” to include an insured motorist who is rendered uninsured because of certain policy exclusions, it could have specifically so stated. Finally, State Farm suggests that a finding of coverage under the uninsured motorist statute would render the household exclusion clause found in K.S.A. 40-3107(i)(l) a nullity because any family member who is properly excluded from coverage under the household exclusion clause would simply need to assert coverage under K.S.A. 40-284.
In support of its argument, State Farm relies upon two cases with similar factual circumstances: Reid v. Allstate Ins. Co., 344 So. 2d 877 (Fla. Dist. App. 1977), and O’Hare v. State Farm Mut. Auto. Ins. Co., 432 So. 2d 1294 (Ala. App. 1982). In Reid, the Florida court held that an insured family car does not become an uninsured motor vehicle simply because liability coverage is not available to a particular individual. The court reasoned that to hold otherwise would completely nullify the family household exclusion. Similarly, in O’Hare, the Alabama court ruled that the scope of uninsured motorist coverage should be coextensive with liability coverage and that the exclusion of an insured motor vehicle from the definition of an uninsured motor vehicle was consistent with the household exclusion. 432 So. 2d at 1297-98.
The insureds argue that our decision in Patrons Mutual Ins. Ass’n v. Norwood, 231 Kan. 709, 647 P.2d 1335 (1982), is dispositive of the issue now before us. In Patrons, the issue before this court was whether the Kansas doctrine of interspousal immunity precludes recovery of damages by a husband for personal injuries suffered in an automobile accident caused by his wife’s negligence where such recovery is sought under the uninsured motorist provisions of K.S.A. 40-284. We concluded that because of interspousal immunity, the husband could not recover from his wife regardless of whether she carried liability insurance; thus; the uninsured motorist provision of her insurance policy did not apply. 231 Kan. at 716-17.
Patrons did not require interpretation of K.S.A. 40-284; thus, it is inapplicable to the cases at bar.
After a careful examination of K.S.A. 40-284, the uninsured motorist law, and K.S.A. 40-3107(i)(l), the authorization for the household exclusion clause, we conclude that neither Elizabeth Rockwell nor the Hilyard children are covered by the uninsured motorist provisions of the State Farm policies. K.S.A. 40-284 requires uninsured motorist liability coverage for the insured for injuries resulting from an accident arising out of the ownership, maintenance, or use of a motor vehicle by an “uninsured owner or operator.” The statute does not contemplate a situation where the “uninsured owner or operator” is the owner of an automobile liability insurance policy.
Further, we note that if we were to hold the uninsured motorist statute mandates coverage in this instance, we would effectively nullify the household exclusion clause. It is unfortunate that the accidents giving rise to the cases before us occurred during the relatively brief period of time during which household exclusion clauses were legislatively authorized by K.S.A. 40-3107(i)(l). However, mandatory automobile liability insurance is a creature of statute and the legislation authorizing household exclusion clauses is clear and unambiguous. Accordingly, it is not subject to judicial construction.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by former tenants of an apartment to recover from their former landlords compensatory damages for conversion of the plaintiffs’ household goods and punitive damages. The case was tried to a jury which answered certain special questions in favor of the plaintiffs. Both sides have appealed.
Although there were some minor factual conflicts in certain areas, the essential facts in the case were not in dispute and are as follows: In March of 1982, the plaintiffs, Becky Davis and Ronnie Davis, rented an apartment from the defendants, Melvin, Gloria, and Madalein Odell, in a building complex known as the Suntree Plaza Apartments in Kansas City, Kansas. The plaintiffs failed to pay their rent which was due and owing on August 13, 1983. The defendants served the three-day statutory notice on the plaintiffs to either pay the rent or an action would be brought to evict the tenants. Plaintiffs did not pay the rent. The Odells then brought an action to recover possession of the apartment and for judgment for unpaid rent in the sum of $652.50 in the district court of Wyandotte County.
On September 7, 1983, a default judgment was rendered in favor of the Odells for possession of the apartment, for court costs, and for unpaid rent in the sum of $652.50. This judgment is conceded to be a valid judgment. On September 8, 1983, the clerk of the district court issued a writ of restitution and execution to the sheriff of Wyandotte County directing the sheriff to cause Mr. and Mrs. Davis, as tenants, to be removed from the premises and the landlords to be restored to the possession of the apartment, and that the nonexempt personal property of the defendants, Ronnie and Becky Davis, be executed upon to satisfy the judgment and costs, together with fees for execution of the writ, as provided by law.
On September 13, 1983, pursuant to the writ of execution, the Odells, under the supervision of a Wyandotte County Deputy Sheriff, took possession of the apartment and removed therefrom the personal property of Mr. and Mrs. Davis. The Odells took charge of the property and stored it inside a building, although there was some dispute in that regard. The plaintiffs testified that the property was stored in an open field behind a fence where it was rained on.
On the day the Davises were evicted, they had left the apartment that morning to go to work. Upon their return in the afternoon, they discovered that all of their personal property had been removed and was in the possession of the Odells. Plaintiff, Becky Davis, demanded the return of their property but the defendants refused to release the property unless the plaintiffs paid the sum of $1,737.50, that amount being for back rent, court costs, and removal expenses, plus claimed damages resulting from the abuse of the property by the plaintiffs. The plaintiffs did not pay that amount or tender any money to obtain the return of their personal belongings.
The defendants sent to the Davises a letter advising them that defendants intended to sell the personal property. On November 2, 1983, the defendants published a notice in the Wyandotte Echo advising the Davises that on or about November 7, 1983, their “furniture, household goods and miscellaneous personal items” would be offered for sale. The defendants heard nothing from the plaintiffs. No further demand was made by the Davises for the personal property. Thereafter, the defendants disposed of plaintiffs’ property either by sale or other disposition. The record does not show exactly what the defendants did with the plaintiffs’ property.
In the petition filed in this case on August 27, 1984, the plaintiffs, as former tenants, claimed that they were entitled to recover from the defendants the value of their personal property on the theory of conversion and also because of violations of the Kansas Residential Landlord and Tenant Act (K.S.A. 58-2540 et seq.). Stated simply, it was the position of the plaintiffs that the defendants, their landlords, unlawfully took possession of and confiscated their personal property without legal justification or excuse in violation of K.S.A. 58-2567. In their answer, the defendants took the position that the tenants had abandoned the dwelling unit and the personal property and, under K.S.A. 58-2565(d), they had a right to take possession of the personal property, store it at the tenants’ expense, and sell or otherwise dispose of the same by giving 15 days’ notice prior to the sale and by mailing a copy of the publication notice to the tenants at the tenants’ last known address. Defendants contended that because the tenants failed to respond or make any claim to the property, defendants had a right to assume it was abandoned and dispose of it without liability to the tenants. The defendants counterclaimed seeking to recover damages from the plaintiffs to pay the judgment for unpaid rent and costs in the forcible detainer action, for the expense of removing the tenants’ belongings from the apartment, for the cost of painting and cleaning the premises, and for replacing certain damaged carpet. The defendants claimed that the total damages due from the plaintiffs were $1,737.50. The plaintiffs denied that they had left the apartment in disrepair.
The case was tried to a jury on April 22-24, 1985. The jury’s verdict consisted of answers to special questions. Although the plaintiffs had testified that the value of their personal belongings amounted to $12,385, the jury found the fair and reasonable market value of plaintiffs’ possessions taken by defendants to be $2,000 and that the reasonable cost of removing the property was $90, thus entitling the plaintiffs to a net recovery of $1,910. The trial court, on grounds of equity, reduced the judgment another $500 to $1,410. The court then allowed the defendants to set off their forcible detainer judgment and court costs, but also permitted the plaintiffs to recover their $200 security deposit. The plaintiffs were also awarded their filing fees in the case.
On the appeal, the plaintiffs raise five issues in their brief. The first two issues involve the trial court’s failure to sustain plaintiffs’ motion for default judgment because of defendants’ failure to file an answer to the plaintiffs’ amended petition. Plaintiffs also claim that the trial court erred in denying plaintiffs’ motion for summary judgment on the plaintiffs’ first amended petition. As noted heretofore, the plaintiffs were awarded a verdict by the jury which would render these issues moot. However, the trial court properly concluded that there were genuine issues of fact involved in this case and denied summary judgment in favor of the plaintiffs.
The next point raised by the plaintiffs on the appeal is that the trial court erred in failing to instruct the jury that a landlord’s taking of possession of a tenant’s personal property upon his eviction as security for unpaid rent is a violation of K.S.A. 58-2567. In opposition to that position, the defendants contend that K.S.A. 58-2565 is the controlling statute and that K.S.A. 58-2567 is not applicable.
The issues raised require us to analyze certain provisions of the Kansas Residential Landlord and Tenant Act (K.S.A. 58-2540 et seq.) which was adopted by the Kansas Legislature in 1975. The basic provisions and the purpose of the Kansas Residential Landlord and Tenant Act are discussed in some depth in Clark v. Walker, 225 Kan. 359, 590 P.2d 1043 (1979). In Clark, it is pointed out that prior to the enactment of the residential landlord and tenant act there was little or no statutory law in Kansas governing landlord-tenant relations. It was apparent to the legislature that the antiquated common-law concepts and the ab sence of statutory law created problems and worked to the detriment of both landlords and tenants who were operating on different legal premises. A special committee of the legislature was appointed to study the problem area, and, as a result, the 1975 legislature enacted a comprehensive landlord-tenant code to establish a single standard of reference for both landlords and tenants.
The Kansas act was based in part on the Uniform Residential Landlord-Tenant Act with certain modifications. Various provisions of the act are summarized in Clark v. Walker, 225 Kan. at 364. It is clear that, under the act, both landlords and tenants gained certain advantages and suffered certain disadvantages in order to strike a reasonable balance between the interest of both landlords and tenants. One of the most significant provisions was K.S.A. 58-2567 which provides as follows:
“58-2567 Lien or security interest in tenant’s personal property unenforceable; distraint abolished, exception, (a) Except as otherwise provided in this act, a lien or security interest on behalf of the landlord in the tenant’s household goods, furnishings, fixtures or other personal property is not enforceable unless perfected prior to the effective date of this act.
“(b) Except as otherwise provided in K.S.A. 58-2565, distraint for rent is abolished.”
This section eliminated any lien or security interest on behalf of the landlord in the tenant’s household goods, furnishings, fixtures, or other personal property after the effective date of July 1, 1975. Subsection (b) abolished distraint for rent except as otherwise provided in K.S.A. 58-2565. The term “distraint” is not defined in the statutes. “Distraint” has been defined as a summary extrajudicial remedy having its origin in the common law under which it consisted of seizure and holding of personal property by individual action without intervention of legal process for the purpose of compelling the payment of a debt. Raffaele v. Granger, 196 F.2d 620 (3rd Cir. 1952). It has been said that the word “distraint” comprehends any seizure of personalty to enforce a common-law or statutory right or lien. In re Timberline Lodge, 139 F. Supp. 13, 16 (D. Or. 1955).
In the law of landlord and tenant, rather than the word “distraint,” the term “distress” has been used where there was a taking of the tenant’s personal property by a landlord in order to obtain satisfaction for past due rent. All goods of the tenant on leased premises were considered to be subject to a privilege of the landlord to seize the personal property and hold it as security for the payment of rent. The concept of “distress” is discussed in 49 Am. Jur. 2d, Landlord and Tenant § 726 as follows:
“Distress for rent in arrears, whereby the landlord may seize personal property on the demised premises, is one of the oldest, as well as one of the most efficient, of the common-law remedies for the collection of rent. Broadly defined, common-law distress allows the landlord to go upon the demised premises and seize anything that he might there find, as security for rent in arrears, and hold it without sale until the rental is paid. The right to distrain arises from the moment the relation of landlord and tenant is established, and as administered at common law the remedy is enforceable against any removable personal property found upon the demised premises, whether belonging to the tenant or to a stranger.” (Emphasis supplied.) p. 675.
The same section in 49 Am. Jur. 2d points out that in a number of jurisdictions in this country distress for rent either has been expressly abolished by statute or is deemed to be impliedly abolished by statutes relating to remedies for the recovery of rent.
The effect of K.S.A. 58-2567 was to abolish the common-law right of the landlord to distraint or distress for rent except as otherwise provided in K.S.A. 58-2565. K.S.A. 58-2565(d) and (e) were subsections not included in the uniform act and which were enacted in the Kansas act at the request of an organization representing the landlords. K.S.A. 58-2565 provides as follows:
“58-2565. Extended absence of tenant; damages; entry by landlord; abandonment by tenant, when; reasonable effort to rent required; termination of rental agreement, when; personal property of tenant; disposition, procedure; proceeds; rights of person receiving property, (a) If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of seven days required in K.S.A. 58-2558, and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.
“(b) During any absence of the tenant in excess of thirty (30) days, the landlord may enter the dwelling unit at times reasonably necessary. If, after the tenant is ten (10) days in default for nonpayment of rent and has removed a substantial portion of such tenant’s belongings from the dwelling unit, the landlord may assume that the tenant has abandoned the dwelling unit, unless the tenant has notified the landlord to the contrary.
“(c) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins. The rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment, if the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender. If the tenancy is from month-to-month, or week-to-week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.
“(d) If the tenant abandons or surrenders possession of the dwelling unit and leaves household goods, furnishings, fixtures or any other personal property in or at the dwelling unit, the landlord may take possession of the property, store it at tenant’s expense and sell or otherwise dispose of the same upon the expiration of thirty (30) days after the landlord takes possession of the property, if at least fifteen (15) days prior to the sale or other disposition of such property the landlord shall publish once in a newspaper of general circulation in the county in which such dwelling unit is located a notice of the landlord’s intention to sell or dispose of such property. Within seven (7) days after publication, a copy of the published notice shall be mailed by the landlord to the tenant at the tenant’s last known address. Said notice shall state the name of the tenant, a brief description of the property and the approximate date on which the landlord intends to sell or otherwise dispose of such property. If the foregoing requirements are met, the landlord may sell or otherwise dispose of the property without liability to the tenant or to any other person who has or claims to have an interest in said property, except as to any secured creditor who gives notice of his or her interest in such property to the landlord prior to the sale or disposition thereof, if the landlord has no knowledge or notice that any person, other than the tenant, has or claims to have an interest in said property. During such thirty-day period after the landlord takes possession of the property, and at any time prior to sale or other disposition thereof, the tenant may redeem the property upon payment to the landlord of the reasonable expenses incurred by the landlord of taking, holding and preparing the property for sale and of any amount due from the tenant to the landlord for rent or otherwise.
“(e) Any proceeds from the sale or other disposition of the property as provided in subsection (d) shall be applied by the landlord in the following order:
“(1) To the reasonable expenses of taking, holding, preparing for sale or disposition, giving notice and selling or disposing thereof:
“(2) to the satisfaction of any amount due from the tenant to the landlord for rent or otherwise; and,
“(3) the balance, if any, may be retained by the landlord, without liability to the tenant or to any other person, other than a secured creditor who gave notice of his or her interest as provided in subsection (d), for any profit made as a result of a sale or other disposition of such property.
“(f) Any person who purchases or otherwise receives the property pursuant to a sale or other disposition of the property as provided under subsection (d) of this section, without knowledge that such sale or disposition is in violation of the ownership rights or security interest of a third party in the property, takes title to the property free and clear' of any right, title, claim or interest of the tenant or such third party in the property.” (Emphasis supplied.)
Subsection (d) authorizes the landlord to dispose of household goods, furnishings, and fixtures or any other personal property left on the leased premises in situations where the tenant has abandoned or surrendered possession of the dwelling unit. This relieves the landlord of the burden of storing the property indefinitely until the tenant returns to get it. Simply stated, the landlord, after the expiration of 30 days after the landlord takes possession of the property, is authorized to sell or otherwise dispose of abandoned or surrendered personal property, provided the landlord publishes a 15-day notice prior to the sale or disposition in a newspaper of general circulation in the county in which the dwelling unit is located and gives notice by mail within seven days after publication to the tenant at his last known address. The notice shall contain a description of the property and the approximate date on which the landlord intends to sell or dispose of the property. If these requirements are satisfied, the landlord may sell or dispose of the property without liability to the tenant or to any other person who has or claims to have an interest in the property. There is a provision, however, for the protection of a secured creditor.
The primary issue presented in this case is whether the provisions of K.S.A. 58-2565(d) are applicable so as to afford the defendants, as landlords, the right to proceed thereunder and dispose of the tenant’s personal property. The answer to that question, of necessity, depends upon whether the factual circumstances show that the tenants abandoned or surrendered possession of the dwelling unit and their personal property.
K.S.A. 58-2565(b) provides some insight as to what action of the tenant constitutes an abandonment. It states that, if the tenant is ten days in default for nonpayment of rent and has removed a substantial portion of the tenant’s belongings from the dwelling unit, the landlord may assume that the tenant has abandoned the dwelling unit, unless the tenant has notified the landlord to the contrary. In the present case, the evidence was undisputed that the tenants were living in the apartment when they left for work in the morning and returned to find that all of their personal belongings had been removed from the apartment and were in the custody of the landlords. There was no evidence whatsoever to show that the tenants had removed a substantial portion of their belongings from the dwelling unit. Furthermore, the tenants immediately notified the landlords that they wanted their personal property back, which is contrary to any intention to abandon either the dwelling unit or the property.
The term “abandonment” and “surrender” have an established meaning in the law of landlord and tenant which logically should be applied in determining whether or not a tenant has abandoned or surrendered a dwelling unit and his or her personal property. In Kimberlin v. Hicks, 150 Kan. 449, 94 P.2d 335 (1939), the court cites 1 C.J.S., Abandonment, § 1 and defines “abandonment” as follows:
“ ‘ “Abandonment” of property or a right is the voluntary relinquishment thereof by its owner or holder, with the intention of terminating his ownership, possession, and control, and without vesting ownership in any other person.’ ” 150 Kan. at 454.
In Botkin v. Kickapoo, Inc., 211 Kan. 107, 505 P.2d 749 (1973), “abandonment” is discussed in some depth as follows:
“The law respecting abandonment as applied to property and property rights is well established. Generally, abandonment is the act of intentionally relinquishing a known right absolutely and without reference to any particular person or for any particular purpose. Abandoned property is that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming future possession or resuming its ownership, possession or enjoyment. In order to establish an abandonment of property, actual relinquishment accompanied by intention to abandon must be shown. The primary elements are the intention to abandon and the external act by which that intention is carried into effect. Although an abandonment may arise from a single act or from a series of acts the intent to abandon and the act of abandonment must conjoin and operate together, or in the very nature of things there can be no abandonment. The intention to abandon is considered the first and paramount inquiry, and actual intent to abandon must be shown; it is not enough that the owner’s acts give reasonable cause to others to believe that the property has been abandoned. Mere relinquishment of the possession of a thing is not an abandonment in a legal sense, for such an act is not wholly inconsistent with the idea of continuing ownership; the act of abandonment must be an overt act or some failure to act which carries the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment. It is not necessary to prove intention to abandon by express declarations or by other direct evidence; intent to abandon property or rights in property is to be determined from all the surrounding facts and circumstances. It may be inferred from the acts and conduct of the owner and from the nature and situation of the property. Mere nonuse of property, lapse of time without claiming or using property, or the temporary absence of the owner, unaccompanied by any other evidence showing intention, generally are not enough to constitute an abandonment. However, such facts are competent evidence of an intent to abandon and as such are entitled to weight when considered with other circumstances (1 Am. Jur. 2d, Abandonment, Lost, Etc., Property, § 1, pp. 3-4, § 15, pp. 15-16, § 16, pp. 16-17, § 40, p. 32, § 41, pp. 33-34).” pp. 109-10.
The term “surrender” as used in the law of landlord and tenant is discussed in Rogers v. Dockstader, 90 Kan. 189, 191, 133 Pac. 717 (1913), which quoted Weiner v. Baldwin, 9 Kan. App. 772, 59 Pac. 40 (1899), as follows:
“In Weiner v. Baldwin, 9 Kan. App. 772, 59 Pac. 40, an instruction that the agreement to surrender a lease need not be in writing was approved.
“ ‘A surrender, as the term is used in the law of landlord and tenant, is the yielding up of the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. The rescission of a lease, when by express words, is called an express surrender or a surrender in fact; and when by acts so irreconcilable to a continuance of the tenure as to imply the same thing it is called a surrender by operation of law. . . . While the definitions of what constitutes a surrender by operation of law differ somewhat in the language used, the rule may safely be said to be that a surrender is created by operation of law when the parties to a lease do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made.’ ” (Emphasis supplied.)
These cases clearly hold that there cannot be a surrender of a leasehold by a tenant unless there is shown, either expressly or by implication, a mutual agreement between the landlord and tenant that the lease is terminated.
The undisputed evidence in the present case clearly established that the plaintiffs, as tenants, never intentionally abandoned the property nor did they surrender possession of the property. Possession of the property was obtained by the landlords through an action in forcible detainer filed in the district court of Wyandotte County. Thus, we have no hesitancy in holding that the provisions of K.S.A. 58-2565 are not applicable in this case and that the landlords had no legal right to dispose of the plaintiffs’ personal property in accordance with the procedure set forth in subsection (d) of K.S.A. 58-2565. The landlords obtained possession of the dwelling unit and also of the personal belongings of the tenants as the result of an execution on the landlords’ judgment for restitution of the premises and for recovery of rent in the sum of $652.50. The sheriff was directed to cause the tenants’ belongings to be removed from the premises and the landlords restored to possession of the apartment together with an execution on the nonexempt personal property of the judgment debtors, Ronnie and Becky Davis. The deputy sheriff did not carry out the execution required by the writ issued by the clerk of the court. The sheriff turned the property over to the defendants, as landlords, who had no right to either sell or dispose of the property other than by execution as provided by statute. Because of the fact that the defendants in this case, as landlords in possession of the tenants’ property, had no right to sell the property or dispose of it except as provided by law, their act of selling or disposing of the property constituted a conversion as a matter of law. The measure of damages for conversion of personal property is the value of the property at the time and place of the conversion.
Although the jury was improperly instructed in this case as to the right of a landlord to sell or dispose of a tenant’s property where the property has been abandoned or surrendered by the tenant, the jury obviously found that there had been no abandonment or surrender. The jury specifically found, in its answers to the special questions, that the plaintiffs made demand on the defendants or their employees for the return of their personal possessions and belongings. The jury found that the fair and reasonable market value of the plaintiffs’ possessions and belongings taken on September 13, 1983, was $2,000, and that the cost of removing the personal property from the apartment was $90. The court, on its own motion “on grounds of equity,” subtracted $500 and reduced the award to $1,410. The plaintiffs maintain that the court had no right to reduce the award of the jury in that amount and we agree. There was substantial competent evidence to support the verdict of the jury that the value of the plaintiffs’ belongings was $2,000. The court did not grant a remittitur. It simply reduced by $500 the value of the personal property as found by the jury. We hold that the trial court erred in that regard. The plaintiffs’ jury award should be restored to the amount of $1,910.
Another point raised by the plaintiffs on the appeal is that the trial court erred in refusing to allow the jury to consider an award of punitive damages. In Geiger v. Wallace, 233 Kan. 656, 661-62, 664 P.2d 846 (1983), it was held that, in a proper case, a tenant may recover punitive damages from a landlord where there has been a violation of the Kansas Residential Landlord and Tenant Act. In order to recover punitive damages, the plaintiffs were required to show that the defendants maliciously, willfully, or wantonly violated plaintiffs’ rights. We agree with the trial court that punitive damages were not justified by the evidence in this case. The record is clear that the defendants acted on advice of counsel and with the misunderstanding that K.S.A. 58-2565 was applicable. The defendants, as landlords, went to court and obtained a judgment for forcible detainer and for unpaid rent. They obtained an execution on their judgment. They attempted to follow the procedure set forth in K.S.A. 58-2565(d) in disposing of the tenants’ property. We think it also significant in this case that the plaintiffs, as tenants, made no attempt to contact the defendants after September 13,1983, until they filed their action on August 27, 1984. If they had obtained a lawyer, the plaintiffs could have claimed the right to possession of their property and the matter possibly could have been adjusted to the satisfaction of all parties. We have concluded from the record that, although the defendants’ acts of withholding and disposing of the plaintiffs’ personal belongings were tortious and not authorized by law, they acted in good faith in a way they thought was legally appropriate. Under the circumstances, we hold that the trial court did not err in failing to submit the issue of punitive damages to the jury.
In view of our disposition of this case on the appeal, we do not deem it necessary to consider the issue raised by the defendants on their cross-appeal. K.S.A. 58-2565 is not applicable under the factual circumstances in this case. Hence, the issue of its constitutionality is not properly before us.
The judgment of the district court is affirmed in part and reversed in part. The case is remanded to the district court with directions to restore the sum of $500 deleted from the verdict of the jury and to render judgment in favor of the plaintiffs as so modified. | [
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On October 15, 2010, this court suspended the respondent, Michael A. Millett, from the practice of law in Kansas for a period of 2 years. See In re Millett, 291 Kan. 369, 241 P.3d 35 (2010). Before reinstatement, the respondent was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379), and comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
On October 15, 2012, the respondent filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. The Disciplinary Administrator affirmed that the respondent met all requirements set forth by the court.
The court, after carefully considering the record, grants the respondent’s petition for reinstatement.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. When the respondent has complied with the annual continuing legal education requirements and hás paid the fees required by the Clerk of the Appellate Courts and fhe Kansas Continuing Legal Education Commission, the Clerk is directed to enter respondent’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered this this order of reinstatement of Michael C. Millett shall be published in the Kansas Reports, and the costs of the reinstatement proceedings are assessed to the respondent.
Dated this 14th day of November, 2012. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by plaintiff Farmers Cooperative Association against defendants State Board of Agriculture (Board) and Kenneth T. Boughton, Director of Marketing, seeking to recover damages sustained by plaintiff as a result of an incompleted transaction involving the sale of milo by plaintiff for export to South Korea. The district court entered summary judgment in favor of these defendants and plaintiff appeals therefrom.
In order to make the complex factual background from which this case arises more meaningful, it would be helpful, preliminarily, to summarize the plaintiff s theory of liability against these defendants. An individual named Reginald Hurd telephoned plaintiff s general manager, William J. Warders, on August 22, 1981, and discussed the purchase of a large amount of milo for export to South Korea. Warders then purchased substantial amounts of milo at well over the market price to fill what he believed was a legitimate grain deal sanctioned by the defendants. The sale was not consummated. Plaintiff seeks to hold these defendants liable on the grounds that these defendants gave Warder’s name to Hurd as a prospective grain seller without adequately investigating Hurd and engaged in certain misleading activities upon which plaintiff relied to its detriment. In essence, plaintiff contends it would not have purchased the grain but for the wrongful activities of these defendants and that they, should be liable to plaintiff for its losses in the aborted Hurd grain transaction. These allegations and the facts relevant thereto will be amplified later in the opinion, but the above summary is sufficient to place the following general background and factual information in focus.
Before proceeding to the specific factual allegations herein, it is necessary to state some general background information and the legal relationship of some of the individuals and agencies involved. The Board is composed of twelve members elected by delegates from various agricultural organizations. The Board elects from its members a president, a vice-president, and a secretary. K.S.A. 74-502, -503. The Division of Markets (Division) is statutorily created within the Board and its chief executive officer, known as the Director of Marketing, is selected by the Board. K.S.A. 74-530 and -533. The creation, powers, and duties of the Division are set forth in K.S.A. 74-530 as follows:
“A division of markets hereinafter referred to as 'the division,’ is hereby created within the state board of agriculture. It shall be the duty of the division to perform acts and to do, or cause to be done, those things which are designed to lead to the more advantageous marketing of agricultural products of Kansas. For these purposes the division may, among other things authorized by this act:
(a) Investigate the subject of marketing farm products;
(b) promote their sales distribution and merchandising;
(c) furnish information and assistance to the public;
(d) study and recommend efficient and economical methods of marketing;
(e) provide for such studies and research as may be deemed necessary and proper; and
(f) to gather and diffuse timely and useful information concerning the supply, demand, prevailing prices and commercial movement of farm products including quantity in common storage and cold storage, in cooperation with other public or private agencies.”
Additional powers and duties of the Division are set forth in K.S.A. 2-3006, reproduced in pertinent part as follows:
“The division shall have the following duties, authorities and powers:
(1) To implement and coordinate the policies and practices of each grain commission represented by it;
(2) to sue and be sued.”
K.S.A. 2-3006(2) grants the Division the power to sue and be sued. Although not raised as an issue by the parties, it would appear that a serious problem arises in this case by virtue of the plaintiff s failure to bring the action against the Division and the Director (Boughton) in his official capacity rather than against Kenneth T. Boughton as an individual and the State Board of Agriculture as his employer. However, under the disposition of the issues herein, we do not deem it necessary to pursue this aspect of the case further.
The Kansas Grain Sorghum Commission (Commission) consists of nine members appointed by the governor and is “attached to” and is “a part of the division of markets of the state board of agriculture.” K.S.A. 2-3002. The duties and powers of the Commission are set forth in K.S.A. 2-3005 and include:
“(1) To recommend to the secretary policy regarding marketing, campaigns of development, education and publicity for the Kansas grain commodity and products made therefrom represented by it;
“(b) Notwithstanding any provision of this act or other law to the contrary, any determination by the secretary regarding any recommendation by a commission pursuant to subparagraphs one to five of this section may be disapproved by a vote of two-thirds (%) of the members of the commission but nothing herein shall be construed as authorizing such commission to abrogate, limit or otherwise affect the power of the secretary to administer and supervise the internal operations and management of the division.”
The Chairperson of the Commission, at all times pertinent hereto, was Rudolph A. Vopata.
We turn now to the facts from which this litigation arises. In the spring of 1981, Reginald Hurd contacted Kenneth T. Boughton about arranging a tour of certain Kansas agricultural facilities for representatives of the (South) Korea Feed Grain Association (Association). The tour was to include Kansas State University milling operations. The idea was to establish to the Koreans that milo was an acceptable feed grain substitute for corn and the purchase of Kansas milo would be economically prudent for the Koreans. Boughton-had previously arranged for a number of comparable tours. Boughton sent a telex message to the U.S. Feed Grain Council in Seoul, South Korea, to verify that the Association was a “reliable organization.” The response was favorable and so the tour was arranged. The tour ended on May 22,1981, with what was referred to as a “V.I.P.” dinner in honor of the foreign guests. Boughton, Vopata, and Hurd were among the guests. At that dinner, Boughton introduced Hurd to Vopata.
Conflicting evidence is presented as to what was said and not said at the introduction. Plaintiff contends Boughton knew at that time that Hurd did not represent the Association but rather only Intercon Implex, Inc., a California corporation owned by Korean nationals which was interested in bidding and supplying U.S. grain to the Association. Assuming this is true, Boughton did not relay this information to Vopata. Plaintiff contends this was a concealment of a material fact which was a major cause of plaintiffs damages. During the introduction, Boughton told Hurd that Vopata could be of assistance in contacting grain sorghum producers and suppliers.
On August 12,1981, Intercon became the successful bidder for the Korean grain tender. On or about August 19, 1981, Hurd called Vopata to obtain leads of suppliers. It should be noted that Hurd had told Boughton and Vopata that he did not want to deal with the large experienced grain exporters on the belief the Koreans could acquire the grain cheaper from small suppliers and that a higher price could be paid producers by eliminating the high middle-man charge customary in grain export deals.
As previously stated, Vopata was Chairperson of the Grain Sorghum Commission at the time. He was a milo farmer from the Blue Rapids area and had at times past served as a director and president of plaintiff cooperative. He was a long-time acquaintance of plaintiffs general manager, William Warders. In July 1981, Vopata mentioned a possible Korean grain deal with Hurd. Vopata, on or about August 19, 1981, gave Warders’ name to Hurd as an individual to contact relative to the purchase of milo. He told Warders to expect a call from Hurd relative to a large Korean milo sale. Hurd called Warders three times on August 22, 1981. Hurd advised that he could pay $5.00 per CWT for milo when the current market price was $3.65 per CWT. Warders was surprised by the high offer. Three days later, Warders contacted his local banker who verified Hurd had a $4,000,000 letter of credit through a Missouri bank. Warders began buying vast amounts of milo to fill the Korean order — paying approximately one dollar over market price. No written confirmation of the order was ev.er received.
Problems developed. The cost of shipping the milo from Blue Rapids to a seaport was prohibitive. Hurd then proposed to exchange the plaintiff s milo for Commodity Credit Corporation (CCC) milo already located at a seaport. To aid in this project, Hurd sought Boughton’s assistance in the form of Boughton requesting that Governor Carlin call the CCC to encourage acceptance of the grain swap. The call was made by the Governor. Nothing was worked out and Hurd ultimately purchased milo from a large experienced exporter.
It should be noted that Boughton extended the privilege to Hurd of using the Board of Agriculture’s telex equipment during negotiations for the purchase of grain for export. This was standard procedure in such circumstances.
On September 16, 1981, Warders contacted Boughton. This was the first contact between the two and occurred after the Korean grain deal had collapsed.
Numerous issues are raised but the linchpin question is whether a cause of action has been stated against Boughton. Viewing the evidence in the light most favorable to plaintiff, has Boughton breached any legal duty owed to plaintiff which caused or contributed to plaintiffs injury? The answer to this question must be no.
A major part of the Division’s duties is to promote the sale of Kansas grain. In this regard, the Division tries to put potential buyers of grain in contact with potential sellers. The Division is not a guarantor of performance by either seller or buyer. True, Boughton did not tell Vopata that Hurd represented a California corporation rather than Korean feed dealers and that the corporation was only a bidder on a grain tender. However, it should be recalled the corporation had been the successful bidder prior to any contact between Hurd and Warders. A $4,000,000 letter of credit was in place with a Missouri bank by the time of first contact. The Division will make investigations of potential purchasers if requested to do so. Warders never requested any assistance in this case and made no inquiry on his own other than the letter of credit check through his own bank. Rather, Warders received telephone calls from a stranger (Hurd) to him and started buying grain in response thereto. He stated Vopata and Hurd led him to believe Hurd worked for the Grain Sorghum Commission. Warders’ deposition testimony concerning his August 22, 1981, telephone conversations with Hurd is illuminating. He states in part:
“Q. [By Mr. Wilke, Board’s attorney] . . . Did Mr. Hurd say who he was working for?
“A. As I best recall he led me to believe that he was working — and I don’t recall now exactly whether he said for or with the Kansas Grain Sorghum Commission. And he also I guess left me with the impression that he also was working with or for the Korean Feed Association.
“Q. Now, you say with or for, which is it?
“MR. FABERT [attorney for appellant]: In which case, counsel? We have two different recommendations.
“Q. (BY MR. WILKE) With or for the Grain Sorghum Commission? Was he working with them or working for them?
“A. I took it that he was working for the Grain Sorghum Commission.
“Q. Did he specifically identify that he was working for the sorghum commission or was that an assumption on your part?
“MR. FABERT: Are we limiting this to the August 22 conversation?
“MR. WILKE: That’s correct. I’m still on the August 22 conversation.
“A. Well, as I best recall the way he worded it to me was that he was working for the Grain Sorghum Commission.
“Q. (BY MR. WILKE) How long did this conversation last?
“A. As I best recall approximately five minutes.
“Q. Five minutes. How much grain did you tell him that your co-op could supply?”
“A. I told him I thought I could originate 100, 125,000 bushel.
“Q. Did you have authority on behalf of the co-op to supply that much without going before your board of directors or corporate officers?
“A. Yes, sir.
“Q. Did it seem strange to you that he would offer you better than a dollar over market?
“A. Yes, it did.
“Q. Did you consider what might have happened if the deal fell through? “A. I didn’t really have time.'
“Q. . . . Did Mr. Boughton ever do anything to induce you to enter into a grain deal with Mr. Hurd?
“A. Did Mr. Boughton?
“Q. Yes.
MR. FABERT: To the personal knowledge of the witness you mean?
ÍMR. WILKE: yes.
“A. No.”
Plaintiff attempts to categorize Vopata as some type of agent of Boughton in this transaction and thus render Boughton liable for any misleading statements made by Vopata. It contends Vopata misled Warders by general statements from which he inferred Hurd was working for the Grain Sorghum Commission as well as the Korean purchaser. Hurd could hardly have served in both capacities, yet plaintiff made no effort to establish Hurd’s true capacity. Likewise, the statutes previously cited clearly rule out attributing statements of Vopata to either Boughton or the Board under the doctrine of respondeat superior. These statutes show that Vopata, as Chairperson of the Grain Sorghum Commission, was not the employee of the Division of Markets or the Board of Agriculture. The Division of Markets selves the Grain Commission in implementing policies. Members of the Commission are directly appointed by the governor.
We conclude the district court correctly held that Boughton breached no legal duty to plaintiff. Defendant Board is present in this action only under the claim of respondeat superior. Therefore, the district court properly entered summary judgment in favor of both defendants.
It is unfortunate that plaintiff cooperative suffered the loss herein. However, the fact that the prospective purchaser was given plaintiff s name as a prospective seller by the Chairperson of the Grain Sorghum Commission does not relieve the plaintiff of the obligation to conduct its affairs with proper business-like prudence and caution. The ultimate decision of whether or not to do business with Hurd was plaintiff s, and responsibility for that decision cannot be shifted to third parties under the facts herein.
Other issues raised need not be discussed in view of this determination.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Rosen, J.:
Following his guilty plea, Adam Ardry appeals from the sentence imposed following the revocation of his probation. Because we find that the district court relied on a basis that is not grounded in the sentencing framework that our legislature has constructed, we reverse and remand for resentencing applying the proper standards.
On November 9, 2007, Ardry entered a guilty plea to aggravated indecent liberties with a child, a severity level 3, person felony. He simultaneously entered a plea to unrelated charges involving driving while intoxicated.
Consistent with the plea agreement, the State recommended a mid-range sentence in the appropriate sentencing guidelines grid box and a departure to probation on the aggravated indecent liberties charge. Ardry5s counsel argued that the sexual contact was consensual, despite the admitted age-related legal inability of the victim to give such consent. Ardiy’s counsel also asked the court to take into consideration Ardry’s claim that he did not know the girl’s age and that the victim was portraying herself as older than she was. The district court followed the parties’ recommendation and imposed a sentence of 216 months’ imprisonment based on Ardiy’s criminal histoiy score of B. The court also granted a downward departure to 36 months’ probation to be served at a community corrections residential center.
Less than a week after completing the residential portion of his probation, Ardiy violated his probation by losing his job, failing to report to his probation officer, testing positive for alcohol, and failing to attend his sex offender treatment. Ardiy admitted to these violations and requested that the district court reinstate his probation to another residential program, possibly with inpatient alcohol treatment. Ardry’s counsel also requested that the court consider imposing a lesser sentence, suggesting the 102 months’ imprisonment that Ardiy would have received if certain misdemeanors were not aggregated in calculating his criminal history score. Although the court recognized there was no legal obligation to consider the Labette Correctional Conservation Camp, the probation revocation hearing was continued to find out whether Ardry would be accepted into the program.
After Labette informed the court that it would not accept Ardry, the revocation hearing was resumed. The State requested that the court impose Ardiy’s underlying sentence. The court considered Ardiy’s previous probation failures—in one previous case, Ardry violated his probation within 2 weeks; in another case, Ardiy violated his probation within 3 weeks. The court recognized that cost was the main issue preventing Ardiy from attending sex offender treatment. The court stated:
“I don’t feel like I have any reasonable choice other than to remand Mr. Ardiy to the Department of Corrections to serve his sentence. I would say that in and of itself as far as Ais PV and the underlying sentence, it would be considered harsh, certainly not illegal, but honestly, I don’t have any belief anymore Aat Mr. Ardry can complete probation, and when I reach Aat point I have to—I have to be honest wiA myself. There’s just no indication. The history’s already Aere, and I gave Mr. Ardry an opportunity at time of sentencing, and I definitely had concerns, but I didn’t voice Aem ‘cause I don’t think that’s positive, but the sentence is reimposed. There is postrelease in this case ‘cause the original sentence was a dispositional departure.
“As far as the modification of the sentence, I don’t have the case before me, but generally case law and the most recent cases out of Judge Owens’ court that addresses this issue, even though the courts—appellate courts didn’t specifically address it, they certainly allude to the fact that you have to have substantial and compelling reasons to justify a sentence which goes under the mitigating number, and I couldn’t really have any substantial and compelling reason to reduce the sentence, and if I did, it would have to be different from what was given dispo-sitionally because this would be now a durational reduction, and I don’t. So I looked every direction I could to avoid this sentence, but once I looked at the history and Labette’s declination to take Mr. Ardry, I’m left with reimposing the sentence.”
The Court of Appeals affirmed, with Chief Judge Greene concurring in part and dissenting in part, the district court’s decision to revoke probation and impose the original sentence.
On review, Ardry argues that .the district court abused its discretion at the probation revocation hearing by imposing the original sentence because the court misunderstood the law and so did not properly consider the statutory limitations or legal standards for imposing a lesser sentence. In his statement at sentencing, the district judge stated that he was required by statute to find substantial and compelling reasons to reduce the original sentence and that any reasons for such a reduction would have to differ from those underlying the original dispositional departure. We agree that the district court misstated the statutory requirements for imposing a lesser sentence in a revocation proceeding.
K.S.A. 22-3716(b) authorizes a district court revoking a defendant’s probation to “require the defendant to serve the sentence imposed, or any lesser sentence.” (Emphasis added.) The interpretation of a sentencing statute is a question of law over which this court exercises unlimited review. State v. Riojas, 288 Kan. 379, Syl. ¶ 7, 204 P.3d 578 (2009).
In Abasólo v. State, 284 Kan. 299, 305, 160 P.3d 471 (2007), this court held:
“The statute [K.S.A. 22-3716(b)] does not impose any additional restrictions on the district court’s discretion as to the sentence that may be imposed at the time of the probation violation hearing. Neither have Kansas courts interpreted the statute in such a way that would require the district court to make explicit findings on the record for the reasons for imposing a reduced sentence.”
State v. McKnight, 292 Kan. 776, 782, 257 P.3d 339 (2011), followed and amplified the reasoning in Ahasolo. In McKnight, the court held that the plain language of K.S.A. 22-3716(b) allows the district court to impose any sentence less than the one originally imposed, including a shorter prison term, a shorter term of post-release supervision, or any combination thereof. McKnight had originally been sentenced to a term of 30 months’ incarceration with 24 months’ postrelease supervision; but upon revocation of his probation, the district court imposed a modified sentence of 22 months’ incarceration with no period of postrelease supervision. McKnight, 292 Kan. at 776-77. Such a modified sentence would not have been a presumptive or even a legal sentence under the sentencing guidelines. This court did not set forth any requirements for imposing a lesser sentence at a probation revocation hearing and instead upheld die lesser sentence imposed even when the district court had mistakenly imposed no postrelease supervision due to a misunderstanding. McKnight, 292 Kan. at 783.
Because a district court may impose a lesser sentence without stating a reason or even by mistake, a district court certainly does not need new or different mitigating factors in order to impose a lesser sentence. Although a district court has broad latitude in exercising its discretion, that discretion is abused when the court renders a decision that fails to consider proper statutory limitations or legal standards. State v. Shopteese, 283 Kan. 331, Syl. ¶ 2, 153 P.3d 1208 (2007). In this case, the district court stated that statutory restrictions limited its authority to impose a lesser sentence. This was an incorrect legal standard and constituted an abuse of discretion.
The Court of Appeals also relied on a policy argument, reasoning that the sentencing guidelines were put into place to ensure that similarly situated defendants receive comparable sentences. If K.S.A. 22-3716(b) grants a district court unfettered discretion in imposing a lesser sentence after probation revocation, the sentencing guidelines allow similarly situated defendants to receive different sentences if a defendant fails to complete probation successfully. It is not, however, the function of the appellate courts to delete language from or add language to Kansas statutes, and only the legislature may decide whether the statutory sentencing scheme contains inequitable inconsistencies. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 464-65, 228 P.3d 403 (2010).
Ardry also argues that the calculation of his criminal history score violates the right to trial by a jury as analyzed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We decline to revisit State v. Bogguess, 293 Kan. 743, 755, 268 P.3d 481 (2012), and State v. Ivory, 273 Kan. 44, 47-48, 41 P.3d 781 (2002), as they relate to this subject, and we find no error here.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded for resentencing. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Jason Wade Schaeffer pleaded guilty to first-degree murder, aggravated kidnapping, aggravated robbeiy, and a weapons violation in 1994, when he was 17. The district court judge sentenced Schaeffer to life in prison on each of the first two counts; 15 years to life on the third count; and 5 years on the fourth count, with all of the sentences to run consecutively. Schaeffer was permitted to take this direct appeal of his sentences out of time under State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982).
Schaeffer’s convictions arose out of the March 1993 abduction and shooting death of Timothy Riley. Because the facts of Schaef-fer’s crimes are pertinent to his sentencing challenge, we review them briefly.
Schaeffer, armed with a sawed-off shotgun, accosted Riley outside of Riley’s Topeka home. Schaeffer ordered Riley into Riley’s car, then drove around the block into an alley where Joshua Kaiser was waiting. Riley was then forced into the trunk of his car, and defendant and Kaiser drove around, eventually stopping at a friend’s house. The friend asked about the car. Schaeffer and Kaiser told their friend that they had hijacked it and that its owner was locked in the trunk. One of the young men knocked on the car and shouted a question. From within the trunk came the sound of a human voice. When Schaeffer and Kaiser drove away, their friend called the police.
Meanwhile, Schaeffer and Kaiser drove to a rural area in Shawnee County, where they stopped and removed Riley from the trunk. They directed him to walk down a fence row in a field and to place his hands on a fencepost. Schaeffer then ordered Riley to a different post and asked him how he had fared in the trunk. Riley replied that the ride was bumpy. Schaeffer then raised the sawed-off shotgun and fired once into the back of Riley’s head, and removed Riley’s watch and ring. Police would later find Riley’s lifeless body where it had fallen.
After the shooting, Schaeffer and Kaiser continued to drive around in Topeka. When police spotted the car, they gave chase. When the chase resulted in a wreck, the police apprehended Schaeffer and Kaiser. They found the sawed-off shotgun and Riley’s watch in the car, and Schaeffer confessed his involvement in the crimes.
Because Schaeffer had three prior juvenile adjudications for crimes that would have been Class E felonies if he had been an adult, he was prosecuted as an adult in this case. He initially filed notice of an intent to rely upon an insanity defense and underwent a psychological examination at Larned State Security Hospital. No report of the examination is contained in the record before us.
After Schaeffer pleaded guilty as charged, he received the sentences detailed above.
On this appeal, Schaeffer raises one issue through counsel and 12 issues pro se. Counsel argues that Schaeffer’s sentencing was fatally infected by the district judge’s bias and prejudice against Schaeffer. We discuss this issue first. Of Schaeffer’s 12 pro se issues, only two survive his decision to plead guilty to his crimes. We address these two issues together because both relate to the propriety of the district judge’s consideration of Schaeffer’s mental examination at sentencing.
Sentencing Judge’s Bias, Prejudice, or Corrupt Motive
At sentencing, the district judge made tire following statements:
“I’ve thought a lot about this case . . . [and] this is probably one of the most heinous crimes that I’ve ever seen, read about, heard. It’s atrocious, it’s brutal, and it’s cruel.
“You’ve shown no remorse whatsoever .... [Y]ou have nothing to say to anybody. You’ve shown no remorse. You’ve been diagnosed as having alcohol abuse, cannabis abuse, personality disorders not otherwise specified, sadistic and antisocial.
“There is an incident contained in that Lamed report that I have read that is a very sick incident. It’s an extremely sick joke, if you want to look at it as that, on a very regressed patient. I’m not going to go into what that incident is. You know what it is, and you know what you did.
“The word ‘heinous’ is defined as somebody who is grossly wicked, reprehensible, abominable. Those terms fit you to a T. You can sit here right now and look me straight in the face, and I would guarantee you right now that if you had a gun, you wouldn’t hesitate to use it, whether on me or somebody else. Why? I’ll never know, and neither will anybody in this room.
“The mere fact that I have read in the [presentence investigation report] about all die foster homes that you were in, that you were in my old hometown at one time, frightened me. When I read that I diought, ‘My God! I’ve got relatives in that town. I’ve got nieces, nephews, great-nieces, great-nephews.’ You don’t care.
“Somediing diat was said that I think probably sums up what I’m going to do to you: to some extent, you’ll have a roof over your head, three meals a day, some recreation, and a place to sleep. You left a wife, a mother, a cohort, a friend, and two children to live witii nightmares for the rest of their lives and have to con-standy look over dieir shoulders wherever they go to see whedier there’s another Josh Kaiser or Jason Schaeffer, and I hate to say it in front of them, but diere are other Josh Kaisers and there are other Jason Schaeffers, and they’re walking the streets of Topeka. They should not be allowed to walk. They should not be allowed to live. They should not be allowed to survive.
“... I’ve talked about [your prior criminal history and your three prior felonies]. But if the Supreme Court, when this is appealed, desires to read the Lamed report, as I have, they’ll find out that you were involved in innumerable stuff as a teenager, misdemeanor or otherwise. Whether you were ever adjudicated or not for them, I don’t know.
“. . . You can sit there, and you can smirk, and you can do whatever.
“If I could, the Hard 40 probably wouldn’t be enough for you or for Mr. Kaiser.”
In addition, the district judge “strongly urge[d], recommend[ed], to the State Parole Board that [Schaeffer] never ever see the light of day outside the penal system,” finally saying again, “If I could do more, I would.”
Schaeffer s counsel argues that these excessive and ill-advised comments by the district judge demonstrate that his sentences were the products of judicial bias, prejudice, or corrupt motive. In order to succeed on such a claim, Schaeffer must first show that the judge had a duty to recuse under the Kansas Code of Judicial Conduct and failed to do so and, second, that actual bias or prejudice warrants setting the sentence aside. We have recently held that bias or prejudice may be presumed when, based on objective standards, the probability of actual bias is too high to be constitutionally tolerable. State v. Robinson, 293 Kan. 1002, 1032, 270 P.3d 1183 (2012). This is not such a case. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975) (“Among [the cases in which bias or prejudice may be presumed] are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him); see also Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876-84, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (same; bias also presumed where person with stake in case had “significant and disproportionate influence” in fundraising, campaigning for judge’s election while litigation pending or imminent); Davenport Pastures v. Board of Morris County Comm’rs, 291 Kan. 132, 144-46, 238 P.3d 731 (2010) (in administrative action, Board’s attorney’s multiple roles, history of involvement in prior proceed ings created objective probability of actual bias too high to be tolerable when attorney assisted in adjudication); State v. Sawyer, 45 Kan. App. 2d 156, 158-60, 244 P.3d 705 (2011) (discussing Caper-ton, noting judicial bias or prejudice presumed only “in limited circumstances,” on “extraordinary facts”), rev. granted September 21, 2011. Reversal is not required unless the judge’s conduct actually prejudiced Schaeffer’s rights. See State v. Walker, 252 Kan. 279, 290, 845 P.2d 1 (1993); State v. Starbuck, 239 Kan. 132, 134, 715 P.2d 1291 (1986).
A judge must recuse in any proceeding in which his or her impartiality might reasonably be questioned, including when the judge has a personal bias or prejudice concerning a party. Supreme Court Rule 601B, Kansas Code of Judicial Conduct, Canon 2, Rule 2.11(A)(1) (2011 Kan. Ct. R. Annot. 699). Disqualification of a judge is appropriate when the circumstances and facts of the case “create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.” State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984); see also State v. Griffen, 241 Kan. 68, 72, 734 P.2d 1089 (1987) (quoting 46 Am. Jur. 2d, Judges § 170).
We agree that the judge’s comments in this case were generally excessive and ill-advised, and we are particularly troubled by those regarding Schaeffer living in the same town as certain members of the judge’s family. These comments might cause a reasonable person to question the judge’s impartiality, and they persuade us that the judge should have recused. But Schaeffer’s claim still fails on appeal because he has not demonstrated that actual bias or prejudice warrants setting aside his sentences.
Although the district court judge expressed a preference for more severe punishment, he denied the State’s request to convert Schaeffer’s sentences to definite grid sentences subject to upward departure under what was then the relatively new Kansas Sentencing Guidelines Act.
Instead, the judge plainly evaluated several of the sentencing factors enumerated in the then-controlling K.S.A. 21-4606 (Ensley 1992). Those factors included: “[tjhe defendant’s history of prior criminal activity; . . . [t]he extent of the harm caused by the defendant’s criminal conduct; . . . [wjhether the defendant intended that his criminal conduct would cause or threaten serious harm; . . . [and tjhe degree of the defendant’s provocation.” The judge mentioned Schaeffer’s three prior juvenile adjudications. He was well aware of the unprovoked and particularly cruel nature of Schaeffer’s crimes in this case: Schaeffer was tire lone initiator; he escalated the situation’s seriousness; he boastfully displayed Riley’s car with Riley in its trunk to a friend; and he mocked Riley by questioning him about the comfort of his trunk ride just before summarily executing him. The judge also expressly considered the harm Schaeffer caused to Riley’s family. The mere fact that Schaef-fer’s sentences were harsh and consecutive does not establish actual prejudice.
Under these circumstances, Schaeffer’s claim to entitlement to resentencing'by a different district judge fails.
Consideration of Mental Examination
At Schaeffer’s sentencing, defense counsel objected to the State’s mention of a report of Schaeffer’s psychological examination, arguing that the report was not in evidence, that it lacked foundation, and that it could not be properly considered by the judge. Before passing sentence, the judge stated that the Larned report was part of Schaeffer’s presentence investigation report and that he had read it several times and was familiar with its content.
Schaeffer now argues that the district judge should not have considered the results of Schaeffer’s psychological examination at all during sentencing. He also advances the more specific claim that the judge’s consideration of statements Schaeffer made during the examination was error because Schaeffer did not receive Miranda warnings before making the statements. We reject both of these arguments.
First, in Kansas, a report on a psychological examination of a criminal defendant is a valid component of the defendant’s pre-sentence investigation report. See K.S.A. 21-4604(b)(3) (Furse) (presentence investigation report to include mental examination of defendant); see also State v. Korbel, 231 Kan. 657, 663, 647 P.2d 1301 (1982) (discussing purpose of, necessity for presentence investigation report).
Second, Schaeffer’s notice of his intent to raise an insanity defense constituted his consent to a court-ordered mental examination by an expert for die State, making Miranda warnings unnecessary. See State v. Cheever, 295 Kan. 229, 248-49, 284 P.3d 1007 (2012) (citing K.S.A. 22-3219[2] [statute governing today’s nearest analog to insanity defense, i.e., mental disease or defect]; Buchanan v. Kentucky, 483 U.S. 402, 423-24, 107 S. Ct. 2906, 97 L. Ed. 2d 336 [1987]; Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct. 1866, 68 L. Ed. 2d 359 [1981]; State v. Ji, 251 Kan. 3, 23, 832 P.2d 1176 [1992]). Our recent decision strictly limiting the State’s introduction of evidence about such a psychological exam in the guilt phase of a capital trial does not govern the circumstances before us here. See Cheever, 295 Kan. at 248-49. Schaeffer’s was not a capital case. The results of his psychological exam were considered by the district judge, not a jury, and only as relevant to sentencing factors, not to prove his guilt.
Affirmed.
Luckert, J., not participating.
J. Dexter Burdette, District Judge, assigned. | [
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The opinion of the court was delivered by
Lockett, J.:
The State took a temporary easement on a portion of the plaintiff s property to relocate a frontage road. The main issue is whether the State was exercising its police power in relocating and reorienting the roadway on land near but not touching the plaintiff s property. If the State’s action was within its police power, the State is not liable to the plaintiff for the loss in property value due to the relocation. The district court found, as a matter of law, the State was exercising its power of eminent domain. The jury awarded plaintiff $50,000. The State appeals.
Dean Small, the plaintiff, is a veterinarian. For almost 10 years he has owned an animal clinic in Overland Park, Kansas. The clinic is located in the middle of three commercial properties. It originally fronted on Grant Circle which intersected with the 1-35 east frontage road. Grant Circle terminated in a cul-de-sac south of Small’s property, and the frontage road intersected with 75th Street north of the plaintiff s property.
To relocate the frontage road, the State took a temporary easement on Small’s property. The completed project relocated the frontage road, diverting the road from an area southwest of Small’s property, so that it now runs around the property to the east and intersects with 75th Street 400 to 600 feet east of its old intersection. The portion of the old frontage road running west and directly in front of the property was vacated and torn up. Small’s property is now located at the end of a cul-de-sac known as Grant Circle.
The court-appointed appraisers awarded Small $3,375.00 for the temporary easement. Small requested a jury trial. At the first trial, the jury awarded Small $10,000.00. The jury’s after value finding was higher than the range of after value opinion testimony. The trial court granted Small a new trial.
At the second trial, the judge again found, as a matter of law, that when the State relocated the frontage road near Small’s clinic, it was acting under its power of eminent domain. The jury, following the instructions pursuant to eminent domain, awarded Small $50,000 compensation. The State appeals, raising several issues.
The State complains that the trial court should not have granted Small a new trial. The first trial produced the following valuation testimony by the experts, Clay Roberts and Curtis Bliss, and the landowner:
Small Roberts Bliss Verdict
Before $300,000 $279,884 $208,000 $260,000
After $110,000 $142,862 $205,500 $250,000
Difference $150,000 $137,022 $ 2,500 $ 10,000
The jury awarded Small $10,000.
The trial court granted Small a new trial because the jury’s findings in the first trial were not within the range of the value testimony. Mettee v. Kemp, 236 Kan. 781, 696 P.2d 947 (1985). The State contends our decision in Mettee is wrong and should be overruled. It requests that we reconsider Mettee and rule that a verdict is properly within the range of opinion testimony if the before value finding is lower than the highest before value opinion in evidence or the after value finding is higher than the lowest after value opinion in evidence. The State claims this is the rule set forth in City of Wichita v. May’s Company Inc., 212 Kan. 153, 510 P.2d 184 (1973).
Mettee attempted to clarify the statutory language concerning compensatory damages when there is a partial taking of property. K.S.A. 26-513(c) provides:
“If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the 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.”
K.S.A. 26-513 was enacted in 1963 and subsequently amended in 1969. Prior to that time, the customary procedure was for a jury to bring in a verdict stating the total amount of damages to be awarded the landowner without making a specific finding as to the value of the land before and after the taking. Mettee discussed the cases following the enactment of 26-513 and held “that in order for the verdict of a jury to be upheld, as being withiri the range of the evidence, its findings as to the ‘before’ and ‘after’ value of the property taken must fall within the range of the opinion testimony.” 236 Kan. at 789.
Mettee follows the dictates of our present statute and guarantees the fairest results. Where a jury award is not within the requirements of K.S.A. 26-513, the trial court must grant a new trial.
Because the trial court correctly granted Small a new trial, we must now determine if the judge was correct when he found that, as a matter of law, the State had exercised its power of eminent domain to take Small’s property.
K.S.A. 26-508 provides that the only issue to be determined by a jury is the amount of compensation for the land or the right taken by eminent domain. Prior to submitting the question of the amount of compensation, the trial judge must find that, as a matter of law, the taking was by eminent domain.
One of the powers of government is the ability, upon payment of adequate compensation, to take privately owned property which is useful to the public. Both the federal government and the individual state governments possess this power of eminent domain which is necessary to fulfill governmental responsibilities.
Governmental police power is the inherent power of government to take action which promotes the public health, safety, welfare, or morals. “Constitutional provisions against taking private property for public use without just compensation impose no barrier to the proper exercise of the police power.” Kansas City Power & Light Co. v. Kansas Corporation Comm’n, 238 Kan. 842, 850, 715 P.2d 19 (1986). Cases which discuss whether government action is the exercise of the power of eminent domain or police power use the term police power narrowly to designate only the governmental power to regulate the use of, or impair a right in, property to prevent detriment to the public interest without the payment of compensation. This court discussed the police power and the rights of abutting landowners in Smith v. State Highway Commission, 185 Kan. 445, 453-54, 346 P.2d 259 (1959).
The original concept of eminent domain contemplated only a physical appropriation of private land by the State. A reasonable interference by the State that does not affect the owner’s land in any special or particular manner, so that any inconvenience is shared with neighbors and damages differ among them in degree and not in kind, is an exercise of government police power. Before a party may recover compensation for an eminent domain action, it must establish that it has an interest in the property and there has been a taking. This court has defined taking to mean “the acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner.” Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 125, 671 P.2d 511 (1983). The requirement that there must be an actual taking of property by the government for an individual to receive compensation has been modified. Where a government has imposed significant restrictions on private property, a taking may be found and the government required to pay compensation.
Here the State acquired only a temporary easement along the southern portion of Small’s property. Small concedes that the State’s action has not resulted in the permanent taking of his land; his property is the same after the State terminated its use of the temporary easement as before it acquired the temporary easement. Small claims that, even though there was no permanent taking of his land, (1) the resulting loss in economic value of his business was a taking for which he should receive compensation; (2) the impairment of accessibility caused by the relocation of the frontage road to his property was unreasonable; and (3) whenever the diversion of traffic results in a cul-de-sac, the affected landowner should be compensated. The State answers that the reduction in value of Small’s property and the relocation of the access road was not a taking under eminent domain principles but a taking under the State’s police power.
There are no Kansas cases which hold that State action resulting merely in a diminution in the value of property is a taking. In fact, one old Kansas case holds exactly the opposite. In Mugler v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887), the State had forbidden the sale and manufacture of intoxicating liquors. It was argued that since the claimants’ breweries were erected when it was lawful to engage in the manufacture of beer and were of little value for other purposes, the regulation destroyed, or at least materially diminished, the value of the property, and thus could not constitutionally be enforced without the payment of compensation. The court found the case did not involve the power of eminent domain. It was a prohibition upon the use of property which was injurious to the health, morals, or safety of the community. The legislation neither disturbed the owners’ control or use of their property for lawful purposes, nor restricted their right to dispose of it. Mugler was reaffirmed in Goldblatt v. Hempstead, 369 U.S. 590, 8 L. Ed. 2d 130, 82 S. Ct. 987 (1962).
Sax, in discussing the highway access cases in Takings and the Police Power, 74 Yale L. J. 36, 74-75, (1964), states:
“In these cases, typically, government changes the location of its highway enterprise by diverting traffic, or by replacing an old highway with a new limited-access turnpike, or by closing a road completely. As a result property owners may sustain an economic loss. It would seem helpful to consider these cases in the same category as those in which one individual has received a benefit as a result of his proximity or favorable location in respect to the property of another. When, in the private sphere, an economic loss is sustained as a result of one party’s moving or closing his business, no action for damages or compensation is allowed. Insofar as government exercises the same privilege which is available to every private citizen, it ought likewise to be free from a duty to compensate.”
Courts have found instances of governmental actions that may result in a diminution of the property’s value and are merely regulatory under the police power. For example, developers of new subdivisions may be required by a municipality to provide facilities such as roads, streets, sewers and playgrounds as a condition to approval of a plat, and applicants for permits to erect business buildings in commercial areas of a city may be required to provide offstreet parking. 1 Nichols on Eminent Domain § 1.42(2) (3rd ed. rev. 1985). A city ordinance, planning and creating reasonable zoning districts, may forbid the construction of a business building in a residential district. Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99 (1923),
The use of the streets and highways may be regulated and restricted by the public authority in the exercise of the police power to the extent necessary to provide for and promote the safety, peace, health, morals, and general welfare of the people. The fact that such regulation results in a diminution of the value of private property should not make such regulation a taking. Smith v. State Highway Commission, 185 Kan. at 453. The diminution in value of Small’s property cannot be treated as a taking. The State’s action neither disturbed Small’s control or use of his property nor restricted his right to dispose of it.
Small’s second claim is that the relocation of the road resulted in a reduction of and impairment to his right of access to the clinic. He argues that by denying his right to reasonable access, the State exercised the power of eminent domain rather than its police power.
An individual whose land adjoins an existing road or other highway has a vested right to go to and return from his own land without unreasonable interference. That right includes not only the right of the owner, but also the right to have the land accessible to patrons, clients, and customers. However, such right is subject to reasonable regulation with respect to the customers. Riddle v. State Highway Commission, 184 Kan. 603, 610, 339 P.2d 301 (1959).
Access to and from an existing public highway may not be taken from the owner of land abutting the highway by the public without just compensation. The right of access of an abutting property owner upon a public street or highway is merely a right to reasonable, but not unlimited, access to and from the abutting property. Ray v. State Highway Commission, 196 Kan. 13, 15, 410 P.2d 278, cert. denied 385 U.S. 820 (1966). An owner of land has no right to the continuation of a flow of traffic in front of his property from an access-controlled thoroughfare and the State may abandon, reroute, or otherwise divert traffic without any liability to the owner of abutting lands. Brock v. State Highway Commission, 195 Kan. 361, 367, 404 P.2d 934 (1965).
Small cites Riddle v. State Highway Commission, 184 Kan. 603, as support for his argument that this is an eminent domain action. Riddle, however, was determined by a divided majority of this court and can be distinguished from the present case. In Riddle, the State condemned a portion of the Riddles’ land for the construction of a new highway, and the plaintiffs, who ran a motel on the property, received no right of access to the new highway. The court said that, due to the diversion of traffic occasioned by the new highway and denial of direct access thereto, the use of the plaintiffs’ property as a motel would be greatly curtailed. It noted that no damages would be allowed to plaintiffs for loss of a right of access, because the plaintiffs never had such a right to the new highway. In the present case, none of Small’s land was condemned, and he still has access to the highway, although the route is a bit more circuitous.
Some courts have allowed damages for loss or limitation of access resulting from the conversion of a conventional street or highway into a limited-access highway. Damages are measured by the difference between the fair market value of the property belonging to the landowner before and after it is taken or damaged, less deductible benefits. See Annot., 42 A.L.R.3d 148, § 3.
In this case, however, 75th Street was already a limited-access highway. The relocation of the access road merely diverted traffic. Courts which have considered whether property owners should be compensated for diversion of traffic have uniformly denied compensation for such diversion. Kansas cases have also reached this result. Brock v. State Highway Comm’n, 195 Kan. 361; Ray v. State Highway Comm’n, 196 Kan. 13. For an in-depth discussion see Annot., 42 A.L.R.3d 148, § 5.
The change of travel route does not of itself result in legal impairment of the right of ingress and egress to and from such property and a controlled access highway. Where a landowner’s direct access or an access route is changed, the reasonableness of the circuity of travel caused by the rerouting of the access is considered to determine whether the impairment of access to the property is reasonable or unreasonable. The landowner is entitled to compensation for the impairment of his access where the rerouting (circuity of travel) is unreasonable.
The State, has a duty to regulate the flow of traffic. Regulating the flow of traffic includes the power to direct traffic, including relocating roads and the access to roads. A proper exercise of the police power by the sovereign does not require the payment of compensation where the change in the access route is reasonable. Small was not denied total access to his property, but only had the mode of access slightly modified; he did not suffer an unreasonable change in access. The trial court’s finding that the change in access was unreasonable and a taking under eminent domain rather than an extension of the police power was incorrect.
Small’s last claim is that we should adopt the rule that whenever the diversion of traffic results in a cul-de-sac, the affected landowner is entitled to compensation. In 4A Nichols on Eminent Domain § 14.15(4), it states that some courts have recognized an exception to the no damages rule where state action creates a cul-de-sac:
“A distinction must be drawn between a diversion of traffic and a destruction of access. Where all traffic in front of an owner’s property is shut off, there is, in effect, a virtual discontinuance of the highway. The vacation of a part of a street which leaves property abutting on the remaining part of a street with access to the system of streets in either direction has generally been held to constitute no actionable injury. But vacation of a part of a street which destroys all access by property abutting on the remaining part of the street to the system of streets in one direction, thus putting the property on a cul-de-sac, has generally been held to constitute an actionable injury.”
The facts in this case, however, do not fit into that exception. Small’s clinic was in a cul-de-sac prior to the relocation of the highway. At that time, the only way to get to the clinic was via the frontage road which passed in front of the clinic. After the road relocation, the clinic can be reached only via the frontage road that passes behind the clinic. The clinic is still located on a cul-de-sac and is only somewhat more isolated than it was before the road relocation.
The relocation of the road has diverted traffic, but has not deprived either Small and his employees or his customers access to Small’s property. Under the facts of this case, as a matter of law, the State acted under its police power. Because Small’s losses were caused by the State’s use of its police power, he is entitled to no compensation for a permanent taking of his property. The trial court erred when it determined as a matter of law the State was exercising the power of eminent domain and then allowed the jury to award compensation for a permanent taking of the property. The case is returned to the district court for a jury to determine the amount of compensation due Small for the State’s temporary use of his property while relocating the road.
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The opinion of the court was delivered by
Biles, J.:
After Kerry Jenkins was convicted of misdemeanor theft in municipal court for violating a Wichita city ordinance, his conviction was vacated and he was charged with and convicted of felony theft in state district court for the same offense. Jenkins argues double jeopardy attached to the municipal court proceeding, so the State’s felony theft prosecution is barred under the Double Jeopardy Clauses of the Fifth Amendment to tire United States Constitution and § 10 of the Kansas Constitution Bill of Rights, as codified at K.S.A. 21-3108. The State counters that jeopardy did not attach to the municipal court proceeding because the municipal court did not have jurisdiction over felony theft. We hold that the municipal court could vacate Jenkins’ plea, and the State could prosecute him for felony theft. Double jeopardy did not attach. We affirm.
Facts and Procedural Background
On May 1, 2007, Jenkins stole two DVDs, valued at less than $1,000, from a grocery store. Jenkins was charged in municipal court with misdemeanor theft. Wichita City Ordinance 5.42.010 (2005), petit theft, classifies theft of property valued at under $1,000 as a misdemeanor and provides for a potential penalty of 1 year in jail and a fine.
At the time of the crime, K.S.A. 2006 Supp. 21-3701(b)(5) also classified theft of property valued at less than $1,000 as a misdemeanor, but another subsection of the statute provided: “Theft of property of the value of less tiran $1,000 is a severity level 9, nonperson felony if committed by a person who has been convicted of theft two or more times.” (Emphasis added.) K.S.A. 2006 Supp. 21-3701(b)(6); see K.S.A. 21-3701(b)(5), (6) (same). Jenkins had two prior theft convictions.
On May 31, 2007, the district attorney’s office filed felony theft charges in district court against Jenkins for the same theft. But on June 5, 2007—just 5 days after the felony charges were filed— Jenkins pleaded no contest to misdemeanor theft in municipal court.
On June 21, 2007, the city prosecutor moved to vacate the misdemeanor theft conviction. The City argued the municipal court lacked jurisdiction to prosecute the misdemeanor theft charge because Jenkins’ crime should have been classified as a felony under K.S.A. 21-3701(b)(6). The city prosecutor cited State v. Elliott, 281 Kan. 583, Syl. ¶ 1, 133 P.3d 1253 (2006), for tire holding that the municipal court lacks jurisdiction over felony crimes. On July 3, 2007, the municipal court granted the City’s motion to vacate.
On July 18, 2007, Jenkins filed a motion to dismiss the felony theft charge in district court, arguing it was a second prosecution for the same crime in violation of the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the United States Constitution, §10 of the Kansas Constitution Bill of Rights, and K.S.A. 21-3108. The State argued the statutory and constitutional double jeopardy provisions were not violated because the municipal court lacked jurisdiction. The district court agreed with the State.
The district court held that under K.S.A. 21-3701(b)(6), Jenkins’ third theft conviction must be classified as a felony. It held the municipal court conviction was a nullity because the municipal court lacked jurisdiction over felonies and that double jeopardy protections did not bar the felony proceedings in district court. The district court then presided over a bench trial during which Jenkins was convicted for felony theft. Jenkins filed a timely appeal to the Court of Appeals, arguing the municipal court had jurisdiction over the misdemeanor theft prosecution, so the second prosecution violated double jeopardy.
The Court of Appeals held that Elliott was controlling and the municipal court lacked jurisdiction because the theft was classified as a felony under K.S.A. 21-3701(b)(6). State v. Jenkins, No. 100,396,2009 WL 2144059, at *1-2 (Kan. App. 2009) (unpublished opinion). It then held K.S.A. 21-3108(4)(a), the statutory protection against double jeopardy, does not bar a second prosecution when tire court presiding over the first prosecution lacked jurisdiction. 2009 WL 2144059, at *2. Jenkins filed a petition for review with this court, raising the same double jeopardy issue. This court has jurisdiction under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against a second prosecution after conviction for the same offense by the same sovereign. See Heath v. Alabama, 474 U.S. 82, 88-89, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985) (under the dual sovereignty doctrine a defendant may be prosecuted for the same crime by two sovereigns if the two entities draw their authority to punish the offender from distinct sources of power). This court has held that § 10 of the Kansas Constitution Bill of Rights and the Fifth Amendment to the United States Constitution are coextensive. State v. Morton, 283 Kan. 464, 467, 153 P.3d 532 (2007); see State v. Cady, 254 Kan. 393, 396-97, 867 P.2d 270 (1994).
Historically, Kansas treated the cities and the State as separate sovereigns, allowing prosecution of the same crime in both municipal and district court. Earwood v. State, 198 Kan. 659, 660, 426 P.2d 151 (1967) (“The city and the state are separate sovereigns having separate codes of behavior. We have previously declared that a defendant may be prosecuted for his actions by both sovereigns.”)- But the United States Supreme Court held that practice violated the Fifth and Fourteenth Amendments. Waller v. Florida, 397 U.S. 387, 393-95, 90 S. Ct. 1184, 25 L. Ed. 2d 435, reh. denied 398 U.S. 914 (1970) (“[T]he judicial power to try petitioner on the first charges in municipal court springs from'the same organic law that created the state court ... in which petitioner was tried and convicted for a felony,” and petitioner could not be tried by both the municipal government and the State.). This court recognized that Waller overruled Earwood in Cox v. State, 208 Kan. 190, 191-92, 490 P.2d 381 (1971) (Earwood and other similar cases “may no longer be considered sound authority insofar as they are grounded on the theory of dual sovereignty of city and state.”).
Under this precedent, Jenkins' prosecution is seen as arising from the same sovereign because both the City and the State derive their power from the same organic law, the Kansas Constitution, so the double jeopardy provisions are potentially implicated. Whether a criminal defendant’s protection against double jeopardy is violated is a question of law over which an appellate court has unlimited review. State v. Gaudina, 284 Kan. 354, 369, 160 P.3d 854 (2007); Morton, 283 Kan. at 468.
The parties agree double jeopardy does not attach to a proceeding if the court lacked jurisdiction. This point is well established. See, e.g., Serfass v. United States, 420 U.S. 377, 391-92, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975) (“[Jeopardy] does not come into play until a proceeding begins before a trier 'having jurisdiction to try the question of the guilt or innocence of the accused.’ [Citations omitted.] . . . Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.”); Grafton v. United States, 206 U.S. 333, 345, 27 S. Ct. 749, 51 L. Ed. 1084 (1907) (“[B]efore a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged.”); K.S.A. 21-3108(4)(a) (prosecution is not barred “[b]y a former prosecution before a court which lacked jurisdiction over the defendant or the offense”); State v. Hendren, 127 Kan. 497, 499-500, 274 P. 274 (1929) (Double jeopardy did not attach to prosecution in Cherokee County for blackmail because it was charged in wrong county and “ 'defendant cannot be considered as put in jeopardy by a proceeding in a court that has no jurisdiction in the premises, because any judgment that might be rendered against him would be void.’ ”).
The parties dispute whether the municipal court had subject matter jurisdiction over Jenkins’ third theft prosecution. Jenkins argues the municipal court had concurrent jurisdiction to convict him of misdemeanor theft under the Wichita ordinance, even though the crime would have been classified as a felony under K.S.A. 21-3701, because a prosecutor has discretion over whether to offer proof of prior offenses. The State argues municipal courts do not have jurisdiction over felonies and K.S.A. 21-3701(b)(6) mandates that the third prosecution for a theft of property valued at less than $1,000 is a felony.
To determine whether double jeopardy attached to Jenkins’ municipal court proceedings, we must resolve whether the municipal court had subject matter jurisdiction. Whether the municipal court had jurisdiction over the misdemeanor theft prosecution is a question of law subject to unlimited review. State v. McDaniel, 292 Kan. 443, 444, 254 P.3d 534 (2011).
Scope of Municipal Court Jurisdiction
The jurisdiction of municipal and state district courts is defined by statute. City of Junction City v. Cadoret, 263 Kan. 164, 168, 946 P.2d 1356 (1997). K.S.A. 12-4104 defines municipal court jurisdiction, and K.S.A. 22-2601 defines state district court jurisdiction in criminal cases.
At the time the municipal charges were filed against Jenkins and he was found guilty in municipal court, K.S.A. 12-4104 stated: “The municipal court of each city shall have jurisdiction to hear and determine cases involving violations of the ordinances of the city.” And K.S.A. 22-2601 (Furse 1995) stated: “The district court shall have exclusive jurisdiction to tiy all cases of felony and other criminal cases under the laws of the state of Kansas.”. In Cadoret, this court held that “[a] reading of diese statutes clearly shows diat crimes which are designated as felonies can only be charged and tried in district courts, not in municipal courts.” (Emphasis added.) 263 Kan. at 168.
But Jenkins argues the city prosecutor can exercise discretion by choosing not to prove at least one of Jenkins prior theft convictions, avoiding the state statute’s felony designation. The State counters diat Jenkins’ third theft prosecution must be classified as a felony under state law, which would mean the city ordinance must be deemed invalid because it treats a third theft conviction as a misdemeanor.
This court has held that prosecutors have discretion to decide the level of offense to charge. See State v. Portillo, 294 Kan. 242, 253, 274 P.3d 640 (2012) (“prosecutor has essentially unfettered discretion to ignore a fact that would support a prosecution for a more serious offense and, instead, can merely choose to prosecute the defendant for a lesser offense”); State v. Sandberg, 290 Kan. 980, 986, 235 P.3d 476 (2010) (nothing “‘ “foreclose^] the prosecutor from deciding in a particular case that, notwithstanding the presence of one of the aggravated facts, the defendant will still be prosecuted for the lesser offense” ’ ”). But a prosecutor cannot simply confer subject matter jurisdiction on a court. Miller v. Glacier Development Co., 293 Kan. 665, 669, 270 P.3d 1065 (2011) (“[Sjubject matter jurisdiction is vested by statute, and parties cannot confer such jurisdiction upon a court by consent, waiver, or estoppel.”).
Resolution of this case turns on whether the city prosecutor could prosecute Jenkins based on a municipal ordinance that degrades the felony designation established by state law for Jenkins’ third theft crime. In other words, can the City enact an ordinance classifying a crime as a misdemeanor even though the state law specifically designates it as a felony? If tire City had authority under its home rule powers to enact an ordinance classifying all thefts of property valued at less than $1,000 as misdemeanors, the municipal court could exercise jurisdiction based on the Wichita petit theft ordinance. If not, the ordinance was invalid, and the municipal court could not base its jurisdiction upon it.
The legislature may preempt tire constitutional authority of cities only in the manner prescribed by the Home Rule Amendment to tire Kansas Constitution, Article 12, § 5. State ex rel. Kline v. Board of Comm’rs of Unified Gov’t of Wyandotte Co./KC, 277 Kan. 516, Syl. ¶ 2, 85 P.3d 1237 (2004). While the Home Rule Amendment empowered cities to determine local affairs, the “ "home rule power does not authorize cities to act where the state legislature has precluded municipal action by clearly preempting the field with a uniformly applicable enactment.’ ” 277 Kan. at 520 (quoting Kansas City Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670, 673, 8 P.3d 701 [2000]). As long as the legislature has not preempted a subject area with a uniformly applicable enactment, cities may exercise their home rule power by: (1) enacting a charter ordinance to exempt tire city from a nonuniform legislative enactment or (2) enacting an “ordinary” or noncharter ordinance if there is no conflicting legislative enactment. Kan. Const, art. 12, § 5(c); Kline, 277 Kan. at 520. This court has previously examined the validity of similarly conflicting state and municipal laws, and a review of those decisions provides guidance.
In City of Junction City v. Lee, 216 Kan. 495, 532 P.2d (1975), the defendant was convicted in municipal court of violating a Junction City ordinance that prohibited carrying a dangerous knife or firearm on one’s person. Lee appealed to the district court and sought dismissal on the grounds that the municipal ordinance conflicted with the state statute that preempted the field of weapons control. To support his argument, Lee pointed out that the statute only prohibited having the knife or weapon in two circumstances: when the weapon was concealed or when the person carrying the knife or firearm intended to use the weapon. The district court agreed the ordinance conflicted with these statutory provisions. This court reversed on appeal because we held that the ordinance merely went further than the statutory prohibition—but did not counter it. This court also held that the State had not clearly preempted the field of weapons control so as to exclude regulation by cities. 216 Kan. at 501-02. In dicta, the Lee court further noted that a different portion of the ordinance declared certain conduct to be a misdemeanor and that provision “could well be found to conflict with die state law because K.S.A. 21-4201(4) declares such offense to be a felony.” 216 Kan. at 504.
In Cadoret, the defendant was convicted in municipal court with driving under the influence (DUI) as a diird time offender. He appealed to district court and then sought dismissal of the conviction, arguing the city ordinance conflicted with the state statute and, as a result, the ordinance was preempted. The district court agreed and dismissed the conviction. This court affirmed. 263 Kan. at 168-74. At that time, K.S.A. 1996 Supp. 8-1567 provided that a first time DUI offense was a class B misdemeanor, a second offense was a class A misdemeanor, and a third or subsequent offense was a felony, In addition, subsection (m) of 8-1567 provided in part:
“Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by tins act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof, but the minimum ■penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.” (Emphasis added.)
The city adopted a DUI ordinance that was similar to, but not identical to, the state statute. Most significantly, the ordinance omitted the language designating first or second offenses as mis demeanors and third and subsequent offenses as felonies. In the appeal from the district court’s dismissal of the municipal court conviction, the Cadoret court framed the issue by stating:
“The question then becomes whether a city, under the authority of 8-1567(m), may omit the severity classification of a crime designated as a felony in a state statute of uniform application in order to prosecute and punish such offenders in municipal courts. For the various reasons we will hereafter set forth, we hold a city may not do so.” 263 Kan. at 168.
The court then noted the resolution did not depend on home rule authority because 8-1567(m) authorized the city to adopt a DUI resolution. Nevertheless, citing cases dealing with home rule authority, the court held the city ordinance could not conflict with the state statute. 263 Kan. at 169-74. The test for this determination, the Cadoret court stated, is:
“[Wjhether the ordinance permits what the statute forbids or prohibits what the statute authorizes. Lee, 216 Kan. at 501; see Blevins v. Hiebert, 247 Kan. 1, 7, 795 P.2d 325 (1990). If so, there is a conflict; but if both are prohibitory and the ordinance merely goes further in its prohibition, though not counter to the prohibition in the statute, there is no conflict. Lee, 216 Kan. at 501.
“In the present case, 8-1567(f) expressly designates a third or a subsequent offense as a nonperson felony. [The Junction City Ordinance] fails to make this designation. The ordinance does not go further in its prohibition. It actually ‘permits an identical violation to be prosecuted as a nondesignated offense while the same conduct is specifically stated to be a felony if charged under the state statute. This is a clear conflict.” (Emphasis added.) 263 Kan. at 170.
The Cadoret court noted this conclusion was supported by the dicta in Lee that the ordinance could conflict with state law because it classified the crime differently. This reference to Lee is significant for our purposes because Lee did not involve the DUI statute, which Jenkins attempts to distinguish from the theft statutes at issue in his case. But his point is weakened by the central holding in Lee that a municipal ordinance, even one that is in an area where the Kansas Legislature has not preempted city regulation, cannot conflict with state statute. See Lee, 216 Kan. at 501.
This existence of a conflict between a state statute’s felony classification and a city’s prosecution of a misdemeanor rose again in the DUI context in Elliott, 281 Kan. 583. In that case, the defendant was charged in district court with DUI as a third or subsequent offense, meaning he already had at least two prior DUI convictions. After a presentence report showed Elliott had four prior misdemeanor convictions in municipal court and one prior felony conviction in district court, Elliott challenged his criminal history classification for sentencing purposes. In making that argument, Elliott focused on K.S.A. 22-2601 (Furse 1995), which vested district courts with exclusive jurisdiction over felonies, and asserted the third and fourth convictions in municipal court could not be used to enhance his criminal history score because the municipal court lacked subject matter jurisdiction for those crimes the Kansas Legislature classified as a felony. This court agreed, stating that “the holding and reasoning of Cadoret could be applied to the circumstances of the present case to conclude that, because the municipal court possessed jurisdiction to prosecute Elliott for only two DUI offenses, the third and fourth convictions were void and could not be used to enhance his current sentence.” (Emphasis added.) Elliott, 281 Kan. at 587.
But the court continued its analysis to address arguments made by the State asserting the validity of the third and fourth municipal court convictions. And one of those arguments was essentially the same argument made by Jenkins in this case: The cases were not charged or proved as a felony but as a misdemeanor and, therefore, the municipal court had jurisdiction.
To support its argument, the State cited State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), for its holding that a DUI is a felony only if the prior DUI convictions are alleged in the complaint and proven. In Elliott’s case, the State argued, there was no way to have alleged and proved the prior convictions because three convictions occurred on the same day. Nevertheless, the Elliott court rejected the State’s argument and held the municipal court lacked jurisdiction over the third and fourth offenses. 281 Kan. at 590-93. In doing so, the Elliot court discussed two post-Matterson decisions—State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998), and State v. Seems, 277 Kan. 303, 84 P.3d 606 (2004). In Larson, this court held that the State’s failure to plead the severity level in the DUI complaint did not render Larson’s conviction void, but instead restricted his sentence to that appropriate for a first-time offense. 265 Kan. at 164. In Seems, we held that the State must prove the prior convictions at the preliminary hearing in order to establish that a felony had been committed and there was probable cause to believe the felony had been committed by the defendant. 277 Kan. at 306.
The Elliott court rejected the contention that this meant the municipal court had handled misdemeanors and therefore had jurisdiction.
“[T]he State’s position is that none of the four municipal court DUI convictions could have been felony convictions because the State neither alleged nor proved the prior DUI convictions, as required by Larson and State v. Seems, 277 Kan. 303, 84 P.3d 606 (2004). But the State fails to note that the ‘remedy’ for the State’s failing to establish at Seems’ preliminary hearing that a felony had been committed and there was probable cause to believe that tire felony had been committed by the defendant was dismissal of the charges pursuant to K.S.A. 2005 Supp. 22-2902(3). Dismissal of the charges is not the same as prosecuting the charges in municipal court contrary to 8-1567(f) or (g). With prosecution of the charges in municipal court, the question of the lack of subject matter jurisdiction remains.” (Emphasis added.) Elliott, 281 Kan. at 591-92.
Cadoret, Lee, and Elliott are consistent in their position that it does not matter whether the municipal court conviction was charged and proven as a misdemeanor because the municipal ordinance on which that prosecution was based conflicted with a state statute, so there was no basis for the municipal court to exercise jurisdiction. This analysis effectively answers any attempt to distinguish Cadoret on the basis that the defendant had been charged with a third DUI offense.
Nevertheless, there remains a potential distinction between Cadoret and Elliott because they are DUI cases, and this case and Lee, which are not. This distinction arises because the DUI statute expressly prohibited cities from imposing penalties that were more harsh or lenient than the state statutory penalties. See K.S.A. 2006 Supp. 8-1567(o)(l). There is no similar provision in the theft statute at issue in Jenkins’ case or in the firearms statute at issue in Lee.
As we have noted, this difference did not matter in the Lee court’s analysis, but that was dicta. Nevertheless, the Lee court was applying a rule that has subsequently been reiterated: Cities can adopt an ordinance or resolution relating to a local police power, even though there is a state law on the subject uniformly applicable to all municipalities, as long as the ordinance or resolution does not conflict with the state statute. Blevins v. Heibert, 247 Kan. 1, 8, 795 P.2d 325 (1990) (“[A] municipality has the right to legislate by ordinary ordinance or resolution non-conflicting local police powers even though there are state laws on the subject uniformly applicable to all municipalities.”).
The Wichita petit theft ordinance was inconsistent with K.S.A. 21-3701 at the time Jenkins was prosecuted and convicted in that all thefts of property valued at under $1,000—regardless of the number of prior theft convictions of the offender—-were punished as a misdemeanor. This runs directly counter to the legislature’s statutoiy pronouncement that a third theft offense “is” a felony. To the extent the ordinance is in conflict with K.S.A. 21-3701(b)(6) in that manner, it cannot serve as a basis for the Wichita municipal court’s exercise of jurisdiction. Consequently, it does not matter that a prosecutor has discretion to decide the level of offense to charge.
As held in Cadoret and Elliott, a city ordinance that conflicts with a state statute by classifying the offense as a misdemeanor when the legislature has classified the crime as a felony does not vest the municipal court with jurisdiction. The Wichita city ordinance created that conflict by allowing all thefts of property valued at less than $1,000 to be prosecuted as misdemeanors even though the same crime would be classified as a felony under K.S.A. 21-3701(b)(6) when committed by a person previously convicted of two or more thefts.
Finally, Jenkins argues the municipal court lacked authority to sua sponte set aside a properly entered and accepted plea absent fraud, citing State v. Dillion, 242 Kan. 410, Syl. ¶ 2, 748 P.2d 856 (1988). But Dillion is not applicable because tire municipal court did not vacate the conviction sua sponte. The State filed a motion, and the municipal court acted on that motion. Furthermore, a conviction entered by a court that lacks jurisdiction is void. Elliott, 281 Kan. at 585. The municipal court could vacate Jenkins’ plea, and the State could prosecute him for felony theft.
Affirmed.
Moritz, J., not participating.
James Franklin Davis, District Judge, assigned.
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The opinion of the court was delivered by
Rosen, J.:
Raymond L. Ross, III, appeals from the imposition of lifetime postrelease supervision following his plea of guilty to aggravated indecent liberties with a child. He contends that the lifetime postrelease supervision constitutes cruel and unusual punishment under § 9 of the Kansas Constitution Rill of Rights and the Eighth Amendment to the United States Constitution. We disagree and affirm his sentence.
According to an affidavit filed by a Salina Police Department investigator, a 4-year-old boy told his mother that Ross, who was 19 years old, had engaged in sodomy and oral sex with him in January 2010. The affidavit further alleged that Ross admitted to oral sexual acts with the boy, although Ross denied engaging in pederasty. Ross entered a plea of guilty to one count of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3)(A). Ross had an extensive criminal history, with 14 convictions spanning a time from 2001 to 2009, including both adult and juvenile person felonies and misdemeanor convictions. The charge carries with it a presumptive life sentence with a mandatory minimum term of 25 years with lifetime postrelease supervision. See K.S.A. 21-4643(a)(1)(C).
Ross argued in presentencing motions that departure from the presumptive sentence would be appropriate under his circumstances and that imposition of lifetime postrelease supervision would constitute cruel and unusual punishment under both the Kansas Constitution and United States Constitution. The court entered a departure sentence of 162 months, but imposed the statutorily mandated lifetime postrelease supervision term.
Ross appealed, reiterating his constitutional arguments.
The statutory scheme mandates lifetime postrelease supervision. K.S.A. 21-4643(a)(l)(C) provides for a term of life imprisonment for aggravated indecent liberties with a child, with a mandatory minimum term of 25 years. K.S.A. 2009 Supp. 22-3717(d)(l)(G) provides for lifetime postrelease supervision for persons convicted of sexually violent crimes. The statute defines aggravated indecent liberties with a child to be a sexually violent crime. K.S.A. 2009 Supp. 22-3717(d)(2)(C).
K.S.A. 2009 Supp. 75-5217(c) provides that after conviction of a new felony, “upon revocation, the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment.” K.S.A. 2009 Supp. 75-5217(d) makes a return to custody discretionary with the Kansas Parole Board upon conviction of a misdemeanor.
As a consequence of these statutes, Ross is subject to mandatory lifetime postrelease supervision upon the completion of his prison term, and he faces possible return to prison for life for committing any felony or misdemeanor while under postrelease supervision. Both the requirements of postrelease supervision and the threat of imposition of a life sentence upon conviction of a misdemeanor or felony drive Ross’ argument that the statute is unconstitutional.
When determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual determinations. On appeal, the appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine whether it is sufficient to support the district court’s factual findings, but the legal conclusions that the district court draws from those facts are reviewed de novo. State v. Mossman, 294 Kan. 901, Syl. ¶ 1, 281 P.3d 153 (2012).
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 has the authority and the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009); see also State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008) (“It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.”)-
This court has set out a three-part test governing analysis of cruel or unusual punishment claims 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 injuiy resulting, and the penological purposes of tire 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 tire penalty with punishments in other jurisdictions for the same offense.” State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
The first prong of the Freeman test requires us to consider the nature of the offense and the character of the offender, with particular regard to the degree of danger he or she presents to society. Relevant factors are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injuiy resulting, and the penological purposes of the prescribed punishment.
By the age of 19, Ross already had a category B criminal histoiy. His prior convictions included multiple convictions for domestic batteiy and battery on a law enforcement officer. His current crime of conviction was committed against a 4-year-old boy, and the crime involved contact with the victim that was unambiguously sexual in nature.
A presentence psychological evaluation concluded: “Mr. Ross was finally able to acknowledge his version of abuse against the child victim. He has no insight into why he abused the child, though as is often observed in cases such as his, the victim’s age is very close to the age when he himself had been abused. This pattern of re-enacting one’s own abuse is a common pattern in the sex-offender population.”
This court has held that a sentence of 18 years at hard labor for possession and sale of marijuana was not cruel and unusual punishment. State v. Coutcher, 198 Kan. 282, 424 P.2d 865 (1967). A sentence of a minimum of 80 years to life for four counts of criminal indecent liberties and three counts of aggravated criminal sodomy was not so oppressive that it constituted an abuse of discretion. State v. Nunn, 247 Kan. 576, 578-80, 802 P.2d 547 (1990). The theft of tobacco cutters valued at $6 could be punished by a confinement of 5 years at hard labor without violating constitutional restraints. In re Tutt, 55 Kan. 705, 41 P. 957 (1895).
We note that Ross received a departure, reducing his period of incarceration from life imprisonment with a mandatory minimum term of 25 years to incarceration for 162 months. Even though the terms of his postrelease supervision will expose him to the potential for reincarceration for life, postrelease supervision itself is less onerous than the presumptive life sentence. If the life sentence itself would not be cruel or unusual, then the lighter sentence of lifetime supervision would also not be cruel or unusual.
Sexual crimes committed against minors are particularly heinous and produce particularly devastating effects on the victims, including physical and psychological halm. Furthermore, sex offenders pose a high risk of recidivism. See Mossman, 2012 WL 3056041, at *7.
The evidence before the district court and before this court shows that Ross has a demonstrated history of violent crimes and that he has little understanding of the gravity of the crime at issue on appeal. His crime was committed against a very young and vulnerable victim. The record suggests that Ross constitutes a significant risk to society, that he will commit crimes of violence again. He can overcome this perception of danger by refraining from criminal activity following his release, but neither the Kansas Constitution nor the United States Constitution require that he be afforded an opportunity to demonstrate his ability and willingness to comply with the law. As we noted in Mossman: “Postrelease supervision is largely designed to act as a deterrent to future crime, a goal that is particularly legitimate given sex offenders’ higher rate of recidivism.” Mossman, 2012 WL 3056041, at *7.
The district court considered Ross’ psychological report, his probationary status from other offenses, and his criminal history, as well as the victim’s age and the proclivity of sex offenders to reof-fend. We conclude that the evidentiary record supports the district court’s findings, and we also conclude that those findings weigh against a determination that lifetime postrelease supervision is cruel or unusual as it applies to Ross’ circumstances.
This court has recently addressed the second and third Freeman factors as they relate to lifetime postrelease supervision. We have held that such a sentence is not constitutionally disproportionate to the sentences imposed for other, possibly “more serious,” crimes in Kansas and is not disproportionate to the punishments imposed in other jurisdictions for similar offenses. Mossman, 2012 WL 3056041, at *13; State v. Cameron, 294 Kan. 884, Syl. ¶ 1, 281 P.3d 143 (2012). Ross does not produce new arguments inviting reconsideration of those holdings.
Ross also argues that lifetime postrelease supervision is unconstitutionally cruel and unusual under the Eighth Amendment to the United States Constitution.
An Eighth Amendment challenge to a term-of-years sentence as disproportionate and therefore cruel and unusual falls into two general classifications. The first classification involves arguments that tire term of years is grossly disproportionate based on all the circumstances of a particular case. The second classification encompasses cases in which the court implements the proportionality standard based on certain categorical restrictions. State v. Woodard, 294 Kan. 717, Syl. ¶ 2, 280 P.3d 203 (2012).
When conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate under the circumstances of a particular defendant’s crime, a court initially compares the gravity of the offense with the severity of the sentence. This analysis may consider the offender’s mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender’s conduct, any prior criminal history of the offender, and the offender’s propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court then compares the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual. Ewing v. California, 538 U.S. 11, 22, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003); Woodard, 294 Kan. at 721, 280 P.3d at 207.
The United States Supreme Court has held that the Eighth Amendment does not require strict proportionality between a crime and a sentence; rather, it forbids only extreme sentences that are grossly disproportionate to crime. Ewing, 538 U.S. at 20-21. A life sentence can be constitutional, even for a nonviolent property crime. See Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)'(upholding a life sentence with the possibility of parole, imposed under a Texas recidivist statute, for a defendant convicted of obtaining $120.75 by false pretenses, an offense normally punishable by imprisonment for 2 to 10 years); Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (upholding a sentence of life without the possibility of parole for a defendant convicted of possessing more than 650 grams of cocaine, although it was his first felony offense).
Our analysis under the Freeman factors for the Kansas constitutional challenge applies with equal force to the first of the classifications for an Eighth Amendment challenge. Ross has a lengthy criminal history; he violated the personal integrity of a veiy young victim; and he showed little understanding of his actions. We conclude that Ross fails to sustain the threshold requirement of proving gross disproportionality under the Eighth Amendment to the United States Constitution.
We recently concluded that a sentence of lifetime postrelease supervision under K.S.A. 22-3717(d)(l)(G) for aggravated indecent liberties with a child is also not categorically disproportionate, even for first-time sex offenders, and is therefore not cruel and unusual under the Eighth Amendment. Mossman, 294 Kan. 901, Syl. ¶ 9; Cameron, 294 Kan. 884, Syl. ¶ 3. We find nothing in Ross’ argument that would lead us to revisit that issue.
The sentence imposed by the district court is affirmed. | [
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Per Curiam.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Christopher Y. Meek, of Baxter Springs, an attorney admitted to the practice of law in Kansas in 1979.
On December 16, 2011, the office of the Disciplinaiy Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). After a motion to file an answer out of time was granted by order, the respondent filed an answer and a stipulation on February 10, 2012. The respondent filed a proposed probation plan on April 4, 2012. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 18, 2012, when the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.7(a)(2) (2011 Kan. Ct. R. Annot. 484) (conflict of interest: current clients) and 8.4(b) (2011 Kan. Ct. R. Annot. 618) (misconduct).
The panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“7. On October 13, 2010, [a] grand jury returned an indictment and charged the Respondent with violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 by knowingly and intentionally aiding and abetting the manufacture of marijuana, violating 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 by knowingly and intentionally maintaining a place for the purpose of manufacturing marijuana, and violating 21 U.S.C. § 844 by knowingly and unlawfully possessing hydrocodone.
“8. Sixteen months later, on February 25, 2011, the Respondent entered a plea of guilty to violating 21 U.S.C. § 844 by knowingly and unlawfully possessing hydrocodone. In return for the Respondent’s plea of guilty to knowingly and unlawfully possessing hydrocodone, the United States Attorney dismissed the charges related to the manufacture of marijuana.
“9. 21 U.S.C. § 844 provides, in pertinent part, as follows:
‘It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter.’
“10. In the written plea agreement, the Respondent provided the following factual basis for the guilty plea:
‘In 2009, the defendant was an attorney licensed to practice in Kansas. Prior to September of 2009, law enforcement officials received information the defendant was obtaining prescription medication from clients. Kansas Bureau of Investigation (KBI) agents were able to corroborate these reports in 2009 when the defendant met with a client and obtained from the client prescription pain medication. KBI agents executed a search warrant at the defendant’s office located at 1031 Military Avenue in Baxter Springs, Kansas, on September 1, 2009, after a client delivered 25 Hydrocodone tablets to the defendant. The tablets were recovered from the defendant’s office in his desk drawer. The defendant did not have a prescription for this medication.’
“11. On March 7, 2011, the Respondent entered into a Substance Abuse Monitoring Contract with the Kansas Lawyers Assistance Program (KALAP). The KALAP monitoring contract covered a five-year time period and is set to terminate on February 25, 2016.
“12. In the KALAP monitoring agreement, the Respondent agreed to allow a monitor [to] supervise his compliance with the agreement. The Respondent agreed to have weeldy contact with his KALAP monitor or the Executive Director of KALAP. The Respondent agreed to remain abstinent from alcohol and other mind altering drugs, other than medications prescribed by a physician. The Respondent agreed to report himself if he failed to maintain his abstinence. The Respondent agreed to attend three AA meetings weeldy and document his attendance. The Respondent agreed to work with an AA sponsor. Finally, the Respondent agreed to submit to random drug screens. The Respondent is in compliance with the KALAP monitoring contract.
“13. On May 18, 2011, the United States District Court for the District of Kansas fined the Respondent $2,000 and placed the Respondent on probation for two years. The Respondent’s terms and conditions of his federal probation are as follows:
‘The defendant shall not commit another federal, state, or local crime.
‘The defendant shall not unlawfully possess a controlled substance.
‘The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of placement on probation and at least two periodic drug tests thereafter, as determined by the court.
‘The defendant must comply with the standard conditions that have been adopted by this court as well as any additional conditions on the attached page.
‘Standard Conditions of Probation
T) the defendant shall not leave the judicial district without the permission of the court or probation officer;
‘2) die defendant shall report to the probation officer and shall submit a truthful and complete written report within die first five days of each month;
‘3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
‘4) the defendant shall support his or her dependents and meet other family responsibilities;
‘5) die defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons;
‘6) die defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
‘7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
‘8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
‘9) the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;
TO) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;
Tl) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
T2) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court;
T3) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.
‘Special Conditions of Supervision
T. For officer safety purposes, the defendant is prohibited from possessing or purchasing a firearm, ammunition, destructive device, or other dangerous weapon.
‘2. The defendant shall abstain from the use of alcohol during the term of supervision.
‘3. The defendant shall obtain a substance abuse evaluation and follow any recommendations at the discretion of the U.S. Probation Office. If substance abuse treatment is recommended, the defendant shall successfully participate in an approved program for substance abuse, which may include urine, breath, or sweat patch testing, outpatient and/or residential treatment, and share in the costs, based on the ability to pay. The defendant shall abstain from the use of alcohol and other intoxicants during said treatment program as directed by the Probation Office.’
The Respondent has complied with the terms and conditions of his federal probation.’
“Conclusions of Law
“14. Based upon the Respondent’s stipulation and the above findings of fact, tire Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.7(a)(2) and KRPC'8.4(b), as detailed below.
“KRPC 1.7
“15. KRPC 1.7 provides:
‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.’
The factual basis supporting the Respondent’s plea to unlawfully possessing hydrocodone establishes that he ‘obtainfed] prescription medication from clients.’ The Respondent did not have a prescription for hydrocodone. Unlawfully accepting prescription drugs from a client creates a substantial risk that the Respondent’s personal interest will materially limit the Respondent’s representation of the client. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.7(a)(2).
“ICRPC 8.4(b)
“16. ‘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, die Respondent entered a plea of guilty to unlawful possession of hydrocodone. The conviction for the drug offense adversely reflects on the Respondent’s fitness as a lawyer in other respects. Accordingly, the Hearing Panel concludes that die Respondent violated KRPC 8.4(b).
“American Bar Association Standards for Imposing Law Sanctions
“17. In making diis 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, die potential or actual injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“18. Duty Violated. The Respondent violated his duty to his clients, the public, and the legal profession to maintain his personal integrity.
“19. Mental State. The Respondent knowingly violated his duty.
“20. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injuiy to the legal profession.
“Aggravating and Mitigating Factors
“21. 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:
“22. Selfish Motive. Accepting prescription medication from a client is a selfish act.
“23. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted die Respondent to practice law in the State of Kansas in 1979. At the time of die misconduct, the Respondent has been practicing law for approximately 30 years.
“24. Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct. The Respondent unlawfully possessed prescription drugs. Further, the Respondent received the hydrocodone from his client.
“25. 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:
“26. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“27. Absence of a Dishonest Motive. The Respondent’s misconduct does not appear to have been motivated by dishonesty.
“28. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from alcoholism and drug addiction. It is clear that die Respondent’s alcoholism and drug addiction contributed to his misconduct.
“29. The Present and Past Attitude of the Attorney as Shoton by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent fully cooperated with the disciplinary process. Additionally, the Respondent admitted the facts that gave rise to the violations.
“30. 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 is an active and productive member of the bar of Baxter Springs, Kansas. The Respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by many letters reviewed by the Hearing Panel.
“31. Imposition of Other Penalties or Sanctions. As a result of the Respondent’s conviction, the federal court fined the Respondent $2,000.00 and placed the Respondent on probation for two years.
“32. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“Recommendation
“33. The Disciplinary Administrator recommended that the Respondent be disbarred. The Respondent recommended that his plan of probation be adopted and that the Respondent be allowed to continue practicing law.
“34. In order for the Hearing Panel to consider recommending that the Respondent be placed on probation, the Respondent must first comply with Kan. Sup. Ct. R. 211(g)(1) and Kan. Sup. Ct. R. 211(g)(2). Additionally, the Hearing Panel must then consider, based upon the factors detailed in Kan. Sup. Ct. R. 211(g)(3), whether to recommend to the Court that the Respondent be placed on probation.
‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinaiy Administrator with a workable, substantial, and detailed plan of probation at least fourteen days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court.
‘(2) If the Respondent provides each member of the Plearing Panel and the Disciplinaiy Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
In this case, the Respondent developed a workable, substantial, and detailed plan of probation. Additionally, the Respondent provided a copy of the proposed plan of probation to the Disciplinaiy Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint. Also, die Respondent put the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of die probation plan. Further, the Respondent’s misconduct can be corrected by probation. Finally, placing the Respondent on probation is in die best interests of die legal profession and the citizens of die State of Kansas.
“35. Based upon the stipulations, the findings of fact, die conclusions of law, die applicable ABA Standards, and Kan. Sup. Ct. R. 211(g), die Hearing Panel unanimously recommends that the Court suspend die Respondent’s license to practice law for a period of one year. The Hearing Panel further recommends that the Court place [Respondent] on probation for a period of time to coincide with Ae term of his contract wiA KALAP, terminating on February 25, 2016. The Hearing Panel further recommends Aat the Respondent’s probation be made subject to Ae following terms and conditions:
‘a. Abstinence. The Respondent shall remain abstinent from alcohol and all oAer mind-altering drugs, except medications prescribed by a medical doctor. In Ae event Ae Respondent is prescribed a mind-altering drug by a medical doctor, Ae Respondent shall imme&ately inform Ae Executive Director of KALAP, the KALAP monitor, and the Disciplinary Administrator’s office. The Respondent shall execute appropriate releases so that Ae me&cal doctor may Ascuss Ae prescription of Ae me&cation wiA Ae Director of KALAP, Ae KALAP monitor, and Ae Disciplinary Administrator’s office. Beginning July 1, 2012, Ae Respondent shall provide Ae Disciplinary Administrator wiA a report regarding Ae Respondent’s compliance wiA this term of probation.
‘b. Aftercare. In September, 2009, Ae Respondent completed inpatient treatment wiA Valley Hope in Atchison, Kansas. Upon release from inpatient treatment, Ae treatment facility recommended Aat Ae Respondent participate in aftercare. The Respondent shall execute appropriate releases so that Valley Hope may provide information to the Executive Director of KALAP, the KALAP monitor, and Ae Disciplinary Administrator. The Respondent shall continue participating in aftercare pursuant to the Ascharge recommendations. Beginning July 1, 2012, Ae Respondent shall provide quarterly reports to Ae Disciplinary Administrator regar&ng his compliance with Ae aftercare program recommended by Valley Hope.
‘c. Alcohol and Drug Evaluation. As a condition of Ae Respondent’s federal criminal probation, Ae Respondent submitted to an alcohol and drug evaluation. Within 14 days of this report, Ae Respondent shall execute appropriate releases so Aat Ae Executive Director of KALAP, Ae Respondent’s KALAP monitor, each member of Ae Hearing Panel, and Ae Disciplinary Administrator’s office may receive a copy of Ae report of the alcohol and drag evaluation. After Ae appropriate releases have been executed and within 30 days of Ae date of Ais report, Ae Respondent shall provide Ae Executive Director of KALAP, the KALAP monitor, each member of Ae Hearing Panel, and Ae Disciplinary Administrator’s office with a copy of Ae alcohol and drug evaluation. Further, the Respondent shall comply with all recommendations contained in Ae report for treatment, aftercare, meetings, relapse prevention, as well as recommendations Aat may arise during Ae treatment, aftercare, meetings, and relapse prevention. If the Respondent fails to comply wiA Ae recommendations contained in Ae report or as may arise during Ae treatment, aftercare, meetings, or relapse prevention, the Respondent shall imme&ately report his lack of compliance to Ae Disciplinary Administrator. Beginning July 1, 2012, the Respondent shall provide quarterly reports to Ae Disciplinary Administrator regarding his compliance with the recommendations contained in the report of the alcohol and drug evaluation.
‘d. Substance Abuse Monitoring Contract. On March 7, 2011, the Respondent entered into a Substance Abuse Monitoring Contract. Within fourteen days of the date of this report, the Respondent shall execute appropriate releases so that the Executive Director of KALAP, other KALAP staff, and the Respondent’s KALAP monitor may discuss the Respondent’s compliance with the contract with the Disciplinary Administrator’s office. The Respondent shall comply with each and every term of the Substance Abuse Monitoring Contract. If the Respondent fails to comply with the terms of the Substance Abuse Monitoring Contract, the Executive Director, other KALAP staff, and the KALAP monitor shall immediately report tire Respondent’s lack of compliance with tire Disciplinary Administrator’s office. If the Respondent fails to comply with the terms of the Substance Abuse Monitoring contract, the Respondent shall immediately report his lack of compliance to the Disciplinary Administrator. Beginning July 1, 2012, the KALAP monitor and the Respondent shall provide quarterly reports to the Disciplinary Administrator including current information regarding the Respondent’s compliance with each and every term of the Substance Abuse Monitoring Contract.
‘e. Federal Probation. Currently, the Respondent is on federal probation. Beginning July 1, 2012, the Respondent shall provide quarterly reports regarding his status on federal probation. If the Respondent violates his federal probation, the Respondent shall immediately report the violation to the Disciplinary Administrator. In the event the Respondent is released from federal probation, the Respondent shall provide a final report regarding his federal probation, with documentary support of his release from federal probation.
‘f. Random Drug Screens. Currently, the Executive Director of KALAP, the KALAP monitor, and the federal probation officer require the Respondent to submit to random drug screens. Within 14 days of the date of this report, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a copy of each and every drug screen test results since September 1, 2009, requested by tire federal probation officer, the Executive Director of KALAP, and KALAP monitor. The Respondent shall comply with any and all requests made by the Director of KALAP, the KALAP monitor, and the federal probation officer. In addition, the Disciplinary Administrator may require the Respondent to submit to random drug screens at a drug testing center selected by the Disciplinary Administrator. The Respondent shall be responsible for all costs associated with the random drug screens. If the Disciplinary Administrator directs the Respondent to appear at a specific drug testing center for a random drug screen, the Respondent shall appear at the drug testing center wdffiin eight hours.
‘g. Continuing Legal Education. The Respondent shall successfully complete 16 hours of continuing legal education prior to June 15, 2013, including six ethics hours, which amounts to four additional ethics continuing legal education hours for the 2012-2013 compliance period.
'h. Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinaiy Administrator. If tire Disciplinary Administrator requests any additional information, the Respondent shall timely provide such information.
‘i. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct.
In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the KALAP monitor and the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.
“36. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ 'evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hearing before the panel and the hearing before this court. The respondent filed no exceptions to the hearing panel’s final hearing report. The panel’s findings of fact are thus deemed admitted. See Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352).
The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore also adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline. At the hearing before this court, the office of the Disciplinary Administrator recommended that the respondent be disbarred because the respondent committed a criminal offense when he obtained prescription drugs from a client. As justifications for the sanction of disbarment, the office of the Disciplinary Administrator noted that the criminal offense occurred in the context of an attorney-client relationship; the respondent exploited the attorney-client relationship for his personal reasons; the client was vulnerable; and the conduct was serious and implicated the client in criminal conduct. The respondent requested that his plan of probation be adopted and that he be allowed to continue to practice law. The hearing panel unanimously recommended that the respondent be suspended from the practice of law for 1 year and that the suspension be followed by a period of probation coinciding with respondent’s contract with KALAP, which expires on February 25, 2016, approximately 40 months from the date of this decision.
As the panel noted, ABA Standards 4.32, 5.12, and 7.2 suggest that suspension, not disbarment, is appropriate in this case. On the other hand, these standards also suggest that the serious nature of this offense means probation is not a sufficient sanction. In considering the seriousness of the offense, we are especially troubled that respondent created a conflict of interest for personal gain and in doing so placed his client at risk. We are also concerned about the safety of the public when the respondent resumes practicing law given tire respondent’s long-term issues with alcohol and drugs. Consequently, we conclude a period of probation is appropriate to allow monitoring. A minority of the court would impose a shorter period of suspension and probation than imposed by the majority.
Conclusion and Discipline
It Is Therefore Ordered that Christopher Y. Meek be suspended from the practice of law in the state of Kansas for a period of 40 months in accordance with Supreme Court Rule 203(a)(2) (2011 Kan. Ct. R. Annot. 280), effective on the filing of this opinion. After respondent has served 12 months of suspension, the remaining 28 months of suspension will be stayed, and respondent will be placed on probation for a period of 28 months under the terms and conditions set forth above in the hearing panel’s recommendations.
It Is Further Ordered that if Christopher Y. Meek fails to abide by the terms and conditions of his probation, a show cause order shall issue to the respondent.
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas reports.
Nuss, C.J., not participating.
David E. Bruns, Judge, assigned. | [
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The opinion of the court was delivered by
Moritz, J.:
In 2007, Coffeyville Resources Refining and Marketing, LLC (Coffeyville Resources) accidentally released about 90,000 gallons of crude oil into floodwaters of the Verdigris River in Coffeyville. In 2010, Benjamin and Marcita Eastman, as Trustees of the Eastman Family 1999 Revocable Trust (the Eastmans), filed an action in federal court alleging the oil spill damaged their pecan grove. Eastman v. Coffeyville Res. Ref. & Mktg., LLC, No. 6:10-CV-01216-MLB (D. Kan. petition filed June 30, 2010). The Eastmans initially asserted a continuing nuisance claim but later asserted a statutory right to recover damages under K.S.A. 65-6203 which requires “any person responsible for an accidental release or discharge of materials detrimental to the quality of the waters or soil of the state” to “[c]ompensate the owner of the property where die release or discharge occurred for actual damages incurred as the result of the release or discharge.”
In the federal action, Coffeyville Resources admitted potential liability under K.S.A. 65-6203 but argued the Eastmans’ claim was barred by the 2-year statute of limitations in K.S.A. 60-513(a)(4). But the Eastmans contended they timely filed dieir action under the 3-year statute of limitations in K.S.A. 60-512(2) which applies to “[a]n action upon a liability created by a statute other than a penalty or forfeiture.” Specifically, the Eastmans argued K.S.A. 65-6203 creates an “absolute” liability different in land than the strict liability doctrine applied under Kansas common law and therefore the 3-year limitation period applies.
The Honorable Monti L. Belot, United States District Court Judge, District of Kansas, certified six questions to this court under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Four of those questions related to the Eastmans’ continuing nuisance claim, but the Eastmans have abandoned that claim and now are pursuing only a claim under K.S.A. 65-6203. Thus, only two questions remain: (1) whether K.S.A. 65-6203 creates absolute liability, and (2) which statute of limitations, if any, applies to K.S.A. 65-6203?
Factual and Procedural Background
The following undisputed facts are set forth in the certification order:
“1. The Coffeyville Resources refinery, located adjacent to the Verdigris River in Coffeyville, Kansas, processes crude oil and its constituents on a continuous basis.
“2. Plaintiffs are trustees of property located near Coffeyville, Kansas, in close proximity to the Verdigris River, approximately two or more miles downstream of the Coffeyville Resources refinery.
“3. On July 1, 2007, an unprecedented 100 year flood of the Verdigris River necessitated an emergency shutdown of the Coffeyville Resources refinery.
“4. During the emergency shutdown, approximately 80,000 gallons (over 1900 barrels) of crude oil, 5,000 gallons of diesel oil, and 4,000 gallons of crude oil fractions were accidentally released into the flood waters.
“5. The crude oil release was terminated within an hour or two of its inception.
“6. Defendant mobilized clean-up crews, while monitored by the Environmental Protection Agency (EPA), to clean up oil on public and private property.
“7. Plaintiffs filed this lawsuit on June 30, 2010, alleging that oil carried by the flood waters impacted their pecan grove, thus causing a continuing nuisance.
“8. Plaintiffs allege that this incident is ‘continuing’ because defendant has not cleaned up the oil that impacted their pecan grove. Plaintiffs allege that oil remains on their property and continues to impact their annual pecan harvests.”
Discussion
This court exercises unlimited review over certified questions which, by definition, are questions of law. Burnett v. Southwestern Bell Telephone, 283 Kan. 134, 136, 151 P.3d 837 (2007). Additionally, both questions in this case require statutory interpretation which is also subject to our unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The most fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). Our first task in interpreting a statute is to read the plain language of the statute, giving ordinary words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).
1. Does K.S.A. 65-6203 create absolute liability?
With the first certified question, we are asked to determine whether K.S.A. 65-6203 creates absolute liability. To determine the nature of the liability, if any, created by the statute, it is helpful to first discuss the common-law approach to strict liability in Kansas.
Strict Liability Under Kansas Common Law
We have defined strict liability as “liability imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of duty to exercise reasonable care (i.e., actionable negligence).” Williams v. Amoco Production Co., 241 Kan. 102, 112-13, 734 P.2d 1113 (1987).
We recently clarified that under Kansas common law, all strict liability claims in tort are governed by the abnormally dangerous activity test from the Restatement (Second) of Torts §§ 519 and 520 (1976). City of Neodesha v. BP Corporation, (No. 101,183, opinion filed August 31, 2012, slip op. at 19-20, 25-26); see Williams, 241 Kan. at 114-15 (adopting tie abnormally dangerous activity test as set forth in Restatement [Second] of Torts §§ 519 and 520). As cited in Williams, Restatement (Second) of Torts § 519 provides:
“ ‘(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
“ ‘(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.’ ” Williams, 241 Kan. at 114.
The Williams court also adopted Section 520 of the Restatement, which lists factors to be considered in determining whether an activity is abnormally dangerous:
“ ‘(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
“ ‘(b) likelihood that the harm that results from it will be great;
“ ‘(c) inability to eliminate the risk by the exercise of reasonable care;
“ ‘(d) extent to which the activity is not a matter of common usage;
“ ‘(e) inappropriateness of the activity to the place where it is carried on; and
“ ‘(f) extent to which its value to the community is outweighed by its dangerous attributes.’ ” 241 Kan. at 114.
Liability Under KS.A. 65-6203
K.S.A. 65-6203 provides:
“(a) It shall be the duty of any person responsible for an accidental release or discharge of materials detrimental to the quality of the waters or soil of the state to: (1) Compensate the owner of the property where the release or discharge occurred for actual damages incurred as the result of the release or discharge, or as the result of corrective action taken or access to take corrective action, if the release or discharge occurred without any contribution to the contamination and without any causal connection to tire release or discharge by any action of the owner or owner-permitted occupant of the property; and (2) comply with all existing rules and regulations and requirements of the secretary of health and environment designed to ensure the prompt correction of any such release or discharge for the protection of the public health and environment.
“(b) Any owner or subsequent purchaser of land, upon which there has occurred an accidental release or discharge of materials detrimental to the quality of the waters or soil of the state, which occurred without any contribution to the contamination and without any causal connection to the release or discharge by any action of the owner or the owner-permitted occupant of the property, shall not be hable for any costs of subsequent remedial action required as a result of changes in standards adopted after the time of such accident, if such owner or purchaser can demonstrate that: (1) The persons responsible for tire correction of the release or discharge were allowed timely and adequate access to perform the duty imposed by subsection (a)(2), upon reasonable prior assurance that any actual damages incurred as the result of allowing access will be promptly reimbursed, and die secretary of healtír and environment, or the secretary’s agents, were allowed timely and adequate access to oversee the corrective action; and (2) fire secretary of health and énvironment has approved the corrective action and certified that the action taken has met all requirements and rules and regulations of the secretary, or conditions of administrative orders or agreements which were in effect at the time of the accidental release or discharge. The provisions of this section shall apply to bodi releases and discharges and remedial actions taken prior to the effective date of this act and releases and discharges and remedial actions taken hereafter.
“(c) The secretary of health and environment is hereby authorized to adopt rules and regulations necessary for the administration of the provisions of this section.
“(d) Neither the state, nor any officer, employee or department of die state, shall incur any liability by reason of approval of any corrective action plan or any certification pursuant to this section.
“(e) The provisions of this section shall not apply to any release or discharge under tire jurisdiction of the state corporation commission.”
Like our common-law concept of strict liability, K.S.A. 65-6203 imposes a duty on the responsible party to compensate the injured owner absent any intent to interfere with a legally protected interest and absent any actionable negligence. But unlike the common-law concept of strict liability, K.S.A. 65-6203 contains no "abnormally dangerous activity” requirement. Thus, it appears K.S.A. 65-6203 imposes a liability that differs in kind from the abnormally dangerous standard for strict liability claims we adopted in Williams.
Despite the absence of the “abnormally dangerous activity requirement” in K.S.A. 65-6203, Coffeyville Resources contends the statutory language is ambiguous and urges us to find that the legislature did not intend for the statute to create a liability different in land than that developed in Williams or its progeny. In support, Coffeyville Resources devotes much of its appeal brief to a discussion of the legislative history of K.S.A. 65-6203.
Specifically, Coffeyville Resources argues the legislation originally was drafted in order to “ensure that after releases of contaminants were cleaned up by responsible parties in compliance with Kansas state law, the damaged landowners would be released from future liability.” Coffeyville Resources points out that that K.S.A. 65-6203 as originally drafted, focused on this purpose and did not contain section (a)(1), which it characterizes as “the subsection that provides for payment of actual damages to the owner of contaminated property.”
While Coffeyville Resources’ argument might be persuasive if K.S.A. 65-6203 as ultimately enacted omitted section (a)(1), the simple fact is that the legislature not only chose to include section (a)(1) in the final enactment, it did so with clear and unambiguous language. Because the plain language of K.S.A. 65-6203 is clear and unambiguous, we do not look to legislative history to assist in interpreting the statute. Instead, we give effect to the legislative intention as expressed in the statutory language. See Bergstrom, 289 Kan. at 607; Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009); see also Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 464-65, 228 P.3d 403 (2010) (“[A]ppellate courts cannot delete vital provisions or add vital omissions to a statute if the legislature failed to enact the change as intended under any reasonable interpretation of the language used, regardless of the legislature’s intention. Only the legislature may remedy these types of error.”).
The clear and unambiguous language of K.S.A. 65-6203(a)(l) provides that any person responsible for the accidental release or discharge of materials detrimental to the quality of the waters or soil of die state has a “duty” to “[compensate the owner of the property where the release or discharge occurred for actual damages incurred as the result of the release or discharge, or as the result of corrective action taken or access to take corrective action,” unless the owner or “owner-permitted occupant” of the damaged property had a “causal connection” to the release or discharge or contributed to the contamination.
Thus, like our common-law strict liability standard, K.S.A. 65-6203(a) imposes a duty on the responsible party to compensate an innocent landowner and to take corrective action in compliance with existing public health standards regardless of any intent, negligence, or misconduct of the person responsible for the accidental release or discharge. But unlike our common-law strict liability standard, K.S.A. 65-6203(a) does not consider whether the responsible party was engaged in an abnormally dangerous activity.
In reaching this conclusion, we note that the certified question asks us to determine whether K.S.A. 65-6203 creates “absolute liability.” This question implies that there is a distinction between “strict liability” and “absolute liability.” But these two terms are often used synonymously. See Black’s Law Dictionary 8 (9th ed. 2009) (referring to “strict liability” for definition of “absolute liability”); Gamer, A Dictionary on Modern Legal Usage 836 (2d ed. 1995) (noting the terms are “broadly synonymous”). And we see no reason to create the potential for confusion by designating the liability created by K.S.A. 65-6203 as “absolute liability.” More importantly, the statue speaks for itself. The statute broadly mandates that any person responsible for an accidental release or discharge of material detrimental to the quality of the waters or soil of the state must compensate an innocent landowner for actual damages and must clean up the spill. Accordingly, we cannot provide a simple yes-or-no answer to the first certified question. Instead, we answer the first certified question as follows: K.S.A. 65-6203 imposes liability for an accidental release or discharge of materials detrimental to the quality of the waters or soil of the state that differs from our Kansas common-law strict liability standard. While both the common-law standard and the statute provide for liability absent any showing of intent, negligence, or misconduct on the part of the responsible party, only the statute provides for liability absent any showing that the responsible party was engaged in an abnormally dangerous activity.
2. What statute of limitations, if any, applies to K.S.A. 65-6203?
Having determined the nature of the liability imposed by K.S.A. 65-6203, we next address the second certified question: Which statute of limitations, if any, applies to K.S.A. 65-6203?
Because K.S.A. 65-6203 contains no specific statute of limitations, we look to K.S.A. 60-501 et seq. for the appropriate statute of limitations. See K.S.A. 60-501 (“The provisions of this article govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute.”); Kelly v. Primeline Advisory, Inc., 256 Kan. 978, 983, 889 P.2d 130 (1995) (applying general statute of limitations when statute in question did not contain specific statute of limitations).
The Eastmans contend this action was timely filed under K.S.A. 60-512(2), which provides a 3-year limitation period for “[a]n action upon a liability created by a statute other than a penalty or forfeiture.” K.S.A. 60-512(2).
Coffeyville Resources contends K.S.A. 65-6203 creates no new liability and therefore K.S.A. 60-512(2) does not apply. Instead, Coffeyville Resources urges us to apply the 2-year limitation period of K.S.A. 60-513(a)(4) for injuries to the rights of another, not arising from contract or otherwise enumerated in K.S.A. 60-513(a).
To determine whether K.S.A. 60-512(2)’s 3-year limitation period for “[a]n action upon a liability created by a statute other than a penalty or forfeiture” applies in this case, we apply an “identical-elements” test. Under that test, we consider “whether a plaintiff would have had tire same cause of action at common law, not any cause of action.” McCormick v. City of Lawrence, 278 Kan. 797, 804, 104 P.3d 991 (2005); see Burnett, 283 Kan. at 150-54 (discussing identical-elements test but finding it unnecessary to apply the test when no cause of action equivalent to the plaintiff s ERISA claim existed at common law); McCormick, 278 Kan. at 804, 806-07 (concluding K.S.A. 22-2521 and K.S.A. 22-2522 created substantive rights not recognized at common law because “although one can imagine several common-law tort claims which might be brought based upon tire facts alleged in this case . . . those torts involve different elements than what must be shown to establish a violation of the strip search and body cavity search statutes”); Kelly, 256 Kan. at 982-83 (applying K.S.A. 60-512[2] to a securities fraud action under K.S.A. 17-1268[a] after concluding the statute “created new, substantive rights and liabilities not existing under common law” because “[f]raud-based actions under 17-1268[a] are not identical to common-law fraud actions”).
The identical-elements test requires that we ascertain the most analogous cause of action under Kansas law. Burnett, 283 Kan. at 150-51, 154; see McCormick, 278 Kan. at 804-07. If an analogous common-law cause of action exists, we compare the elements of that action with the elements of the statute in question. If the statutory elements are not identical to the elements of the most analogous common-law cause of action, K.S.A. 60-512(2) applies. Burnett, 283 Kan. at 150-51; McCormick, 278 Kan. at 804-07.
Here, the Eastmans contend the statutory liability created under K.S.A. 65-6203 differs from our common-law strict liability, thus K.S.A. 60-512(2) applies. Conversely, Coffeyville Resources argues K.S.A. 60-513(a)(4) applies because K.S.A. 65-6203 merely codifies the common-law strict liability doctrine against those responsible for the release of oil or chemicals that cause damage to the property of another.
But Coffeyville Resources’ argument ignores the basis of the modern doctrine of strict liability adopted in Williams—i.e., that to impose strict liability, a plaintiff must establish that the defendant engaged in an abnormally dangerous activity. See Williams, 241 Kan. at 114-16; see also City of Neodesha, (No. 101,183, slip op. at 19-20, 25-26) (holding that all strict liability claims in Kansas are governed by abnormally dangerous activity doctrine adopted in Williams); Pullen v. West, 278 Kan. 183, 189, 92 P.3d 584 (2004) (strict liability applies only if the defendant engages in an abnormally dangerous activity).
In contrast, K.S.A. 65-6203 requires no consideration of the type of activity engaged in by the responsible party or of any other circumstances surrounding an accidental release or discharge of harmful materials. Instead, the statute broadly mandates that any person responsible for an accidental release or discharge of material detrimental to the quality of tire waters or soil of the state must compensate an innocent landowner for actual damages and must clean up the spill. See K.S.A. 65-6203(a); see also Vowell v. Coffeyville Res. Ref. & Mktg., 2011 WL 1484239, at *7 n.51 (D. Kan. 2011) (unpublished opinion) (finding in a related case that 3-year statute of limitations applied to actions brought under K.S.A. 65-6203[a] because, in contrast to common-law strict liability actions, to recover under K.S.A. 65-6203[a] a plaintiff “need only show that the defendant allowed oil to be released and, due to this release, his property has been damaged”).
Because the elements necessary to establish liability imposed under K.S.A. 65-6203 are not identical to tire elements necessary to impose liability under the common-law doctrine of strict liability, we conclude K.S.A. 65-6203(a) imposes a new, substantive right not recognized at common law. Thus, the answer to the second certified question is that the 3-year statute of limitations in K.S.A. 60-512(2) applies to actions brought under K.S.A. 65-6203. | [
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The opinion of the court was delivered by
Biles, J.:
Michael Garza challenges a Court of Appeals decision to reverse a district court’s order suppressing drug evidence obtained during a traffic stop. Garza argues no jurisdiction existed for the appellate court to consider the State’s appeal of the suppression order and that the Court of Appeals erred in finding the requisite reasonable suspicion existed to support die initial stop. We affirm the court’s jurisdiction, reverse the appellate panel’s determination that substantial competent evidence supported the traffic stop, and remand to the district court for additional factual findings regarding whedier there was reasonable suspicion to support the stop.
Factual and Procedural Background
Shortly after 2 a.m. on a clear and dry night, a Ulysses police officer traveling south down a city road observed what he believed to be one headlight of an oncoming car, traveling north, cross over into the officer’s lane and then cross back before making a right-hand turn. The road was a two-way traffic street, meaning traffic traveled in both directions. It contained a clearly marked double yellow line in the center, indicating a no passing zone.
The officer testified that he observed the car cross over from 2 blocks away, but he admitted that he could not actually see the centerline at that distance in the dark. When asked whether he knew whether the driver crossed tire center line, the officer testified that “[y]ou can’t actually tell where he was at, but by the way the headlight is, you can tell that he crossed the center line being in my lane.” These events were recorded by the patrol car’s video recording system. The officer also admitted that the centerline was not visible on the video at the oncoming car’s location. The officer pulled the car over, believing the driver had committed a traffic infraction by driving left of center.
Garza was a passenger in the stopped vehicle. While the driver underwent testing to determine impairment, Garza waited in the car as a second officer stood nearby. That officer saw Garza reach into the center console, pull out a baggy of green leafy substance, and attempt to hide it in his waistband. Garza was later charged with felonious possession of marijuana in violation of K.S.A. 2008 Supp. 65-4162(a)(3), and misdemeanor possession of drug paraphernalia, in violation of K.S.A. 2008 Supp. 65-4l52(a)(2).
Garza filed a motion to suppress tire drug evidence, claiming it was found during an illegal traffic stop because there was no evidence to show it was unsafe for the car to leave its lane of travel. At a hearing on the motion, the State argued the driver violated K.S.A. 8-1514(a), the statute prohibiting driving left of center. That statute does not contain a safety element; it requires that all vehicles remain on the right half of the roadway unless one of four exceptions applies. The State argued the driver was in violation of the statute, malting the stop legal, because the testifying officer said he did not observe any applicable exceptions. But Garza argued the applicable law was K.S.A. 8-1522, which is the statute for failing to maintain a single lane. And it requires a showing that it was dangerous to switch lanes.
The district court granted Garza’s motion to suppress. It ruled K.S.A. 8-1514 was inapplicable under a belief that it applied only to unmarked roads, and that K.S.A. 8-1522 applied to roadways containing marked lanes. Under K.S.A. 8-1522 and caselaw, the district court said the State was required to show an element of dangerousness to prove a statutory violation. In other words, it needed to be dangerous for the car to drift into the other lape before the drift would be considered a traffic infraction. The district court found that although the car may have driven slightly left of center, there was no evidence to show it was unsafe to do so. The drug evidence was suppressed, and, following a short discussion on how to proceed, the district court dismissed the case. The State appealed.
The Court of Appeals reversed. It held the district court relied on the incorrect statute and the State did not need to show it was unsafe for Garza’s car to cross over the centerline. The panel also made a specific determination that there was substantial competent evidence in the record to support a finding that the car crossed the centerline dividing the lanes of traffic traveling in the opposite direction, which was a violation of K.S.A. 8-1514(a). State v. Garza, No. 102,953, 2010 WL 3853222 (Kan. App. 2010) (unpublished opinion). We granted Garza’s petition for review, which challenges the panel’s jurisdiction to hear the case and its substantive holding reversing the district court.
Jurisdiction
Before reaching the merits of Garza’s claim, we must first address his argument concerning appellate jurisdiction. Garza claims the Court of Appeals erred in holding that it had jurisdiction when tire State appealed from the district court’s dismissal order rather than taking an interlocutory appeal from the suppression order.
Subject to certain exceptions not relevant in this case, Kansas appellate courts generally have jurisdiction to entertain an appeal only if that appeal is taken in the manner prescribed by statute. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). Additionally, an appellate court only obtains jurisdiction over the ruling identified in the appeal. See State v. G.W.A., 258 Kan. 703, 705-06, 906 P.2d 657 (1995). The interpretation of statutes and the determination of jurisdiction involve questions of law over which this court has unlimited review. State v. Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2011).
In its notice of appeal, the State said it was appealing “all issues from . . . the Suppression Hearing on July 14, 2009.” In its subsequent docketing statement, the State relied upon K.S.A. 22-3602(b)(1), which permits appeals from a case dismissal. Garza argues the exclusive method of appealing the suppression order was by interlocutory appeal under K.S.A. 22-3603. The failure to do so, he contends, eliminated appellate court jurisdiction.
In denying Garza’s jurisdictional claim, the Court of Appeals recognized that a similar argument was raised and denied by this court in State v. Huff, 278 Kan. 214, 92 P.3d 604 (2004). In Huff, the district court granted the defendant’s motion to suppress and immediately dismissed the case sua sponte. In the State’s notice of appeal, it similarly appealed from the dismissal under K.S.A. 22-3602(b)(1) rather than from the suppression of evidence under K.S.A. 22-3603. 278 Kan. at 217. This court rejected Huffs argument that the State should have filed an interlocutory appeal under K.S.A. 22-3603. We found the suppression of evidence and the case’s dismissal to be “one and the same,” making the State’s ci tation of the statute authorizing an appeal from the dismissal sufficient. 278 Kan. at 218-19. The Huff court also held that the State’s indication in its notice of appeal that it was appealing the district court’s “ ‘decision’ ” was general enough to put the defendants on notice that the suppression issue would be addressed. 278 Kan. at 219.
The jurisdictional argument Garza raises is as unpersuasive now as it was in Huff. Garza’s case was dismissed in the same hearing the evidence was suppressed, similarly making the suppression and dismissal “one and the same.” Accordingly, an appeal from the dismissal was proper. Moreover, just as in Huff, the State’s notice of appeal here said it was appealing “all issues from . . . the Suppression Hearing on July 14, 2009.” The State’s initial notice of appeal was broad and general enough to have put Garza on notice it was appealing the suppression ruling. And unlike Garza’s assertion that the State initially gave no indication it would appeal, the State said at the conclusion of the hearing that it would like the video of the traffic stop to be made part of the record on appeal, and that it was requesting a transcript.
The Court of Appeals correctly held the State’s notice of appeal was appropriate, supporting its jurisdiction to decide the merits. Garza, 2010 WL 3853222, at *3. Thus, this court’s jurisdiction is proper under K.S.A. 22-3602(e) (review of Court of Appeals decision). We now turn to Garza’s claim concerning the suppression of evidence.
Suppression of Evidence
Garza argues the district court properly suppressed the evidence in his case because the officer lacked reasonable suspicion to stop the vehicle in which he was a passenger. He urges this court to overturn the Court of Appeals’ decision reversing the suppression order.
Standard of Review
An appellate court reviews a district court’s decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court’s findings of fact are reviewed to de termine whether they are supported by substantial competent evidence. A de novo standard of review is then used to review the ultimate legal conclusion regarding the suppression of evidence. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see Huff, 278 Kan. at 219.
Garza urges this court to employ a more lenient negative finding standard based upon the district court’s determination that the State failed to meet its burden of proving the traffic stop was lawful. Garza relies on Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 1, 679 P.2d 181 (1984), to argue that this court must find the trial court displayed an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice.
But as noted by the Court of Appeals, Garza’s position is contradicted by this court’s decision in State v. Marx, 289 Kan. 657, 215 P.3d 601 (2009). In Marx, the defendants also asked this court to apply a more lenient negative finding standard of review since any ruling adverse to the party with the burden of proof is considered a negative finding. This court rejected the request, holding that “such a deferential standard should not be, and in practice has not been, actually applied to undermine the de novo, independent review of legal questions with which appellate courts are properly imbued.” Maivc, 289 Kan. at 661. We retain the same sentiment now as we did in Marx, and decline to adopt the negative finding standard Garza asks us to use.
This case also requires an interpretation of two traffic infraction statutes—K.S.A. 8-1514 and K.S.A. 8-1522. This court has unlimited review over questions of statutory interpretation. See Marx, 289 Kan. at 660.
Discussion
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Section 15 of the Kansas Constitution Bill of Rights provides identical protection from unlawful government searches and seizures. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). A seizure occurs when an officer has in some way restrained the liberty of a citizen by means of physical force or show of authority. State v. Greever, 286 Kan. 124, 135, 183 P.3d 788 (2008) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]). When a law enforcement officer stops a vehicle on a public roadway, a seizure has occurred. Marx, 289 Kan. at 661.
Under Terry, which is codified at K.S.A. 22-2402, a law enforcement officer may stop someone in a public place without making an arrest when the officer knows of specific and articulable facts creating a reasonable suspicion that the person is committing, has committed, or is about to commit a crime. K.S.A. 22-2402(1); Marx, 289 Kan. at 661. The State can often establish that its interests outweigh the intrusion on individual rights by showing the officer s pre-stop observations of a traffic infraction, because a traffic infraction provides an “ ‘ “objectively valid reason to effectuate a traffic stop, even if the stop is pretextual.” ’ ” Marx, 289 Kan. at 662 (citing State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 [2007]).
Garza’s argument asks us to consider whether the officer s stop was based on reasonable suspicion that the driver committed a traffic infraction. But a wider issue must be addressed concerning which statute the district court should have applied to the facts of the case: K.S.A. 8-1514 as argued by the State, or K.S.A. 8-1522 as argued by Garza. At the suppression hearing, the district court considered these two competing statutes before ultimately applying K.S.A. 8-1522 as advocated by Garza.
It was an undisputed fact at the hearing that the stop occurred on a two-way city street marked by a yellow line in the center. Based on this scenario, the State argued the driver drove left of center, triggering application of K.S.A. 8-1514(a). That statute provides: “Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway.” It states four exceptions to this rule: (1) when overtaking and passing another vehicle proceeding in the same direction; (2) when an obstruction exists making it necessaiy to drive left of center on the highway; (3) upon a roadway divided into three marked traffic lanes; and (4) upon a roadway restricted to one-way traffic. K.S.A. 8-1514(a)(l), (2), (3), and (4). The State argued that because the officer saw the car drive left of center, and because no exceptions to the rule applied, the traffic stop was authorized.
In State v. Hopper, 260 Kan. 66, Syl. ¶ 2, 917 P.2d 872 (1976), this court held that driving left of center is an absolute liability offense and that K.S.A. 8-1514(a) “contains no intent element and requires that all vehicles be driven on the right half of the roadway, subject to four exceptions.” In that case, the defendant was stopped after drifting left of center, but he argued for an exception because the road conditions were icy. This court declined to recognize that exception. Hopper, 260 Kan. at 70-72. The posture of Hopper is similar to this case in that the State argued before the district court that no exceptions applied when Garza drove left of the centerline.
Without claiming entitlement to any exceptions, Garza argued an entirely different statute applied—K.S.A. 8-1522—though defense counsel said at the suppression hearing that K.S.A. 8-1522 “supplements” K.S.A. 8-1514 by discouraging unsafe lane changes. Curiously, rather than challenging the State’s assertion that K.S.A. 8-1514 applied, defense counsel initially said the ultimate question for the district court was a factual one: whether there was significant evidence the vehicle crossed the centerline. K.S.A. 8-1522 states in relevant part:
“Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply:
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
Garza relied on Kansas v. Ross, 37 Kan. App. 2d 126, 130, 149 P.3d 876, rev. denied 284 Kan. 950 (2007), which held that a traffic violation under K.S.A. 8-1522 requires the defendant’s vehicle must not only move from its lane of travel, but also do so when it is not safe. To further supplement his argument, Garza cited United States v. Maldonado, 614 F. Supp. 2d 1179, 1181 (D. Kan. 2009), a federal case relying on Ross that held K.S.A. 8-1522 was not violated during a minor lane drift in which no safety concern was demonstrated.by the State. Relying on Maldonado, the district court agreed with Garza, considered the officer’s testimony under K.S.A. 8-1522, and held that the statute required the State to show the lane drift was accompanied by a dangerous situation, which the court found the State failed to do.
But the district court’s decision was erroneous for two reasons. First, the officer’s testimony more correctly fit within the parameters of K.S.A. 8-1514 in this case because it is specific to driving left of center. Second, the district court should have considered only the statute die State alleged Garza violated.
K.S.A. 8-1514 is specific to driving left of center. See Hopper, 260 Kan. at 70; State v. Chavez-Zbarra, 42 Kan. App. 2d 1074, 1077, 221 P.3d 606 (2009) (applying statute when driver crossed centerline on two-lane road; K.S.A. 8-1522 applies to roads with two lanes traveling same direction). Since die officer testified his reason for the stop was that he saw the car’s headlight in the officer’s lane on a two-way roadway marked with a double yellow line, and actually used the terminology “left of center,” the district court should have applied K.S.A. 8-1514. And contrary to the district court’s decision, nothing in K.S.A. 8-1514 suggests the statute applies only to unmarked roads. When a statute is plain and unambiguous, this court looks to its plain language. State v. King, 293 Kan. 1057, 1060, 274 P.3d 599 (2012). K.S.A. 8-1514 on its face does not malee any restriction for unmarked roads.
We also observe that while either statute could have applied depending on the evidence and circumstances, ultimately the district court should have narrowly considered the evidence in light of the only statute the State claimed was violated—K.S.A. 8-1514(a). After all, it is the State’s function to allege that a crime has been committed. See K.S.A. 22-2104 (all prosecutions are brought in the name of the State); K.S.A. 22-2301(1) (prosecution begins by filing complaint.) And in this case, the State alleged the officer’s actions were proper under K.S.A. 8-1514, so the district court should have considered the evidence under that statute alone. The district court’s failure to apply the officer’s testimony to the violation alleged by the State requires reversal and a remand for further proceedings.
That does not end our inquiry, however, because the Court of Appeals went further by engaging in appellate fact finding to hold that substantial evidence existed in the record to find a valid traffic stop occurred under K.S.A. 8-1514(a). This determination was based upon the testifying officer s description of events before stopping the vehicle in which Garza was a passenger: “I observed the vehicle’s headlights cross over the—into my lane, and then cross back into the other lane, and make a right-hand turn.” (Emphasis added.) The Court of Appeals observed, “Although the district court’s findings are equivocal, it appears the district court did find that, however slightly, the car drove left of center.” Garza, 2010 WL 3853222, at ⅜6.
But what the district court actually said is different. It held: “In looking at the video it is my opinion that there was a left of center, although it was slight. I could not see any way to gauge the degree to which the car did cross the center line. It may even just barely [have] touched it, I don’t know.” (Emphasis added.) Such unclear findings cannot serve as a basis for making the determinations required of the legal issues presented. The Court of Appeals made its own factual findings when it held the officer had a reasonable suspicion under the statute to justify the traffic stop. This is contrary to the function of an appellate court, which does not serve as a finder of fact. See Huff, 278 Kan. at 219 (appellate court analyzing motion to suppress order does not reweigh evidence).
It was error for the Court of Appeals to uphold the traffic stop after determining the trial court applied the wrong statute. We reverse that aspect of the Court of Appeals’ decision. We remand the case to die district court for additional findings based on application of K.S.A. 8-1514(a), which is the only statute alleged by the State to have been violated, to determine whether Garza’s motion to suppress should be sustained.
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The opinion of the court was delivered by
Moritz, J.:
Wesley Warren appeals his conviction for aggravated indecent liberties, challenging the sufficiency of the evidence of his conviction on several grounds. Because we conclude the State failed to present any evidence, much less sufficient evidence, that Warren “submitted to lewd fondling or touching” as specified in the jury instruction, we reverse his conviction.
Factual and Procedural Background
On November 17, 2008, Elizabeth Hamre, an employee with the Kansas Department of Social and Rehabilitation Services (SRS), informed Liberal Police Department Detective Christopher Head that SRS had received an anonymous complaint that four-year-old E.W. had seen Warren’s penis. According to Hamre, Warren also told E.W. that “her vagina was sexy.” Following an investigation, the State charged Warren with aggravated indecent liberties with a child.
At trial, E.W. did not testily as she was disqualified as a witness under K.S.A. 60-417.
Detective Head testified he interviewed Warren on December 31, 2008. In the interview, Warren denied that any incident occurred between E.W. and him. Head asked Warren if E.W. may have accidentally seen his penis, and Warren responded that “his penis had accidentally fallen out of a pair of pajama pants while [E.W.] was in his bedroom and she had actually seen his penis.” But Warren denied telling E.W. her vagina was sexy and denied intentionally showing E.W. his penis.
Kansas Bureau of Investigation (KBI) Special Agent Roger Butler testified he interviewed Warren on February 9, 2009. Warren initially told Butler that E.W. saw his penis when Warren wore pajama pants that were missing a button. According to Warren, his penis fell out of his pajamas when he stood up. Later in tire interview with Butler, Warren said his penis was exposed while he was lying in bed with E.W. playing a “waitressing game” and that E.W. pointed at his penis and said “pretty.” But even later in the interview, Warren acknowledged that he intentionally exposed his penis to E.W.
Detective Head watched a simulcast of the February 9, 2009, interview and conducted a follow-up interview with Warren on April 15, 2009. At trial, Head described the colloquy between him and Warren at the April 15, 2009, interview:
“A. [Head:] I informed him that he was asked to come back to the police department because he had told Mr. Butler that he had showed [E.W.] his penis on purpose.
“Q. [Prosecutor:] And what was the defendant’s response?
“A. [Head:] At that point I don’t think he said anything. I asked him why he had done that and told him that I couldn’t see any reason for someone to do something like that unless they were trying to turn themselves on or to turn on the child to become aroused.”
“Q. [Prosecutor:] But did he deny that when you made that statement to him?
“A. [Head:] No.
“Q. [Prosecutor:] Okay. And so your interview continued, and do you recall what you asked him next?
"A. [Head:] I asked—after I asked Mr. Warren if—or I told him that I couldn’t see any reason for someone to do such an act unless they were trying to become aroused or to arouse the child. I then asked him if he was trying to become sexually aroused, not to have sex with [E.W.], but to possibly have sex with his wife later on.
“Q. [Prosecutor:] And why did you offer that to him in that alternative?
“A. [Head:] Because it was obvious that he had done that to become aroused. I was wanting to find out what his intentions were, as far as whether he wanted to have sex with [E.W.] or if he was wanting to have sex with his wife.
“Q. [Prosecutor:] And what did the defendant tell you?
“A. [Head:] After I asked him if he was wanting to become aroused to have sex with his wife, he told me that was more of a probability.”
L.W., E.W.’s mother and Warren’s stepdaughter, testified over objection that she told her mother, M.L.W., that E.W. said she had seen Warren’s “peepee” and “that she had showed him her private area and he said it was pretty.”
Warren’s ex-wife, M.A.W., testified that between 1985 and 1989 Warren molested their daughter, A.W., and he eventually pleaded guilty to a charge of indecent liberties.
The jury found Warren guilty of aggravated indecent liberties, and the court imposed a life sentence with no possibility of parole for 25 years. Warren directly appeals his conviction to this court, raising numerous issues. However, because we find his challenge to the sufficiency of the evidence determinative, we consider only this issue.
Analysis
The evidence is insufficient to support Warrens conviction.
Warren raises two challenges to the sufficiency of the evidence to support his conviction—the first, an alternative means challenge, and the second, a traditional sufficiency challenge. Because his traditional challenge is outcome determinative, we will address only that issue.
Our standard of review when reviewing a sufficiency challenge is whether, after considering all of the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Warren was charged with and convicted of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3)(A). That statute provides in relevant part:
“(a) Aggravated indecent liberties with a child is: . . .
(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.”
Here, Warren argues that even viewing the evidence in a light most favorable to the prosecution, the State failed to present any evidence drat he fondled or touched either himself or E.W., as required to support the conviction. Instead, he contends the State proved, at most, that he exposed himself to E.W.
Notably, the State fails to respond to Warren’s sufficiency argument other than to suggest that the jury instructions were not clearly erroneous. But the State’s argument misses the point, as Warren challenges the sufficiency of die evidence to convict him, not the instructions given by the trial court. See, e.g., State v. McMannis, 12 Kan. App. 2d 464, 466, 747 P.2d 1343 (1987), rev. denied 242 Kan. 905 (1988).
We agree with Warren that the evidence is insufficient to support his conviction of aggravated indecent liberties because the State presented no evidence that Warren engaged in any lewd fondling or touching of E.W. or himself, done or submitted to with the intent to arouse or satisfy the sexual desires of E.W., Warren, or both.
As noted, E.W. did not testify at trial. And none of the law enforcement personnel who testified indicated that Warren fondled or touched anyone. In fact, the agents testified exactly the opposite—i.e., that Warren only exposed himself to E.W. Agent Butler testified on cross-examination:
“Q. [Defense counsel:] And you never asked Wesley [Warren] about any fondling or touching?
“A. [Butler:] I basically just addressed that as far as saying it didn’t go any further, and he acknowledged that it didn’t go any further.
“Q. [Defense counsel:] Did you feel at that point that he was being honest with you? I mean, is that why you didn’t press it, is what I’m asking?
“A. [Butler:] Yeah. What we had, the allegations being that there toas just an exposure, there had been, to my knowledge, no further allegation of any type of sexual contact or touching, so I didn’t pursue that any further.” (Emphasis added.)
Similarly, Detective Head testified:
“Q. [Defense counsel:] He admitted exposure to you?
“A. [Head:] Yes.
“Q. [Defense counsel:] Nothing more?
“A. [Head:] Um, no, not at that time.”
E.W.’s mother, L.W., also testified that according to E.W., no touching occurred.
While tire State failed to brief this issue on appeal, when Warren argued at the close of the evidence that the evidence was insufficient to establish a touching, the State responded that it had presented evidence that Warren “took” his penis out and that this action satisfied the touching element.
But a review of the record shows that both officers who testified used the terms “exposed” or “showed” to describe Warren’s actions, and no one testified that Warren touched his penis, took his penis out, or touched himself in order to remove his penis from his pajamas.
Moreover, even if the State had presented evidence that Warren touched himself in order to take his penis out of his pajamas, that touching would not have satisfied the elements of aggravated indecent liberties with a child. That statute clearly requires that the lewd fondling or touching be done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both. K.S.A. 21-3504(a)(3)(A).
Here, the State presented no evidence that Warren touched his penis in order to arouse or satisfy his or E.W.’s sexual desires. Rather, if anything, the evidence showed that Warren exposed his penis to arouse or satisfy the sexual desires of E.W. or himself, or both. As Warren points out, while touching his penis in order to expose it may have met the definition of lewd and lascivious behavior, it clearly was not sufficient to establish the charge of aggravated indecent liberties with a child. See K.S.A. 21-3508(a)(2) (“Lewd and lascivious behavior is . . . (2) publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of tire offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of tire offender or another." [Emphasis added.]).
Further, even if the State had proved an intentional touching under the aggravated indecent liberties statute, that evidence would nevertheless have been insufficient to prove that charge for a third reason—i.e., the evidence did not support tire elements of the charge as outlined in the jury instruction.
The trial court instructed the jury on aggravated indecent liberties as follows:
“To establish this charge [of aggravated indecent liberties with a child], the following claims must be proved:
1. That the defendant submitted to lewd fondling or touching of his person by removing his penis from Iris pajama, with intent to arouse or satisfy the sexual desires of either E.W. or the defendant, or bodi.
2. That at the time of tire act the defendant was over the age of 18; and
3. That at the time of the act E.W. was a child under tire age of 14; and
4. That this act occurred on or about tire 15th day of November, 2008, in Seward County, Kansas.”
The State presented no evidence that Warren “submitted to” any lewd fondling or touching, and it seems elementary that one cannot “submit to” one’s own actions. Merriam-Webster defines “submit” as “1(a): to bow to the will or authority of another: . . . (b) to allow oneself to become subjected.” Webster’s Third New International Dictionary 2277 (1993).
Finally, while not raised on appeal, for instructional purposes we note another apparent misapplication of the pattern instruction for aggravated indecent liberties. That instruction contains blanks that anticipate inclusion of the victim’s name or initials. See PIK Crim. 3d 57.06 (“That the defendant submitted to lewd fondling or touching of (his)(her) person by-, with intent....”). But here, instead of inserting the victim’s initials, the district court filled in the blank with the phrase “removing] his penis from his pajamas.” Thus, as the pattern instruction was given to the juiy, it improperly permitted the jury to find that Warren “submitted to” lewd fondling or touching of himself by taking his penis out of his pajamas.
Because the State failed to present evidence that Warren engaged in any lewd fondling or touching of E.W. or himself, done or submitted to with the intent to arouse or satisfy the sexual desires of E.W., Warren, or both, we reverse his conviction for aggravated indecent liberties with a child.
Reversed. | [
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The opinion of the court was delivered by
Biles, J.:
Karl Beaman directly appeals his convictions for rape under K.S.A. 21-3502(a)(2) and aggravated indecent liberties with a child under K.S.A. 21-3504(a)(l). He argues the district court erred by: (1) allowing him to improperly waive his right to a jury trial; (2) refusing to grant defense counsel a continuance to research Jessica’s Law sentencing issues; (3) denying his departure motion; (4) sentencing him to a life sentence with no parole for 25 years when another statute permits parole after 20 years; (5) imposing lifetime postrelease supervision; (6) imposing electronic monitoring; and (7) sentencing him to the aggravated sentence without having the aggravating factors submitted to a jury. We affirm Beaman’s convictions. We vacate that portion of his sentence imposing postrelease supervision for the rape conviction. We also remand to the district court for a nunc pro tunc order to correct a portion of the journal entry to delete reference to electronic monitoring, but we affirm the remainder of his sentence.
Factual and Procedural Background
Beaman was charged in a two-count complaint with rape and aggravated indecent liberties with a child. He admitted the criminal conduct but disputed the date of the rape because he claimed it occurred after the victim had turned 14. On the morning of jury trial, Beaman informed the court that against the advice of his attorney, he wanted to waive his right to a jury trial and proceed with a bench trial instead. The record reflects the following exchange:
“THE COURT: Mr. Beaman, your attorney has advised the Court that it is your desire to waive a jury for this trial; is that correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: He’s explained to you and he’s indicated to me that that’s against his advice, is that right?
“THE DEFENDANT: That is correct, sir.
“THE COURT: He’s indicated you and I’m sure that the defendant is almost always better off taking a case in front of a jury, is drat right?
“THE DEFENDANT: Yes, he has said that. That is correct.
“THE COURT: And the reason for drat is a lot of us [judges] are old guys who have been around a long time and we’ve seen a lot of tirings. And after you hear a lot of cases, you get to be land of maybe even a little bit prosecution oriented.
“THE DEFENDANT: Well, he didn’t explain that to me, but I do understand that. I do understand that.
“THE COURT: And that he was adamant, I’m sure, that you would be better off taking this case to a juiy?
“THE DEFENDANT: He did say that also, sir.
“THE COURT: All right. Can you tell me why you’re likely or why you’re inclined to ignore that advice?”
Beaman’s reply was lengthy and reflective about what his experiences had been since his arrest and included that he understood he was responsible for his actions even if he believed at the time that the victim consented to the sexual act. Beaman told the court that because he admitted everything, there was no sense in taking the victim or her family through a jury trial. He also told the court, “You’ve been on the bench long enough to be able to make the decision, so, you know, I put it in your hands because I’m not trying to hide from what I did.” The court soon replied:
“THE COURT: It sounds to me that you understand what you’re doing, and that you’re doing that because you don’t want to go through the jury process, don’t want to put the victim through the jury process.
“THE DEFENDANT: Or the family or anything.
“THE COURT: You understand they’re still going to have to testily, they’ll just be testifying to me rather than a jury?
“THE DEFENDANT: Uh-huh.”
The State agreed to waive the jury trial, and the court accepted Beaman’s waiver. After a bench trial, the district court convicted Beaman of rape and aggravated indecent liberties with a child.
Beaman filed a motion for new trial as to the rape count only, claiming the State failed to prove beyond a reasonable doubt that the victim was under the age of 14 at the time the crime occurred. A few weeks later, Beaman filed a departure motion, asking the district court to grant him a dispositional or downward departure on sentencing because, among other reasons, he waived his right to a jury trial to “avoid trauma and embarrassment to the victim.”
That same day, Beaman filed a motion to continue sentencing, claiming the State would need more time to respond to his departure motion and that his defense counsel wished to do additional research on departure and sentencing issues. The continuance motion did not specify what the additional research entailed, nor did it explain why counsel was unable to complete the research or determine whether the additional motion had merit during the time since Beamans conviction.
The court denied the motion for new trial, stating it had found beyond a reasonable doubt that the rape occurred when the victim was still 13. It also denied the motions for continuance and departure. Beaman was sentenced to life with a mandatory minimum of 25 years in prison and lifetime postrelease supervision for the rape conviction. Beaman was also sentenced to a concurrent 61 months in prison for the aggravated indecent liberties conviction and lifetime postrelease supervision. The sentencing journal entry indicates Beaman was sentenced to lifetime electronic monitoring and lifetime registration.
Beaman filed a timely notice of appeal. Our jurisdiction is proper under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
Jury Trial Waiver
Beaman argues he did not knowingly and voluntarily waive his jury trial right because the district court failed to fully inform him of what that right entailed. Before considering the merits of Beaman’s jury waiver claim, there is a threshold question concerning issue preservation.
Issue Preservation
Beaman concedes he did not challenge the jury trial waiver in district court and acknowledges that generally issues not raised below are not preserved for appeal. But he claims an exception applies because consideration of his argument and the potential error is necessary to prevent the denial of his fundamental right to a jury trial. See State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012) (reciting the general rule and the three recognized exceptions including when consideration is necessary to serve the ends of justice and prevent denial of fundamental rights).
The State claims there is an inconsistency among Kansas appellate courts concerning whether this issue may be raised for the first time on appeal. The State argues this court may have established a bright-line rule that a jury trial waiver issue cannot be raised for the first time on appeal in State v. Luna, 271 Kan. 573, 577, 24 P.3d 125 (2001). In contrast, the State notes the Court of Appeals subsequently reviewed a waiver issue after concluding it involved a fundamental right in State v. Bowers, 42 Kan. App. 2d 739, 216 P.3d 715 (2009). Bowers did not cite or otherwise acknowledge Luna.
This court recently addressed whether our Luna decision created a bright-line rule regarding preservation of jury waiver issues in State v. Frye, 294 Kan. 364, 370, 277 P.3d 1091 (2012). In Frye, we noted that Luna continued to acknowledge there are exceptions to the general preservation rule, emphasizing that the preservation requirement is prudential rather than jurisdictional. We held that Luna was not intended to make a bright-line rule that jury trial waiver questions could never be heard on appeal. Frye, 294 Kan. at 370. Implementing that premise, the court noted several issues arose in Frye warranting review of the defendant’s handwritten jury trial waiver, including the district court’s failure to ascertain the waiver’s validity. Based on those issues, we held the Court of Appeals did not err in finding an exception to the preservation rule in order to hear the issue on appeal. Frye, 294 Kan. at 371.
In keeping with Frye, we must determine whether Beaman should be permitted to raise the jury trial waiver issue for the first time on appeal. Beaman claims this issue merits review because the record reflects he was confused during his discussion with the district court about his waiver, which implicated the court’s affirmative duty to ensure that Beaman fully understood his right to a jury trial. This claim is analogous to another preservation issue that we reviewed in State v. Foster, 290 Kan. 696, 233 P.3d 265 (2010).
In Foster, we considered for the first time on appeal an issue concerning whether the district court should have sua sponte reconsidered the defendant’s competency to stand trial. The defendant argued on appeal that two alleged incidents of confusion at trial should have signaled that competency was again an issue. We agreed to consider the claim because it raised due process concerns and questioned the district court’s compliance with a statutoiy obligation found in K.S.A. 22-3302(1). Foster, 290 Kan. at 702. Similarly, Beaman asserts the record reflects confusion during his discussion with the district court about his jury trial waiver. And while we ultimately disagree with his arguments, we hold that it is appropriate to consider this issue even though it is raised for the first time on appeal. See Foster, 290 Kan. 702.
Standard of Review
Whether a defendant waived the right to a jury trial is a factual question, subject to analysis under a substantial competent evidence standard of review. But when the facts of the district court’s determination to accept a jury trial waiver are not disputed, the question whether the defendant voluntarily and knowingly waived tire jury trial right is a legal inquiry subject to unlimited appellate review. State v. Barnes, 293 Kan. 240, 260, 262 P.3d 297 (2011). The parties do not dispute the pertinent facts related to the jury trial waiver.
Discussion
A criminal defendant may waive the fundamental right to a jury trial if the court and State agree to the waiver. K.S.A. 22-3403 (defendant can submit felony case to court instead of jury with consent); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). But we have said these waivers should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury. Irving, 216 Kan. at 589.
The test for determining the waiver’s validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing. Whether that test is satisfied depends upon tire particular facts and circumstances in each case. Irving, 216 Kan. at 589; see also State v. Clemons, 273 Kan. 328, 340, 45 P.3d 384 (2002) (determination of knowing and voluntary jury trial waiver must be based upon facts arid circumstances in each case); State v. Fisher, 257 Kan. 65, 73-74, 891 P.2d 1065 (1995) (no error in waiver because defendant spoke with counsel prior to decision, was informed of constitutional right to jury trial and effect of a bench trial, and showed desire to have bench trial). A waiver will not be presumed from a silent record. Irving, 216 Kan. at 589.
Irving cites the American Bar Association’s (ABA) standards for accepting a jury trial waiver, which it adhered to as the accepted procedure in Kansas. 216 Kan. at 589-90. Those standards are the same today. See American Bar Association Standards for Criminal Justice, Trial by Jury, Section 1.2(b). Fashioned from the ABA’s recommendation, the Irving court stated: “[F]or a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590.
Beaman does not dispute that he waived his right in open court. He argues that the district court assumed he fully understood his right to a jury without actually explaining that right to him and notes the court did not explain that a 12-person jury would need to unanimously agree on guilt. But Beaman acknowledges that he admitted committing the acts alleged and gave thoughtful answers on why he wanted to waive his rights. He also indicated he had discussed his decision with his attorney prior to advising the court of his decision and understood that decision was against legal advice.
The record reflects that the district court did not articulate all the attendant particulars surrounding the right to a juxy trial. But the district court fervently encouraged Beaman to proceed with the jury trial, plainly indicating which alternative was in his best interest. The district court also corrected Beaman s stated reason for wanting a bench trial by telling him that the victim and her family would still testify before the court. To the extent Beaman asserts there was some confusion about this, the district court picked up on it and corrected it. And Beaman afcknowledged that he understood this, repeatedly stating that he wanted a bench trial.
To these facts, we would add that the sentencing hearing transcript from proceedings conducted 2 months later reflects Beaman’s continued understanding that he knowingly waived his jury trial right as he argued for a departure sentence, in part, because of that waiver. Beaman stated to the sentencing judge, “I told you my reasons why I didn’t want to have a jury court.” Similarly, Beaman’s attorney argued for the departure citing the juiy trial waiver and tire perceived benefit thát waiver had on the victim and her family.
Nonetheless, there remains a distinction between this case and some others in which this court has upheld a trial waiver, because Beaman was not explicitly advised by the court that he had a “right” to a jury trial. The record reflects the dialogue began with the district court affirmatively inquiring of Beaman about his counsel’s representation that Beaman wanted to waive the jury trial. And while the district court did not actually say the words “right to a juiy trial” in its inquiry of Beaman, it did use the phrase “your desire to waive a jury for this trial” at the outset.
This court addressed the purpose of a district court’s telling a defendant of his or her right to a jury trial in Frye:
“If the district court fails to properly advise a defendant of tire nature and extent of his or her constitutional right to a jury trial, how does that defendant know to object to the court’s failure to inform, i.e., how does the defendant know what the defendant does not know? Granted, defense counsel should know, but the ability to waive the fundamental right to a trial by jury rests solely with the defendant and Irving informs us that the responsibility to inform a defendant of his or her jury trial right rests squarely with tire presiding judge.” 294 Kan. at 370-71.
In Clemons, we accepted a jury trial waiver, even though the district court did not use the phrase “right to a jury trial” in accepting the waiver, and held it was sufficient that defendant’s counsel had talked to the defendant about this right. We held further that the determination as to whether tire jury trial right was waived cannot be “made in a vacuum but must be based upon the facts and circumstances of each case.” 273 Kan. at 340. This emphasizes that the determination in such cases must look beyond mere form in order to ensure a knowing and voluntary waiver.
Without question, it would have been a better practice for the district court to have expressly told Beaman on the record that he had a right to trial by jury before engaging in the verbal exchange that was clearly intended by the court to ensure Beaman’s waiver was knowing and voluntary. And although there may be an element missing in what might amount to a preferred “checklist” for accepting a waiver in this case, the underlying purpose of that missing element, as articulated in Frye, is that the court satisfy itself that defendant knows what rights he or she has and what he or she is giving up.
That purpose was fulfilled in Beaman’s case by the district court’s use of die word “waiver,” telling Beaman he would be better off with a jury, and the thoughtful exchange between the court and the defendant demonstrated in the record. This conclusion is reinforced by the sentencing hearing transcript months later in which it is reiterated that Beaman intentionally waived his jury trial right prior to trial and attempted to gain a benefit from it by arguing the waiver should be taken into favorable consideration in granting Beaman a reduced sentence.
We emphasize further that just the form of a waiver alone cannot be an appellate court’s determinant. Full consideration of the facts and circumstances surrounding a defendant’s waiver of his or her jury trial right is necessary in deciding whether a knowing and voluntary waiver occurred in any given case. In other words, the form of tiie process is not a substitute for the court’s careful scrutiny of the facts and circumstances, which give important context to the process. See Patton v. United States, 281 U.S. 276, 312-13, 50 S. Ct. 253, 74 L. Ed. 854 (1930) (duty of the trial court is not to be discharged “as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity”).
Based on the facts and circumstances in this particular case, we hold that Beaman’s jury trial waiver was knowing and voluntary. The district court began its dialogue with Beaman by asking if it was his “desire to waive a jury for this trial.” (Emphasis added.) The district court communicated that Beaman had a right he would be relinquishing, and the dialogue between them confirmed that the judge and defendant were talking about the same thing, i.e., Beaman’s right and the abandonment of that right. Beaman responded during this discussion by acknowledging his explicit preference for a bench trial by twice saying, “I put it in your hands.” The remaining interchange between the judge and Beaman shows that Beaman was not under duress and confirms he understood it was most likely in his best interest to have a jury instead of a bench trial.
Finally, Beaman argues the district court was required to inform him that 12 jurors would have to unanimously convict him. But our court has never required this to effectuate a valid waiver. Irving, 216 Kan. at 590 (“[F]or a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.”)- On the contrary, we have held a waiver knowingly and voluntarily made even when the district court did not inform the defendant of his right to a unanimous verdict. See Clemons, 273 Kan. at 340-41.
In Beaman’s case, the district court affirmatively engaged Beaman in a discussion about the possible consequences of his jury trial waiver, including pointedly advising Beaman that “you would be better off taking this case to a jury.” We hold that the record demonstrates Beaman’s jury trial waiver was made knowingly and voluntarily.
Denial of Requested Continuance
Beaman argues next that the district court erred in denying his request for a sentencing hearing continuance to research Jessica’s Law issues and possibly raise a cruel and unusual punishment argument under the Eighth Amendment to the United States Constitution or Section 9 of the Kansas Constitution Bill of Rights.
Standard of Review
The parties dispute the standard of review. The State claims the district court may grant a continuance for good cause shown and drat its decision is reviewed for an abuse of discretion, citing State v. Stevens, 285 Kan. 307, 322-23, 172 P.3d 570 (2007). Beaman claims the issue involves statutory interpretation of the good-cause statute, K.S.A. 22-3401, triggering unlimited appellate review. Beaman cites State v. White, 279 Kan. 326, 331-32,109 P.3d 1199 (2005). The State is correct.
The Stevens case directly addresses a defendant’s request for continuance. Stevens, 285 Kan. at 322-23 (citing State v. Cook, 281 Kan. 961, 986, 135 P.3d 1147 [2006]) (“In a criminal case, the decision to continue a case lies within the sound discretion of the district court.”); see also State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007) (“ ‘K.S.A. 22-3401 provides a district court may grant a continuance “for good cause shown,” and its refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion/ ”). We consider this issue based on an abuse of discretion standard.
Discussion
Just before the sentencing hearing began, which was nearly 2 months after Beaman’s conviction, Beaman filed a motion to continue sentencing with two stated justifications in support. First, he claimed the State needed time to consider his recently filed departure motion. Second, Beaman’s attorney was still researching an additional issue pertaining to sentencing, which he said “may” result in another motion. The State responded that it did not need additional time for the departure issue. It also opposed continuance for the additional research time because the defense had 2 months to file any other motions and had not explained why the research could not have been completed during the time given and because the victim’s family was in the courtroom ready for closure.
When confronted with the district court’s confusion on what else Beaman might want to file, defense counsel responded that he had found a case in which the defendant contested the Jessica’s Law statute as being unconstitutional for first-time offenders as cruel or unusual punishment. Counsel said any additional motion would “just be on the proportionality of it. . . other sentencing cases that have been decided based on proportionality issues that the Supreme Court has issued in the past.”
The district court responded that the cruel and unusual punishment argument could be raised on appeal, saying to defense counsel, “I don’t really think that’s a reason to delay this sentencing. As I say, it’s an issue that is going to be raised in every Jessica’s Law case until the Supreme Court decides it. But I don’t see it as a basis to continue the sentencing in this matter.” The court immediately asked whether Beaman had had an opportunity to review die criminal history report. Beaman’s counsel confirmed that he had reviewed the report and concurred with its contents. Then, the court proceeded with the sentencing hearing.
To support his argument that the district court erred, Beaman cites State v. Ortega-Cadelan, 287 Kan. 157, 194 P.3d 1195 (2008), and State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), which both held drat issues concerning challenges to Jessica’s Law sentencing as cruel and unusual punishment would not be considered on appeal if not first raised in the district court. Beaman argues the district court abused its discretion by basing its ruling on an error of law. But the threshold question does not focus on Jessica’s Law or the merits of what Beaman might have said; it is whether die district court abused its discretion by denying Beaman’s request to further study this issue.
A district court may grant a continuance for good cause shown. K.S.A. 22-3401. From the record before us, Beaman did not demonstrate good cause as to why he could not research the applicable caselaw on the cruel and unusual punishment issue within the 60 days prior to sentencing. And neither in his brief nor during oral arguments did he explain why he was unable at the time of sentencing to make the cruel and unusual punishment argument. We note that Ortega-Cadelan predates Beaman’s trial and sentencing, so counsel easily could have identified the issue before the sentencing hearing. In fact, Ortega-Cadelan lays out the three-pronged test for an analysis of a cruel or unusual punishment claim. 287 Kan. at 161. The case also cites the reader to State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), which remains this court’s touchstone for such issues. Ortega-Cadelan, 287 Kan. at 161.
Finally, simply arguing that there “may” be an issue worthy of another motion is insufficient to justify a continuance. Mere speculation that with more time something favorable may happen for the defendant does not constitute good cause. State v. Zimmer, 198 Kan. 479, 486, 426 P.2d 267 (1967). We hold that the district court did not abuse its discretion in denying Beaman’s continuance motion.
Departure Motion Denial
Beaman next argues the district court erred in denying his mo tion for a departure sentence. In that motion, he claimed he should receive a lighter sentence because: (1) he had no prior criminal history; (2) he took responsibility for the crimes in this case during interviews with police and at bench trial; (3) he went to a bench trial specifically to spare the victim unnecessary embarrassment of testifying in front of a jury; (4) he was not a threat to the community; (5) tire off-grid offense in this case, had it occurred a week later, would only have been a severity level three felony; (6) he had shown remorse; (7) he was well-behaved while incarcerated during the pendency of the trial; and (8) he was willing to participate in any sex offender treatment programs the court might require.
Standard of Review
Beaman incorrectly argues that our standard of review is unlimited, claiming that the court is interpreting the departure statute. It is well settled that appellate courts review the denial of a sentencing departure motion for an abuse of discretion. State v. Roberts, 293 Kan. 1093, 1097, 272 P.3d 24 (2012). Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take tire view adopted by the trial court; (2) based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. 293 Kan. at 1097; State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).
Discussion
Under the departure statute, a sentencing court “shall” impose a hard 25 sentence in Jessica’s Law cases “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21-4643(d). The statute provides a nonexclusive list of factors the court may consider when determining whether to grant a departure. K.S.A. 21-4643(d)(l)-(6). But even though there may be mitigating factors, a district court is not required to depart simply because a mitigating factor exists. State v. Baptist, 294 Kan. 728, 280 P.3d 210, 215-16 (2012).
In exercising its discretion under the statute, the district court first reviews the mitigating circumstances asserted and then weighs them against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure. The important question is whether those mitigating factors together create substantial and compelling reasons. 280 P.3d at 216. In a Jessica’s Law case such as this, Beaman needed to show substantial and compelling reasons in order to justify a more lenient sentence. See 280 P.3d at 215-16.
The State opposed Beaman’s departure motion, claiming he never took responsibility for his crimes because he continuously accused the victim of lying. It argued that sparing the victim from testifying at a jury trial was really just to help Beaman obtain leniency during sentencing. The State also claimed Beaman was still a danger to the community and did not show remorse.
The district court denied Beaman’s motion, indicating that even though Beaman did not have any criminal history, “this is exactly the land of behavior that the legislature intended to proscribe.” No more reason was provided, though the court was not required to provide one. See K.S.A. 21-4643(d); Baptist, 280 P.3d at 216 (district court not required to state reasons why departure motion denied; must only recite substantial and compelling reasons if departure granted).
On appeal, Beaman does not detail how each point in his motion justified departure. He considers them together and claims in one sentence that “[t]he mitigating circumstances cited for departure should have compelled the court to find there were substantial and compelling reasons to depart in this case.”
Although the district court should keep in mind that tire question is whether the mitigating factors together create substantial and compelling reasons, the Baptist court cited a number of cases negating most of Beaman’s departure motion points. See, e.g., State v. Plotner, 290 Kan. 774, 780-81, 235 P.3d 417 (2010) (no error in denying departure motion even though defendant claimed he took responsibility for his actions, purposefully pleaded guilty to save his victims from testifying at trial, and lacked prior sexually motivated convictions); State v. Trevino, 290 Kan. 317, 322-23, 227 P.3d 951 (2010) (no abuse of discretion even though defendant had little criminal history); State v. Robison, 290 Kan. 51, 55-57, 222 P.3d 500 (2010) (no error even though defendant had little criminal history, accepted responsibility, and demonstrated remorse); State v. Spotts, 288 Kan. 650, 655-56, 206 P.3d 510 (2009) (no error even though defendant lacked prior sexually motivated convictions, accepted responsibility, demonstrated remorse, and entered a no contest plea that saved the victim from testifying at trial); Ortega-Cadelan, 287 Kan. at 162-66 (no error when defendant admitted guilt, had little criminal history, and was deemed a good candidate for sex offender treatment).
The only mitigating factors raised by Beaman that are not directly addressed by these cases are: (1) that had the crime occurred a week later, it would not have been classified as an off-grid offense; and (2) that he was well-behaved while incarcerated awaiting trial. A reasonable person could agree with the district court that departure from die hard 25 sentence was unjustified based on these two factors. We hold that the district court did not abuse its discretion.
Illegal Sentence
Beaman argues the district court erred in sentencing him to life without parole for 25 years because another statute, K.S.A. 22-3717(b)(2), provides that he should be eligible for parole after serving 20 years. He claims the rule of lenity favors the defendant and that he should be resentenced according to die more favorable statute. Whether a sentence is illegal is an issue of statutory interpretation and is a question of law subject to unlimited review. State v. Cash, 293 Kan. 326, 327, 263 P.3d 786 (2011).
Beaman concedes he raises this issue for the first time on appeal but argues it is a pure question of law and an exception applies. The State does not challenge preservation of the issue, so it may be considered. See 293 Kan. at 327 (Considering merits of parole eligibility issue because “the State does not favor us with any argument on whedier the issue is preserved for appellate review.”).
Parole eligibility for Jessica’s Law cases is governed by K.S.A. 21-4643. The statute provides that for crimes of rape and aggra vated indecent liberties of victims under 14 years of age committed after July 1, 2006, tire defendant shall be sentenced to a mandatory minimum of 25 years in prison. But Beaman claims he is parole eligible under K.S.A. 22-3717(b)(2), which says in relevant part that a defendant sentenced for a crime committed after July 1999 shall be eligible for parole after 20 years of imprisonment.
Beaman was sentenced to a hard 25 year sentence on the rape conviction. He asks this court to apply the rule of lenity, which he gleans from this court’s decision in State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009). In Horn this court held that where legislative intent is lacking to resolve two conflicting statutory provisions, the rule of lenity resolves the conflict in favor of the defendant. Horn, 288 Kan. at 693. But a similar argument challenging parole eligibility has recently been raised and rejected by this court several times. See, e.g., State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012); State v. Baptist, 280 P.3d at 213-14; State v. Chavez, 292 Kan. 464, 468-69, 254 P.3d 539 (2011); Cash, 293 Kan. at 328-29; State v. Hyche, 293 Kan. 602, 603-04, 265 P.3d 1172 (2011).
Without attempting to distinguish his case, Beaman’s claim lacks merit and the district court did not err in sentencing him to a hard 25 years.
Postrelease Supervision
Beaman claims the district court erred in sentencing him to lifetime postrelease supervision instead of parole. The State concedes the district court should have imposed lifetime parole instead of lifetime postrelease supervision for the rape, but maintains Beaman was correctly sentenced to postrelease supervision for the aggravated indecent liberties conviction.
Under K.S.A. 22-3717(d)(l), defendants convicted of on-grid crimes may be ordered to postrelease supervision but are not eligible for parole. Beaman does not distinguish which sentence he challenges—the rape or aggravated indecent liberties. The State correctly points out that Beaman’s aggravated indecent liberties conviction should include postrelease supervision. This is because tire victim had turned 14 by the time the second crime happened, and Beaman was charged with a severity level 3 person felony— an on-grid crime. As for Beaman’s rape sentence that includes lifetime postrelease supervision, the conviction is off-grid, triggering application of K.S.A. 22-3717(b)(5). That statute authorizes parole eligibility exclusively after serving the mandatory term of imprisonment.
This court recently addressed postrelease supervision for an off-grid conviction of aggravated indecent liberties with a child. In Cash, the defendant was sentenced to a hard 25 year “indeterminate” life sentence, which the court found to mean that if the defendant were to ever be released from prison it would be because the release was granted by a parole board, not court-ordered post-release supervision. It found the court erred in imposing lifetime postrelease supervision and vacated that portion of his sentence. 293 Kan. at 330.
The same holds true in this case. The district court should have only sentenced Beaman to a life sentence with no parole for 25 years for the rape conviction, not lifetime postrelease supervision. Thus, this portion of his sentence should be vacated.. See Cash, 293 Kan. at 331.
Electronic Monitoring
Beaman next argues tire district court erred by imposing electronic monitoring as a parole condition because it is the parole board—not the district court— hat has exclusive authority to make the order. The State insists the district court never sentenced Beaman to electronic monitoring. This issue requires interpretation of the statute concerning electronic monitoring, K.S.A. 22-3717(u). Statutory interpretation raises a question of law over which this court has unlimited review. State v. Mason, 294 Kan. 675, 279 P.3d. 707, 709 (2012).
Electronic monitoring is required under K.S.A. 22-3717(u) for off-grid indeterminate life sentences. But as Beaman correctly argues, die sentencing court does not have authority to impose such parole conditions. Mason, 279 P.3d at 709. The more important question, as the State notes, is whether the district court actually sentenced Beaman to electronic monitoring. We hold that it did not, although the record is not entirely clear.
The sentencing journal entry reflects a handwritten check mark next to an option for the rape conviction that indicates electronic monitoring is part of the sentence imposed. The journal entry does not isolate the electronic monitoring as something that might happen—it appears as part of Beaman’s sentence.
But a criminal sentence is effective when it is imposed from the bench, not the sentencing journal entry. Mason, 279 P.3d at 709. At the sentencing hearing, the only mention of electronic monitoring was at the very end, when tire State said, “Judge, he needs to be informed that he will—if he gets out of prison, he’ll be required to register for life and he’ll be on an electronic monitor for life.” The court replied, “That is correct. And your post-release supervision will be for life.”
The State argues this exchange between the district court and Beaman simply reflects that the court was informing him about what lifetime postrelease supervision would entail and was not an order for electronic monitoring, which would have been in conflict with K.S.A. 22-3717(u). We accept this explanation, but that does not change the necessity for changing the subsequent journal entry.
As this court held in Mason, “[t]he sentence reflected in the journal entry is erroneous; however, there is no similar problem with the sentence pronounced from the bench.” Mason, 279 P.3d at 709. The same holds true here. We remand the case to the district court to issue a nunc pro tunc order under K.S.A. 22-3504(2) correcting the sentencing journal entry error so it reflects the actual sentence pronounced. See State v. Antrim, 294 Kan. 632, 279 P.3d 110 (2012).
Submitting Aggravating Factors to the Jury
Beaman’s final issue is familiar to this court. It concerns the district court’s decision to sentence him to the aggravated term without first submitting aggravating factors to a jury. He claims that violates Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But Beaman correctly notes this issue has been decided against him by this court. See Chavez, 292 Kan. at 470-71; State v. LaBelle, 290 Kan. 529, 539, 231 P.3d 1065 (2010); State v. Houston, 289 Kan. 252, 278, 213 P.3d 728 (2009); State v. Johnson, 286 Kan. 824, 851-52, 190 P.3d 207 (2008). We continue to reject this argument.
The defendant’s convictions are affirmed. We vacate the post-release supervision order for the rape conviction and remand to the district court to issue a nunc pro tunc order to correct the electronic monitoring portion of the sentencing journal entry. We affirm the remainder of his sentence. | [
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In a letter received by the Clerk of the Appellate Courts dated September 19,2012, respondent Thomas L. Thurston, 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 (2011 Kan. Ct. R. Annot. 371).
At the time the respondent surrendered his license, a panel hearing was pending in accordance with Supreme Court Rule 211 (2011 Kan. Ct. R. Annot. 334). The complaint alleged that respondent violated Kansas Rules of Professional Conduct 8.4(b) (2011 Kan. Ct. R. Annot. 618) and Supreme Court Rule 203(c)(1) (2011 Kan. Ct. R. Annot. 280) after he was convicted of one count of sexual exploitation of a child and failed to report his arrest and conviction to the Disciplinary Administrator.
This court, having examined the files of the office of the Disciplinary Administrator, finds the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Thomas L. Thurston 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 tire name of Thomas L. Thurston 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 (2011 Kan. Ct. R. Annot. 379).
Dated this 28th day of September 2012. | [
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The opinion of the court was delivered by
Luckert, J.:
This appeal in an eminent domain action raises questions of law regarding (1) the application of the assemblage doctrine as a theory of valuation, (2) whether a change of traffic patterns is a compensable taking, and (3) whether a court in an eminent domain action has subject matter jurisdiction over a claim that the government’s exercise of its police power to regulate traffic was unreasonable.
As to the first issue, the district court ruled the landowners could not present evidence related to the doctrine of assemblage, which is a theory of valuation that allows consideration of the condemned property as an integrated economic unit with an adjacent property. The district court refused to allow evidence under this doctrine because the two properties did not have a unity of ownership at the time of the takings and because the owner of the adjacent property had already been awarded separate, individual compensation for a similar partial taking. We conclude the district court erred because unity of ownership is not required when a landowner presents the assemblage of two parcels of property solely for the purpose of establishing the highest and best use of the property; rather, it must merely be established that there is a reasonable probability of joinder of the properties, which is a jury question. Nor does it matter that the adjacent property is also condemned. While the landowners of the condemned property in this case cannot seek damages related to the impact on the value of the adjacent property, the district court’s order did more than limit damages; it prohibited the landowners from presenting evidence regarding valuation based on use of their property as an integrated economic unit with an adjacent property, which should have been permitted. We, therefore, reverse the district court on this issue and remand the case so evidence related to the assemblage doctrine can be presented to a jury.
In the second issue, the landowners argue the district court erred in determining that a change in the traffic pattern for driving from their condemned property to a nearby highway was not compen-sable. We affirm the district court on this issue because the condemned property had the same direct access to the abutting roadway before and after the condemnation, and, although there was a change in the traffic pattern, that change is not a compensable loss under our prior caselaw. We, therefore, affirm the district court on this issue.
Finally, we conclude that neither this court nor the district court had subject matter jurisdiction in this eminent domain action to consider the reasonableness of the government’s exercise of its police power in regulating traffic flow. If the government’s action was unreasonable, it is void, not compensable. Yet, the Kansas Legislature has limited jurisdiction in an eminent domain action to the issue of appropriate compensation for a lawful taking, and neither the parties nor a court can expand the statutorily defined jurisdiction.
Facts and Procedural Background
In 2008, Debra L. Miller, in her capacity as the Secretary of Transportation for tire State of Kansas (KDOT), filed an eminent domain action seeking temporary and permanent easements on property, referred to as Tract 47, owned by Lawrence Preisser and Tracy Chambers (Landowners). After the appraisers appointed in the eminent domain action awarded the Landowners $120,000 as damages, KDOT appealed under K.S.A. 26-508 in the district court and requested a trial de novo on the damages issue. Before trial, KDOT filed two motions, seeking exclusion of evidence relating to two potential damage theories. The district court granted KDOT’s motions. Now, the Landowners appeal the award of damages to this court, arguing the district court erred in granting KDOT’s pretrial motions. This court has jurisdiction pursuant to K.S.A. 26-504 (direct appeal to Supreme Court of any final order under the Eminent Domain Procedure Act, K.S.A. 26-501 et seq.).
The exercise of eminent domain that resulted in this case was related to KDOT’s improvement of U.S. Highway 54/400 in Pratt County, Kansas (Highway Project). The Highway Project converted Highway 54/400 to a controlled access highway. To accomplish this, KDOT eliminated the direct connection of private driveways and some public roads to the highway and eliminated “at-grade intersections.” In place of those multiple intersections, at least in tire immediate area of the property at issue in this appeal, the only access to Highway 54/400 was through “grade-separated interchanges” that were generally located several miles apart. The stated purpose of converting this section of highway to a controlled access roadway was to eliminate “ ‘conflict points,’ i.e., points where turning movements intersect on-coming traffic.” This elim-inadon of conflict points was “intended to reduce accident rates and severity, and allow for the safe movement of increased traffic volumes at greater speed.”
Before the Highway Project, Tract 47 did not have direct access to Highway 54/400. Rather, Tract 47 had a driveway that connected to 130th Avenue. 130th Avenue then intersected with Highway 54/ 400 approximately .2 of a mile from Tract 47’s driveway. From there, a driver could travel either east or west on Highway 54/400.
After the Highway Project’s completion, Tract 47’s driveway still accessed 130th Avenue. But, 130th Avenue no longer intersects with Highway 54/400. Consequently, a driver leaving Tract 47 would have to take several roads, including a new connector road built in the Highway Project, to get to Highway 54/400. Depending on whether the driver wants to travel east or west on Highway 54/ 400, the driver has to drive either approximately 6.8 miles or 3.8 miles, instead of just .2 miles.
The Landowners refer to the new paths of access to U.S. Highway 54/400 as “tortuous and circuitous.” They argue the economic value of Tract 47 at its highest and best use as a farm headquarters is diminished because of the removal of easy access to Highway 54/400. The Landowners further argue this highest and best use required consideration of Tract 47 as an economic unit with an adjacent property that was condemned for easements, Tract 38.
Relationship of Tract 47 and Tract 38
Tract 47 is a 2.77-acre parcel of land that was notched out of the southeast corner of a piece of property that had been under single ownership until a few years before the eminent domain action. When combined, the two tracts were just slightly less than 80 acres; this combined property has been referred to in this case as the “Short 80.” The larger of the two tracts of property, which consisted of 75.5 acres, is Tract 38. At the time of the eminent domain action, Tract 38 was owned by Preisser individually, and the two tracts were used together to form Preisser Farms.
Preisser and his then-wife, Karen, purchased the Short 80 in 1978 as a single unit. Preisser asserts that the properties’ ease of access to Highway 54/400 was a factor in their purchasing decision. The northern border of the Short 80, which later became the northern border of Tract 38, ran parallel to Highway 54/400, and there were two access points from the property to the highway. The eastern boundary of the Short 80 and, later, the eastern boundary of both Tracts 38 and 47, paralleled 130th Avenue.
Over time, the Preissers improved the Short 80 with a single-family residence which doubled as the farm operations headquarters. They also built several outbuildings and made other improvements, including a large metal building for storage of farm machinery, a smaller metal building used for maintenance and repairs, a large storage tank for vehicle and equipment fuel, a large storage tank for anhydrous ammonia used in fertilizing crops, a large grain bin for storage of harvested crops before they are taken to the market, and an irrigation well and related irrigation system. Tract 47 contained the residence, two outbuildings, and tire large grain bin.
In 2000, the Preissers divorced, and as part of the divorce settlement, Tract 47 was carved out and set aside to Karen for her occupancy as a residence for a period of 3 years. Then, in 2003, Preisser and Chambers borrowed a sum of money to pay the amount owed to Karen as part of the property settlement in the divorce and secured possession of Tract 47. As part of the loan transaction, a deed was executed, transferring the title of Tract 47 to Preisser and Chambers. This was done to limit the extent of the mortgage lien to Tract 47, leaving the balance of the Short 80, Tract 38, unaffected by the lien. As a result of the divorce proceedings and the division of tire Short 80, at the time of the eminent domain action in 2008, the two tracts fell under different ownership. Preis-ser owned Tract 38 and Preisser and Chambers owned Tract 47. Up to the time of the eminent domain action, Tract 47 continued to serve as part of the farm operations and custom harvesting headquarters.
Eminent Domain Action
The eminent domain action included both tracts of the Short 80. KDOT obtained easements on Tract 38, the larger and northern tract, which closed the two direct access points to Highway 54/ 400. The court-appointed appraisers awarded Preisser $69,495 as compensation. Neither Preisser nor KDOT appealed this award.
In the eminent domain action related to Tract 47, appraisers awarded the Landowners $120,000. They calculated the fair mar ket value of the property before the taking at $240,000 and half that amount after the taking.
KDOT appealed this award. In the course of pursuing its challenge of the appraisers’ award, KDOT filed pretrial motions in which it sought to clarify that the only property at issue was Tract 47. KDOT sought a ruling striking any of the Landowners’ claims for compensation based on an assemblage theory where the Landowners would claim that the two tracts—Tract 47 and Tract 38— should be valued under the doctrine of assemblage as an economic unit. In a second motion, KDOT sought to strike any of the Landowners’ claims for compensation relating to loss of access to Highway 54/400 or regulation of traffic flow. The parties submitted affidavits, depositions, studies, and expert reports in support of their positions on these issues.
Ruling on the motions, the district court separated the second motion into two issues and ordered that the Landowners (1) were prohibited from presenting evidence pertaining to the valuation of Tract 47 as part of an economic unit under the assemblage doctrine, (2) were not entitled to compensation for loss of access, and (3) were not entitled to compensation for loss in market value due to the regulation of traffic flow because KDOT’s exercise of police power was reasonable.
According to the journal entry of judgment, in light of the district court’s rulings on KDOT’s pretrial motions, the parties agreed to forego trial and stipulated to just compensation in the amount of $11,500, contingent upon this court’s appellate review and affirmation of the district court’s ruling. Further, “[i]n the event the Kansas Supreme Court reverses or remands the case on any of the aforementioned issues, the parties stipulate this journal entry of judgment will be null and void and the parties will be entitled to a trial in accordance with K.S.A. 26-508.” Because KDOT had already paid compensation in the amount of $120,000, the district court ordered the Landowners to reimburse KDOT the difference, which was $108,500 plus interest ($116,679.86). After the Landowners filed a motion seeking a stay of execution pending the outcome of this appeal, the parties agreed on the amount and posting of a supersedeas bond.
On appeal, the Landowners raise two issues: (1) Did the district court err in denying the Landowners an opportunity to present evidence as to the most advantageous use of Tract 47, which was as an economic unit with Tract 38? and (2) Did the district court err in determining that the change in tire traffic pattern from Tract 47 to Highway 54/400 was not compensable? The Landowners present subissues related to the change of traffic pattern, one of which we separate for analysis. In this subissue, the Landowners argue KDOT’s exercise of police power was unreasonable. We conclude we do not have subject matter jurisdiction over this subissue.
Issue 1: Doctrine of Assemblage
The first issue on appeal relates to application of the “doctrine of assemblage.” See, e.g., Sakon v. Glastonbury, 111 Conn. App. 242, 249, 958 A.2d 801 (2008), cert. denied 290 Conn. 916 (2009); Clarmar v. Milwaukee Redevelopment, 129 Wis. 2d 81, 86, 383 N.W.2d 890 (1986). A leading authority explains the doctrine as follows:
“The doctrine of assemblage applies when the highest and best use of separate parcels involves their integrated use with lands of another. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable. If applicable, this doctrine allows a property owner to introduce evidence showing that the fair market value of the owner’s real estate is enhanced by its probable assemblage with other parcels.” 4 Nichols on Eminent Domain § 13.01[20], p. 13-36 (3d ed. 2003).
Citing this and other authorities, the Landowners argue that the district court abused its discretion in ruling that the Landowners could not use the doctrine because Tracts 38 and 47 did not share unity of ownership at tire time of the partial taking and because compensation had already been awarded to Preisser separately for Tract 38. The Landowners assert they proffered evidence showing that joinder of the parcels was reasonably practicable and, in fact, eventually accomplished.
Our review of this issue begins with the recognition that a district court generally has “broad discretion in determining what evidence will be allowed in an eminent domain proceeding.” U.S.D. No. 464 v. Porter, 234 Kan. 690, 694, 676 P.2d 84 (1984). As a general rule, “any competent evidence bearing upon market value generally is admissible including those factors that a hypothetical buyer and seller would consider in setting a purchase price for the property.” City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 (2000) (citing 5 Nichols on Eminent Domain § 18.05[1] [3d ed. 1997]).
Nevertheless, a district court’s exercise of discretion in admitting and excluding evidence is circumscribed by governing law. See State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010) (even under the deferential abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court’s discretionary decision is based). “This is no less true in the condemnation context than in any other litigation. [Citation omitted.]” Miller v. Glacier Development Co., 284 Kan. 476, 492, 161 P.3d 730 (2007), cert. denied 552 U.S. 1258 (2008) (Glacier I) (citing Mooney v. City of Overland Park, 283 Kan. 617, 619-20, 153 P.3d 1252 [2007]).
It is one of these limitations on the scope of admissible evidence that is at issue in this appeal because the ultimate question is whether evidence relating to the assemblage doctrine applied under the circumstances of this case. When, as here, a district court’s basis for the exclusion of evidence is a legal basis, a question of law is presented. Questions of law are subject to de novo appellate review. See In re M.F., 290 Kan. 142, 150, 225 P.3d 1177 (2010) (citing State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 [2008]); see also State v. Magallanez, 290 Kan. 906, 921, 235 P.3d 460 (2010) (when adequacy of the legal basis of district court’s decision on admission or exclusion of evidence is questioned, the decision is reviewed de novo); State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006) (adequacy of legal basis for judge’s admission of evidence reviewed de novo).
Therefore, we review de novo the question of whether the assemblage doctrine was an available legal theory for establishing the value of Tract 47. In doing so, it is helpful to understand how the theory fits into the issues in an eminent domain action.
When an appraisers’ award is appealed in an eminent domain action, “[t]he only issue to be determined therein shall be the com pensation required by K.S.A. 26-513.” K.S.A. 2011 Supp. 26-508. The compensation statute K.S.A. 26-513(a) first states the general principle that “[p]rivate property shall not be taken or damaged for public use without just compensation.” See City of Mission Hills v. Sexton, 284 Kan. 414, 422, 160 P.3d 812 (2007) (indicating the issue in an eminent domain action is the condemned property’s fair market value). K.S.A. 26-513(c) also addresses the standard for determining appropriate compensation when there has been a partial taking, such as occurred in this case, by stating:
“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.”
“Fair market value” is defined in K.S.A. 26-513(e) using the commonly understood definition: “the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property, in an open and competitive market, assuming that the parties are acting without undue compulsion.”
When the determination of fair market value is made in an eminent domain action, an owner of real property is entitled to have the highest and best use of the property considered. See Olson v. United States, 292 U.S. 246, 255, 54 S. Ct. 104, 78 L. Ed. 1236 (1934); see also Board of Johnson County Comm'rs v. Smith, 280 Kan. 588, 597, 123 P.3d 1271 (2005) (referencing “ ‘the most profitable use’ ” and “ ‘[t]he most advantageous use’ ”). Accordingly, K.S.A. 26-513(d)(l), which provides a “nonexclusive list” of factors that “shall be considered” to determine the amount of compensation and damage, lists as one factor the “most advantageous use to which the property is reasonably adaptable.” Additional factors indirect!y relate to the concept of highest and best use, including consideration of access, of productivity and convenience, and, more directly, that “the property could be or had been adapted to a use which was profitably carried on.” K.S.A.'26-513(d)(2), (4), (13). The “factors are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage.” K.S.A. 26-513(d). Because the list is nonexclusive, “any competent evidence bearing upon market value generally is admissible including those factors that a hypothetical buyer and seller would consider in setting a purchase price for the property.” City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 (2000) (citing 5 Nichols on Eminent Domain § 18.05[1]).
The Landowners argue that two interrelated statutoiy factors affected the total compensation due for the partial taking of Tract 47—the “most advantageous use to which the property is reasonably adaptable” and “the property could be or had been adapted to a use which was profitably carried on.” K.S.A. 26-513(d)(l), (13). Specifically, the Landowners argue that Tract 47’s integrated operation with Tract 38 was its most advantageous use. They point out that these two parcels had been used in conjunction with each other for more than 30 years and, thus, Tract 47 could be or had been adapted to a profitable use. The Landowners’ expert submitted an affidavit in which he opined the most advantageous use of Tract 47 was its historic use “as the headquarters of Preisser’s farming and custom cutting operation.”
District Court’s Findings
In excluding evidence pertaining to the assemblage doctrine, the district court made the following findings in its December 21, 2009, order:
“38. The Court finds that at the time of the taking, there was a difference in ownership of the two parcels comprising what has been referred to as the Short 80. The court further finds that the difference in ownership was attributable solely to the action of and for the purposes of [the Landowners],
“39. The Court concludes that [the Landowners] should not be permitted to malee a claim that the Short 80 was an economic unit and the most advantageous use to be made of the Subject Property is as part of that economic unit.
“40. The Court determines that [the Landowners] cannot at this stage of the proceedings, present evidence that the properties can be considered as an economic unit and the Subject Property valued accordingly. If the parcels were to be put back together in the same ownership, that reunification of title should have occurred before the initial condemnation or there should have been an appeal as to Tract 38, which there was not.” (Emphasis added.)
• Unity of Ownership
The first error, the Landowners argue, was the district court’s conclusion that the Landowners could not present evidence related to the assemblage doctrine because the two parcels—Tract 47 and Tract 38—did not share unity of ownership at the time the eminent domain action began. As tire Landowners correctly point out in their appellate brief, in Kansas and a majority of other jurisdictions, this fact alone does not prohibit the consideration of assemblage evidence.
Rather than requiring a current unity of ownership, most courts hold that assemblage is a proper consideration in determining fair market value in condemnation matters if the owner of the condemned property shows there is a reasonable probability the claimed assemblage can be accomplished in the reasonably near future. The burden of proof on this matter is on the owner. See United States v. Powelson, 319 U.S. 266, 273-74, 63 S. Ct. 1047, 87 L. Ed. 1390 (1943); Cain v. City of Topeka, 4 Kan. App. 2d 192, Syl. ¶ 1, 603 P.2d 1031 (1979), rev. denied 227 Kan. 927 (1980); 4 Nichols on Eminent Domain § 13.01[20], p. 13-36 (3d ed. 2003). Thus, when there is evidence supporting a reasonable probability that the properties can be joined, evidence of the use of the condemned property as an economic unit with other parcels presents a fact question for the jury to determine and can be admitted to show the condemned property’s highest and best use, regardless of whether the owner of the condemned property owns the other parcels. See, e.g., Cain, 4 Kan. App. 2d at 193-94; State v. Long, 344 So. 2d 754, 759-60 (Ala. 1977); City of Indianapolis v. Heeter, et al., 171 Ind. App. 119, 126-27, 355 N.E.2d 429 (1976); United Gas Pipe Line Co. v. Becnel, 417 So. 2d 1198, 1202-04 (La. App.), rev. denied 421 So. 2d 1124 (1982); County of Monmouth v. Hilton, 334 N.J. Super. 582, 590-92, 760 A.2d 786 (2000), rev. denied 167 N.J. 633 (2001).
The Landowners rely on Cain for support of their contention that the district court should have allowed them to present evidence of an economic unit for purposes of placing a value on Tract 47, despite the fact that Tracts 47 and 38 did not share unity of ownership at the time of the takings. In Cain, an eminent domain action was brought by the City of Topeka, and the Court of Appeals affirmed the district court’s admission of evidence offered by Cain, a landowner, supporting his contention that the highest and best use of his property on the date of the taking was its potential assemblage with adjacent tracts of land for use as a motel site. Cain testified that he had purchased the property with the intention of assembling the entire block for development. For Cain’s condemned property to have been used for such purpose, however, he would have had to acquire the adjacent tracts. Cain, 4 Kan. App. 2d at 193-94.
The City argued on appeal that the valuation evidence, premised on the joinder of the tracts, was speculative. The Court of Appeals disagreed, stating:
“Parties to an eminent domain proceeding are entitled to adopt their own theories as to the highest and best use of the condemned land. Humphries v. State Highway Commission, 201 Kan. 544, 549, 442 P.2d 475 (1968). The fact that the land has been used for one purpose only does not prevent showing its availability and value for other uses provided the other uses are so reasonably probable as to have an effect on the present market value of the land. Humphries v. State Highway Commission, 201 Kan. at 549-550; Regnier Builders, Inc. v. Linwood School District No. 1, 189 Kan. 360, 362, 369 P.2d 316 (1962). As stated in 4 Nichols on Eminent Domain, § 12.3142(2), pp. 12-389-390 (3d ed. 1978):
‘In order to merit consideration the potential uses must be so reasonably probable as to motivate a prospective purchaser in his desire to acquire the property. Purely imaginative or speculative values are excluded.’
“The rule stated in 4 Nichols on Eminent Domain, § 12-3142(1), p. 12-329 (3d ed. 1978), is:
“Where the highest and best use of separate parcels involves their integrated use with the lands of another, such prospective use maybe properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable.’
Other jurisdictions have recently reached similar conclusions. State v. Long, 334 So. 2d 754, 759-760 (Ala. 1977); Meakin v. Steveland, Inc., 68 Cal. App. 3d 490, 502, 137 Cal. Rptr. 359 (1977) [stating ‘where the adaptability for a use depends upon the land being used in combination with lands belonging to other persons, such unitary use may be shown if the possibility of such combination is so great as to have a definite effect in enhancing the market value of the property’]; City of Indianapolis, Dept. of Met. Dev. v. Heeter, [171 Ind. App. 119], 355 N.E.2d 429, 434 (1976) [’When the value of the land taken is enhanced by uses to which the condemned property might be adapted, the owner is entitled to the market value as so enhanced.’] We find the rule logical and adopt it.” Cain, 4 Kan. App. 2d at 193.
In finding no error in the admission of evidence, the Court of Appeals noted that Cain testified a “zoning change to facilitate and allow die desired development was a reasonable probability.” Cain, 4 Kan. App. 2d at 194. Cain’s testimony further indicated the area had been under threat of condemnation for a civic center, and this was a reason for not previously purchasing the adjoining tracts. In addition to Cain’s testimony, all appraisal witnesses, including the City’s, supported the use of the assemblage doctrine, testifying “in varying degrees that assemblage of the entire block for development would have to be considered to arrive at a conclusion as to highest and best use.” Cain, 4 Kan. App. 2d at 194.
KDOT attempts to distinguish Cain and argues that “the lack of any potential unity of title to Tract 38 and the Subject Property is fatal to the assemblage argument advanced by Preisser and Chambers.” This assertion is puzzling in light of the record. True, the ownership of Tract 47 was purposefully different from the ownership of Tract 38 at the time of the takings because of Preisser’s divorce settlement and his intent to “limit the extent of the mortgage lien” to impact only Tract 47, rather than the entire Short 80. However, as pointed out by the Landowners, although the two parcels had different owners when the eminent domain action began, before the district court ruled on KDOT’s motions, the Landowners proffered evidence indicating a reasonable probability that title to the parcels could be unified. Then, before the final order was entered by the district court, Preisser proffered evidence that he would testify that the parcels were unified after the commencement of the eminent domain action—at some point before the pretrial hearing, the title to Tract 38 was changed to include both Preisser and Chambers, the same owners of Tract 47.
As such, the Landowners established that there was a question of fact regarding whether the unity of ownership was reasonably probable. The Landowners should have been able to present this question of fact to a jury. See PIK Civ. 4th 131.05 (defining fair market value). Hence, the district court erred in relying on the lack of unity of ownership when ruling the Landowners could not present evidence that Tract 47’s highest and best use was as an assembled, integrated economic unit with Tract 38.
• The Adjoining Parcel Had Already Been Valued Separately
That leaves the question of whether the district court correctly ruled that the fact Preisser had been compensated for the damage to Tract 38 meant there would be a duplicative award that prevented the Landowners from being able to present this evidence.
In defending this ruling, KDOT argues that Cain is distinguishable because the Landowners, or at least Preisser as owner of one parcel and coowner of the other, seek compensation under two mutually exclusive approaches—valuation of separate parcels by accepting compensation for the separate valuation of damages to Tract 38 and valuation of assembled parcels by requesting that the valuation of damages to Tract 47 include its joint use with Tract 38. Essentially, KDOT asserts that permitting evidence of separate valuation on the one hand and evidence of assemblage on the other would result in a windfall to Preisser because he would receive duplicative compensation for damages to Tract 38. As will be explained below, taking two approaches to the valuation does not lead to duplicative results if a jury is properly instructed.
KDOT cites two Kansas cases—Hogue v. Kansas Power & Light Co., 212 Kan. 339, 510 P.2d 1308 (1973), and McIntyre v. Board of County Comm’rs of Doniphan County, 168 Kan. 115, 211 P.2d 59 (1949)—in support of its argument that unity of ownership was essential to avoid any recovery of duplicative damages, that is, compensation for the partial taking of Tract 38 and compensation for incidental damage to Tract 47 due to the partial taking of Tract 38. But both Hogue and McIntyre relate to severance damages, not highest and best use valuation. These are different concepts that must be separated in our analysis.
K.S.A. 26-513(d)(6) indicates “[sjeverance or division of a tract, whether the severance is initial or is in aggravation of a previous severance” is a factor, like the other nonexclusive factors in the statute, that “shall be considered if such factor [is] shown to exist.” K.S.A. 26-513(d). Severance damages are inherently included in partial takings in Kansas, such as cases involving the taking of easements, where “the compensation and measure of damages is the difference between the fair market value of the entire properly or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.” K.S.A. 26-513(c).
It is undisputed that the Landowners are entitled to severance damages to Tract 47 for the severance of the easement from the rest of the property. But KDOT’s focus is on whether the Landowners can claim damages to the adjoining tract because of the severance. Relying on Hogue and McIntyre, KDOT asserts evidence of the assembled economic unit was properly excluded.
In Hogue, a power line easement was taken across Don Hogue’s 410-acre tract. The court ruled Hogue was not entitled to compensation for severance damages caused to a smaller tract owned by Hogue and his wife, Fern, as joint tenants because the easement did not touch the smaller tract and there was not a unity of ownership. Hogue, 212 Kan. at 342-43. Similarly, in McIntyre, the court ruled T.W. McIntyre could not recover severance damages to his property because of the taking of part of an adjoining property that was owned by his wife, Ruby, because there was not a unity of ownership. McIntyre, 168 Kan. at 121. As KDOT asserts, these cases follow the general rule that in order to allow severance damages, where a portion of a parcel or parcels of land claimed as a single unit is taken by condemnation, “there must be unity of ownership between the part taken and the remaining part.” Hogue, 212 Kan. 339, Syl. ¶ 1; see McIntyre, 168 Kan. at 119 (tracts of land held by different titles, vested in different persons, cannot be considered as a whole in awarding severance damages, where it is claimed that one is incidentally injured by the taking of the other for public use).
Consequently, under these cases, the Landowners cannot malee a claim for damages to Tract 47 because of the closure of the two access points to Highway 54/400 that were located on Tract 38. Likewise, the Landowners cannot make a claim for damages to Tract 38 because of the easements KDOT obtained on Tract 47. See McIntyre, 168 Kan. at 120 (holding “one owner is not entitled to recover compensation for land taken from him because of alleged damage resulting to that portion of his land remaining on account of the taking of land belonging to another even though, as under the facts of this case, the two tracts had been farmed and operated as one unit”).
But the district court’s order did more than limit the Landowners’ recovery for those types of damages. The district court refused to allow the Landowners to establish that the highest and best use of Tract 47 is when it is assembled with Tract 38 as an economic unit and used as a farming operations headquarters. As other courts have recognized, the restriction on severance damages does not mean the integrated use evidence cannot be introduced for the purpose of valuation—establishing the highest and best use—even if the adjacent property is owned by a different person. One court explained:
“Although joinder is a consideration in valuating the condemned property and die damages to the remaining parcels, the possibility of joinder has no bearing on die propriety of awarding severance damages to the remaining parcels. [Citation omitted.] Thus, even where severance damages to a remaining parcel may not be appropriate, the possibility of joinder may still be a proper consideration in the valuation of the property taken. [Citation omitted.]” M & R Investment Co., Inc. v. State Dep't Transp., 103 Nev. 445, 451-52, 744 P.2d 531 (1987).
Evidence of the impact of a reasonably probable prospective use on the question of highest and best use is allowed because “it would be unjust to allow the Government to use ‘salami tactics’ to reduce the amount of one property owner’s compensation by first acquiring an adjoining piece of property or another interest in the same property from another owner.” Almota Farmers Elevator & Whse. Co. v. United States, 409 U.S. 470, 480, 93 S. Ct. 791, 35 L. Ed. 2d 1 (1973) (Powell and Douglas, JJ., concurring). Hence, the unavailability of an adjacent parcel due to its prior or separate condemnation “should not be dispositive of whether assemblage is reasonably probable.” 4 Nichols on Eminent Domain § 13.01[20], p. 13-37 (3d ed. 2002).
Consequently, the Landowners’ evidence is admissible to the extent allowed in Cain, where it was not argued that the owner of the subject property was entitled to compensation for damages caused to adjoining property; rather, it was argued that the value of the subject property was enhanced by its use in connection with adjoining property. The concern that this will result in duplicative compensation can be ameliorated through appropriate instructions to the appraisers, cross-examination of experts and other witnesses, and instructions to the jury. Specifically, the jury can be instructed that the compensation must be limited to the loss in fair market value of Tract 47 and that any diminution in value of Tract 38 is not a matter for its consideration. This concept is illustrated in the decision of Crist v. Iowa State Hgwy. Comm., 255 Iowa 615, 123 N.W.2d 424 (1963).
Crist involved the valuation of separate parcels in an eminent domain action. The state highway commission condemned Tract S, which was owned jointly by Owen and Ruth Crist. Immediately to the west of Tract S, but separated from it by an alley shown to be closed or impassable, were Tract P and Tract B, which were owned by Owen Crist individually and condemned by the state highway commission in separate proceedings. There was a building on Tract B and all three parcels were used by Owen in conducting an auto body service business-—Tract B was used in the rebuilding of wrecks and Tract P and Tract S were used for storage.
The appeal to the Iowa Supreme Court directly concerned only Tract S, and one issue pertained to whether the district court erred in permitting evidence of the value of Tract S as used in connection with Tract B and Tract P. The Crist court upheld the introduction of such evidence and rejected the contention that separate valuations were required because the ownership of the three tracts was not identical. The court distinguished this situation from the impermissible situation where the owner of one tract tries to claim damages based on the government’s acquisition of adjacent tracts of others, stating:
“No damages to tracts B and P, or either of them, were considered or allowed. All that was done was to permit the use of S in connection with B and P to be shown, as affecting the reasonable market value of S. The jury was told that no damages to B and P should be allowed.” Crist, 255 Iowa at 619.
The same rationale applies in this case. The fact that Tracts 38 and 47 were held under different ownership did not legally bar the Landowners from presenting evidence showing that the most advantageous use of the subject property, Tract 47, was its assemblage with Tract 38. Moreover, the fact that Tract 38 was separately condemned and its owner was previously compensated for damages should have had no bearing on the consideration of whether the use of Tract 47 in connection with Tract 38 enhanced the value of Tract 47. The damages to Tract 38 are not to be considered in the calculation of the fair market value of Tract 47, and, therefore, evidence of an assemblage will not produce a windfall to Preisser. As illustrated by Crist, the jury can be instructed so that duplicative damages are not awarded.
Consequently, we conclude the district court erred in its legal basis for excluding the valuation evidence and, thus, abused its discretion. Because the Landowners had a right to present evidence of the highest and best use of Tract 47 as an economic unit with Tract 38, we reverse the district court’s ruling and remand.
Issue 2: Damages for Loss of Highway Access
Next, the Landowners take issue with changes made by KDOT to their property’s access to and from Highway 54/400. Specifically, the Landowners argue (1) there was a compensable taking when they suffered loss of highway access and (2) there was a compen-sable taking when KDOT unreasonably altered the traffic flow to and from their property. The Landowners comingle two distinct issues—right of access and regulation of traffic flow. We will untangle those two issues, as did the district court.
Distinction Between “Right of Access” and “Regulation of Traffic Flow”
In several recent cases, this court has clarified that that there is a “significant distinction between 'right of access’ and ‘regulation of traffic flow.’ ” City of Wichita v. McDonald’s Corp., 266 Kan. 708, 718, 971 P.2d 1189 (1999).
The “ ‘right of access’ is traditionally defined as an abutting landowner’s common-law right of access from the landowner’s property to abutting public roads. Such a right is the right to reasonable, but not unlimited, access to existing and adjacent public roads.” McDonald’s Corp., 266 Kan. at 718 (citing Brock v. State Highway Commission, 195 Kan. 361, 370, 404 P.2d 934 [1965]); see Frick v. City of Salina, 290 Kan. 869, 880-81, 235 P.3d 1211 (2010) (same); Korytkowski v. City of Ottawa, 283 Kan. 122, 129, 152 P.3d 53 (2007) (same). “When the government actually blocks or takes away existing access to and from property, the landowner is generally entitled to compensation.” Frick, 290 Kan. at 880-81; see K.S.A. 26-513(d)(15) (provides for compensation under the Kansas Eminent Domain Procedure Act, K.S.A. 26-501 et seq. for damages for “loss of private roads or passageways and the cost of replacing them with private roads or passageways of like quality, to the extent that such loss affects the value of the property remaining”); McDonald’s Corp., 266 Kan. at 722 (“We hold, based on case law developed since the passage of K.S.A. 26-513, ‘access to the property remaining’ as used in K.S.A. 26-513[d][2] refers to a ‘right of access’ and not changes in traffic flow.”); Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 236-37, 559 P.2d 771 (1977) (upholding finding of damages for reduction in property value based on elimination of access point to abutting highway); McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, Syl. ¶ 4, 397, 524 P.2d 1165 (1974) (landowner compensated for diminution of value when one entrance to business from abutting highway was permanently closed).
“Regulation of traffic flow” or “circuitous route” as it is called by the Landowners is an entirely separate concept. An abutting owner has no right to the continuation of a flow of traffic from nearby highways to the owner’s property. “Regulation of traffic flow,” which has also been referred to as “restricted access,” is an exercise of the government’s police power that must have been reasonable. Korytkowski, 283 Kan. at 129; see McDonald’s Corp., 266 Kan. at 718-19; Eberth v. Carlson, 266 Kan. 726, 734-36, 971 P.2d 1182 (1999); Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, 335, 559 P.2d 347 (1977); Kohn Enterprises, 221 Kan. at 232; Ray v. State Highway Commission, 196 Kan. 13, 18-20, 410 P.2d 278, cert. denied 385 U.S. 820 (1966). In this situation, there is no taking and thus no compensable damages.
As we will discuss in more detail, the distinction is between direct access to abutting roadways, which creates a right of access that is compensable in an eminent domain action, and indirect access to a nearby roadway, which relates to a regulation of traffic flow that is not compensable in an eminent domain action. The district court recognized these distinctions in making the following findings about the Landowners’ “right of access” claim:
“41. The Court determines that Defendants’ private right of access does not encompass nearby connection points of abutting roads as claimed by Defendants.
“42. The Court determines that Plaintiffs motion as to loss of market value as a result of the change in access is controlled by the Kansas Supreme Court’s decision in the case of City of Wichita v. McDonald’s Corp.[, 266 Kan. 708.] It is not controlled by the case of Teachers Ins. Annuity Ass’n v. the City of Wichita[, 221 Kan. 325,] which is cited by Defendants in support of their opposition to Plaintiff s motion. This is not a direct access case, as the access to the Subject Property was from 130th Avenue in the before condition and will be from 130th Avenue in the after condition. Plaintiff s project has not changed Defendants’ direct access to 130th Avenue.”
Accordingly, in the district court’s journal entry of judgment, it reiterated that “[the Landowners] will not be permitted to claim loss of market value suffered by the Subject Property as a result of taking direct access to US Highway 54, as the Subject Property had no direct access to US Highway 54.”
On appeal, our review of the district court’s legal conclusion that there was no compensable taking is a question of law, over which this court exercises an unlimited standard of review. Eberth, 266 Kan. at 731; Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 772, 958 P.2d 656 (1998), superseded by statute on other grounds as stated in Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 215 P.3d 561 (2009).
The Landowners do not dispute that this is the applicable standard of review; they do not challenge the factual basis for the district court’s ruling—that Tract 47 never had direct access to Highway 54/400 and only had direct access to 130th Avenue. Nevertheless, the Landowners attempt to circumvent the “right of access” concept by arguing that the term encompasses not only access to an abutting road but any change in access to the entire “public road system.” The Landowners rely on Teachers Insurance, 221 Kan. 325; City of Shawnee v. Webb, 236 Kan. 504, 694 P.2d 896 (1985); and Kohn Enterprises, 221 Kan. 230.
In Teachers Insurance, landowners claimed to have been damaged both by loss of access and changes in traffic flow when the City of Wichita moved U.S. Highway 54 (Kellogg) altogether. Before the changes, the landowners directly abutted Kellogg and had direct access to it. When the highway move was completed, the abutting landowners lost direct access and were left with only a “tortuous and circuitous route” to Kellogg. Teachers Insurance, 221 Kan. at 328. Motorists had to travel between 1.34 to 2 additional miles to reach the landowner s property. The City stipulated that travel to and from the property was not practical, and the landowners were compensated. These facts are unlike the circumstances of this case because in Teachers Insurance the improvement project eliminated previous direct access, where, as we have discussed, in the present case the Landowners never had direct access to Highway 54/400 and Tract 47 did not abut Highway 54/ 400.
Likewise, in City of Shawnee, before the improvement project the subject property had several direct access points, including one to K-7 Highway and one to 71st Street near the intersection of K-7 Highway and 71st Street. The City contended that evidence of the closing of the K-7 Highway and 71st Street intersection should not have been admitted because the closing of that intersection was not explicitly mentioned in the appraisers’ report. In holding that the district court did not abuse its discretion by admitting this evidence, the City of Shawnee court observed that the property’s direct access point to K-7 Highway was taken by the City. And although the City did not take the landowners’ direct access to other roadways, the access from the southern part of the property to K-7 Highway was now only available by a circuitous route over county roads. Instead of access within ¼ mile, the landowners or those seeking entry to the property from 71st Street would have to drive some 3.5 miles to the north and east or some 9 miles to the south and east. As with Teachers Insurance, City of Shawnee does not lend credence to the Landowners’ “right of access” ar guments because the City of Shawnee landowners lost direct access to the highway.
The Landowners do find some support in Kohn Enterprises, which jumbled the concepts of “right of access” and “regulation of traffic flow.” There, the landowner operated a motel and restaurant which fronted and had direct access to a highway and a street. Because of changes to the intersection of the street and highway, the access points were moved. There was a loss of security because there was no longer a view from the motel office of persons entering die premises, and there was also a loss of privacy for motel facilities. Further, access from the highway was severely restricted. This court affirmed the court’s determination that a compensable taking had occurred. Kohn Enterprises, 221 Kan. at 236-37.
The support that Kohn Enterprises provides the Landowners dissipates in light of subsequent decisions in which this court clarified the distinction between “right of access” and “regulation of traffic flow.” In McDonald's Corp., this court acknowledged past inconsistencies in cases dealing with “right of access” and “regulation of traffic flow,” stating that “[a] review of our highway condemnation case law suggests that the term ‘access’ has been frequently misused by both litigants and courts.” McDonald's Corp., 266 Kan. at 718. The court then explained the “significant distinction” between the two concepts. See McDonald’s Corp., 266 Kan. at 718.
McDonald’s Corp. had originated as an eminent domain action involving highway expansion affecting multiple properties in Wichita. By the time the case reached this court, the property owner that remained in the litigation was Wal-Mart. One of Wal-Mart’s arguments was that it should have been entitled to compensation for loss of access. Both before and after the project, Wal-Mart’s property had a total of four entrances and exits. In other words, the City of Wichita did not permanently close any of the entrances or exits to the property, and Wal-Mart had the same access to the same streets it previously had. But Wichita had changed the direction and flow of traffic once traffic left Wal-Mart’s lot. This court clarified that Wal-Mart “misused the term ‘access’ in crafting its arguments” and concluded that no right of access had been taken. McDonald’s Corp., 266 Kan. at 720-21.
Since McDonald’s Corp., this court has consistently applied the same rationale on “right of access” claims. See Frick, 290 Kan. at 881-82 (landowners never had existing access from third lot of subject property to abutting public street that city improved as required in order for landowners to be entitled to compensation for alleged loss of access); Korytkowski, 283 Kan. 122, Syl. ¶ 6 (where landowners’ property was not physically taken and access to abutting roadway was not disturbed, the necessity of a more indirect route to and from landowners’ property did not constitute a taking under Kansas law based on “right of access”); Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1190, 135 P.3d 1221 (2006), cert. denied 549 U.S. 1265 (2007), superseded by statute on other grounds as stated in Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 567-68, 215 P.3d 561 (2009) (inverse condemnation action; recognizing “right of access” is distinct from the “regulation of traffic flow” or “circuity of access” and “right of access” applies only to and from abutting public roads or highways).
In summary, the government’s taking of direct access to an abutting roadway is a taking that is compensable in an eminent domain action. In contrast, the government’s regulation of traffic flow that may impact indirect access to a nearby roadway is not compensable in an eminent domain action. Because KDOT did not take the Landowners’ direct access to 130th Avenue, this does not qualify as a “right of access” case. The district court did not err in finding that the Landowners were not entitled to compensation for loss of highway access.
Issue 3: Reasonableness of KDOT’s Regulation of Traffic
This leads to the final issue raised by the Landowners, which they present as a subissue of the prior question. In this argument, the Landowners argue “even if KDOT’s actions are viewed as changes in the regulation of traffic flow, as KDOT argues, the Landowners still are entitled to the compensation and damages claimed because KDOT has unreasonably exercised its police power to regulate traffic flow.” In support of this argument, the Landowners cite McDonald’s Corp. in which this court stated that “Wal-Mart cannot recover for the diminution of value of its land due to the changes in flow of traffic where those changes are a reasonable exercise of the City’s police power.” McDonald’s Corp., 266 Kan. at 722. The McDonald’s Corp. court then asked: “Are the alleged damages to Wal-Mart’s property the result of a reasonable and noncompensable exercise of the City’s police power?” McDonald’s Corp., 266 Kan. at 722. Explaining the significance of the question, the McDonald’s Corp. court stated: “Initially, the district court is to make a determination of reasonableness. If exercise of police power is unreasonable, a taking has occurred and a compensation award is appropriate.” McDonald’s Corp., 266 Kan. at 724.
What the Landowners fail to recognize is this court’s later clarification of this point. In Koi~ytkowski, which was an inverse condemnation case based on an alteration of traffic patterns, we held:
“When a landowner’s access to an abutting roadway has been taken, there has been an exercise of eminent domain that requires just compensation. When a landowner’s access to nearby roadways has been altered or restricted through the regulation of traffic flow, there has been an exercise of the government’s police power that must have been reasonable. [Citation omitted.] In this latter situation, there is no talcing, and thus an action for inverse condemnation cannot succeed.” Korytkowski, 283 Kan. at 130.
Later in the Korytkowski opinion, we further explained:
“[A]n unreasonable exercise of [police] power might support a claim, just not a claim under an inverse condemnation theory. Although reasonableness is the standard by which we determine whether a government’s exercise of police power is valid, reasonableness is not the appropriate standard to determine whether a government action affecting real property in private hands constitutes a taking.” Korytkowski, 283 Kan. at 132.
The basis for this holding was discussed in Zimmerman v. Board of Wabaunsee County Comm’rs, 293 Kan. 332, 346, 264 P.3d 989 (2011). In Zimmerman, this court held that reasonableness of governmental action raises a due process issue, not a takings issue. Further, we held that if a governmental agency exercises its power in an unreasonable fashion, its action is void, not compensable. Zimmerman, 293 Kan. at 346.
This means that the issue of the reasonableness of KDOT’s regulation of the traffic flow does not relate to the question of compensation for a taking, which, as we have noted, is the sole issue in an eminent domain appeal from an appraiser’s award. See K.S.A. 2011 Supp. 26-508(a) (in an eminent domain action, “[t]he only issue to be determined therein shall be the compensation required by K.S.A. 26-513”). Even though the reasonableness of the governmental action is not related to the issue of compensation, in McDonald’s Corp. and some other previous cases, the reasonableness of traffic regulation was considered in an eminent domain action. McDonald’s Corp., 266 Kan. at 722-24; see, e.g., Hudson v. City of Shawnee, 246 Kan. 395, 403-04, 790 P.2d 933 (1990) (city did not raise issue of a noncompensable regulation under the police power until die eminent domain action was in progress; court held landowners could “challenge the reasonableness thereof in an implied contract action against the City” or “where a condemnation action is pending . . . the unreasonableness of the police power regulation may be tried in the condemnation action”).
Yet, in considering the reasonableness of the traffic regulation, the McDonald’s Corp. court did not deem the question to be part of the issue of compensation under K.S.A. 26-513. Rather, the McDonald’s Corp. court referred to the reasonableness of the exercise of police power as a question “related” to the eminent domain action. McDonald’s Corp., 266 Kan. at 709. Further, tire court held a claim to diminished value of property due to a change in traffic patterns did not fall under K.S.A. 26-513(d)(2) and could not be “repackaged” and brought under a theory that the factors in K.S.A. 26-513(d) were not exclusive. McDonald Corp., 266 Kan. at 721-22.
This holding is significant in light of several recent decisions of this court in which we rejected prior decisions that allowed “related” issues to be brought in an eminent domain appeal from an appraiser’s award. We have explained that “subject matter jurisdiction is vested by statute,” and “an eminent domain action is a special statutory proceeding that does not provide a forum to liti gate noncompensation issues, such as the necessity and extent of thetaicing. [Citation omitted.]” Miller v. Glacier Development Co., 293 Kan. 665, 669-70, 270 P.3d 1065 (2011) (Glacier II); see Miller v. Bartle, 283 Kan. 108, 116, 150 P.3d 1282 (2007) (An eminent domain action “ ‘does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right.’ ”); In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, Syl. ¶ 1, 683 P.2d 1247 (1984) (same).
This holding is based on the plain language of K.S.A. 2011 Supp. 26-508(a), which, as we previously noted, states the person appealing “shall bring the issue of damages to all interests in the tract before the court for trial de novo. . . . The only issue to be determined therein shall be die compensation required by K.S.A. 26-513, and amendments thereto.” By limiting the issue in an appeal from an appraisers’ award to compensation, the Kansas Legislature limited the court’s subject matter jurisdiction to die issue of compensation, meaning issues such as the right to exercise the power of eminent domain, necessity, and the extent of a taking may only be litigated in a separate civil action, usually in an action for injunction. Miller, 283 Kan. at 117.
Although neither party questions whether this court has subject matter jurisdiction over this issue, subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court’s own motion. Shipe v. Public Wholesale Water Supply Dist. No. 25,289 Kan. 160, 166, 210 P.3d 105 (2009). In fact, “parties cannot confer such jurisdiction upon a court by consent, waiver, or estoppel. [Citation omitted.]” Glacier II, 293 Kan. at 669; see Woods v. Unified Gov’t of Wyandotte County/KCK, 294 Kan. 292, 275 P.3d 46 (2012).
We not only raise the question, we conclude we do not have subject matter jurisdiction because, even if KDOT’s exercise of its police power was unreasonable, the Landowners’ recourse does not he in eminent domain compensation. The Kansas Legislature has limited jurisdiction in an eminent domain action to the issue of appropriate compensation for a lawful taking, and neither the parties nor the court can expand the statutorily defined jurisdiction. Consequently, neither this court nor tire district court has jurisdic tion to consider this issue during an appeal from an appraisers’ award. We, therefore, dismiss this issue for lack of jurisdiction.
In summary, in addition to dismissing the issue regarding the reasonableness of KDOT’s regulation of traffic for lack of subject matter jurisdiction, we affirm the district court’s findings that the Landowners’ “right of access” was not a compensable taking and reverse the district court’s finding in which it prohibited the Landowners from presenting evidence showing that the most advantageous use of Tract 47 was its integrated use with Tract 38. Because the Landowners were prevented from presenting evidence related to its theory of the highest and best use of Tract 47, we remand for further proceedings.
Affirmed in part, reversed in part, dismissed in part, and remanded.
BILES, J., not participating. | [
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The opinion of the court was delivered by
Johnson, J.:
Joseph Jones, Jr., seeks review of the Court of Appeals’ decision, State v. Jones, No. 97,696,2008 WL 4291467 (Kan. App. 2008) (unpublished opinion), affirming his convictions for aggravated criminal sodomy, furnishing alcohol to a minor for an illicit purpose, and endangering a child. We granted Jones’ petition for review in part to clarify whether a nurse’s testimony about hospital laboratory results was testimonial in nature within the meaning of the Confrontation Clause. But the evidence in the record is insufficient to make that determination in Jones’ favor, and we find no other reversible error. Accordingly, we affirm.
Factual and Procedural Overview
Jones was employed as a live-in farmhand at a stable where H.F. and other children volunteered to work in exchange for free horseback rides. On October 16, 2005, Jones called H.F., asking if she could come to work. When she arrived at the stable, the owner and a few other volunteers were there looking at horses. However, after H.F. had completed a few chores, she discovered that she had been left alone with Jones.
When H.F. entered the tack room where Jones resided to get a drink, Jones offered her two glasses of soda that contained alcohol. H.F. said she drank both glasses despite the fact that “[i]t made [her] whole chest burn.” Jones also gave her a “joint” and repeatedly pressured her to smoke it with him. Despite her initial protests, H.F. eventually agreed to smoke it “once or twice.”
When H.F. began feeling dizzy, she attempted to call her grandmother to come for her, but Jones pushed her to tire ground, pinned her wrists, knelt on top of her, and put his penis in her mouth. Although she was unsure why, Jones obeyed her command to get off of her. Once free, H.F. threatened Jones with a fork she retrieved from a nearby table and then called her grandmother to come pick her up, before running out into the street.
When the grandmother arrived, she found H.F. staggering down the middle of the road with Jones trailing behind her. In the car, the grandmother noticed that H.F. was acting upset, hysterical, and drugged. Upon arriving at grandmother s house, H.F. vomited several times and then told her grandmother that Jones had touched her.
After learning what had happened, H.F.’s mother took her to the hospital where nurse Gannon, a sexual assault nurse examiner (SANE), conducted an examination. Nurse Gannon collected two sets of physical samples: (1) oral swabs and blood samples for the Kansas Sexual Assault Evidence Collection Kit provided by the Kansas Bureau of Investigation (KBI), and (2) blood and urine samples pursuant to the doctor’s orders to test H.F.’s “basic chem-istries to see if she was generally healthy.” The first set of physical samples was given to the local police as part of the assault kit, which was logged into evidence and sent to the KBI forensic laboratory. Those samples were not analyzed for drags or alcohol. The second set was given to the hospital laboratory for analysis, the results of which included a positive indication of alcohol and marijuana in H.F.’s system.
Jones was charged with three counts: aggravated criminal sodomy, furnishing alcohol to a minor for an illicit purpose, and endangering a child. At trial, Jones made a hearsay objection to nurse Gannon’s testimony that the hospital laboratory results indicated that H.F.’s blood and urine contained alcohol and marijuana. Initially, the district court sustained the objection based on the State’s failure to lay a proper foundation for the medical records. After the State presented further foundational testimony, the court overruled Jones’ objection when the testimony was offered a second time. Pointedly, the written laboratory report was never admitted into evidence; rather, the State only offered Gannon’s testimony as to what was stated in the laboratory report.
The jury convicted Jones on all three counts, the court sentenced him to a term of months in prison, and Jones appealed both his convictions and sentences to the Court of Appeals. In that court, he argued that several errors warranted reversal of his convictions: (1) the admission of Gannon’s testimony regarding the hospital laboratory results violated his right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution, as well as under § 10 of the Kansas Constitution Bill of Rights; (2) he was convicted of child endangerment based on alternative means without jury unanimity; (3) the district court erred in failing to instruct the jury on the lesser included offense of criminal sodomy; and (4) his sentence was enhanced in violation of the Sixth and Fourteenth Amendments based on prior convictions that were not proved to the jury beyond a reasonable doubt.
The Court of Appeals affirmed Jones’ convictions and sentences. With respect to the Confrontation Clause issue, the panel noted that the alcohol and marijuana test results were not part of the KBI forensic investigation; rather, they were obtained from the hospital’s testing in connection with H.F.’s treatment. The panel observed that there was nothing in the record to suggest that the laboratory technician performing the tests would have known the samples came from a minor or a crime victim, and that if the technician would not have anticipated their use in a criminal prosecution, the results would not be testimonial in nature. We granted review.
Right of Confrontation
Jones’ complaint involves nurse Gannon’s brief testimony based upon the hospital’s laboratory report: “There [were] positive results for marijuana and for alcohol both in her drug test.” Because the nurse did not perform the testing, Jones made a hearsay objection at trial, contending that the nurse’s testimony related an out-of-court declaration by the laboratory technician that was offered for the truth of the matter asserted. The district court ultimately overruled the objection, apparently determining that the State had laid sufficient foundation to establish that the laboratory report was a business record, even though no report or record was ever proffered or admitted into evidence.
Jones does not specifically challenge the district court’s ruling on his hearsay objection. Rather, for the first time on appeal, Jones argues that the nurse’s hearsay testimony violated his right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution, as well as violating § 10 of the Kansas Constitution Bill of Rights. Ordinarily, the failure to specifically base a trial objection on the Confrontation Clause precludes appellate review of that issue. See State v. McCaslin, 291 Kan. 697, 708-09, 245 P.3d 1030 (2011) (appellate issue on right of confrontation not preserved with a hearsay objection); State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) (declined to entertain a Confrontation Clause challenge for the first time on appeal). Nevertheless, in the interest of justice, the Court of Appeals applied an exception to the preservation requirement and addressed the merits of Jones’ Confrontation Clause claim. The State did not formally seek our review of the panel’s employment of a preservation exception, so that issue is not before us.
In the watershed case of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court clarified and tightened the requirements to admit testimony in violation of the Sixth Amendment’s Confrontation Clause. Crawford rendered inadmissible at trial those statements to which the Confrontation Clause applies, unless the statement’s maker is unavailable and the defendant had a prior opportunity for cross-examination of the maker. Crawford, 541 U.S. at 68. But to implicate a defendant’s constitutional right of confrontation, the statement being offered must have been testimonial in nature. 541 U.S. at 68; see also State v. Miller, 284 Kan. 682, 711-12, 163 P.3d 267 (2007) (citing State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 [2007]). At the heart of this appeal is the question of whether the hospital laboratory technician’s statement of the testing results was testimonial in nature.
Standard of Review
“ ‘We employ an unlimited standard of review when addressing issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution.’ State v. Leshay, 289 Kan. 546, 547, 213 P.3d 1071 (2009); State v. Ransom, 288 Kan. 697, 708-09, 207 P.3d 208 (2009) (whether confrontation rights have been violated is a question of law subject to unlimited review).” State v. Marquis, 292 Kan. 925, 928, 257 P.3d 775 (2011).
Analysis
The Crawford, Court did not specifically define testimonial statements, opting instead to identify types of statements that could qualify:
“Various formulations of this core class of‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’. . . ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation omitted]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’ [citation omitted].” 541 U.S. at 51-52.
The Court later refined its Crawford analysis in Melendez-Diaz v. Massachusetts, 557 U.S. 305,129 S. Ct. 2527,174 L. Ed. 2d 314 (2009), holding that the sworn statements of laboratory analysts made in contemplation of litigation were testimonial and, thus, subject to Crawford’s confrontation requirements. See also State v. Laturner, 289 Kan. 727, 733-34, 750-51, 218 P.3d 23 (2009) (relying on Melendez-Diaz in finding a Kansas statute unconstitutional where it authorized the admission of a sworn forensic lab report in lieu of the preparer’s in-court testimony). Most recently, in Bullcoming v. New Mexico, 564 U.S. 647,131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610 (2011), the Court determined that a forensic laboratory report certifying the defendant’s blood-alcohol concentration was testimonial. The Court found it significant that while the analyst who prepared the report may not have had to exercise any independent judgment in creating it, the certification he signed included more than the “raw, machine-produced data” regarding Bullcoming’s blood-alcohol level, such as his adherence to specific protocols and information regarding chain of custody. 131 S. Ct. at 2714. It was those additions which placed the analyst’s certification squarely within confrontation requirements. 131 S. Ct. at 2714 (“These representations, relating to past events and human actions . . . , are meet [sic] for cross-examination.”).
At the time we granted review in this case, our decision in State v. Brown, 285 Kan. 261, 291, 173 P.3d 612 (2007), provided the best guidance for discerning a statement’s testimonial nature by providing a list of factors. But recently we reevaluated Brown in light of subsequent opinions issued by the United States Supreme Court that have refined the concept of statements made in the context of medical treatment. See State v. Miller, 293 Kan. 535, 264 P.3d 461 (2011); State v. Bennington, 293 Kan. 503, 264 P.3d 440 (2011).
In Miller, we were asked to decide whether the statements made by a 4-year-old victim of sex crimes to a SANE were testimonial. In doing so, we synthesized the United States Supreme Court’s holdings in Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 1156, 179 L. Ed. 2d 93 (2011); Bullcoming, 564 U.S. 647; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009); and Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008), and concluded that a more refined approach in analyzing these types of statements was necessary. Miller, 293 Kan. at 568-74.
Although we acknowledged that, generally, statements made to medical professionals for treatment purposes and recorded in medical records are not testimonial, we discerned that the ultimate determination of a statement’s character rests with the “primary purpose” of the questioning. 293 Kan. at 570. In that regard, whether statements made to a SANE are testimonial is a “highly context-dependent inquiry.” Miller, 293 Kan. at 574. “Because the focus is on objective facts, The relevant inquiry is not the subjective or actual purpose of tire individuals involved . . . , but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.’ Bryant, 131 S. Ct. at 1156.” Miller, 293 Kan. at 571. Relying primarily on Bryant, Miller adopted a nonexclusive list of the most relevant considerations for establishing the testimonial nature of a victim’s statement to a SANE. Those factors include “whether tire SANE was a State actor or agent, whether there was an ongoing emergency, whether the encounter was formal, and whether the statements and actions of both [the victim] and the SANE reflect a primary purpose focusing on the later prosecution of a crime.” Miller, 293 Kan. at 575.
Unfortunately, because Jones did not raise the right of confrontation issue at trial, we have no findings relevant to whether tire laboratory results were testimonial in nature. Specifically, we have no findings as to the primary purpose of the hospital technician s laboratory report. That absence precludes us from a proper review on this issue.
As the Court of Appeals opined, there is evidence in the record which would support a finding that the laboratory results in question were generated primarily for medical treatment purposes. Nurse Gannon testified that the doctor directed her to withdraw samples to be used for tests other than the KBI ldt, and she said that the tests were to check the victim’s “basic chemistries to see if she was generally healthy.” In contrast, the nurse testified that she was also assisting law enforcement, and Officer Simmons testified that he encouraged the family to take H.F.to the hospital to “get a rape kit and ... to also check on her medical condition.”
In short, H.F.’s hospital visit accomplished dual purposes, and it is unclear at what point the SANE’s activities might have transitioned from medical treatment to law enforcement purposes. We do not even have a finding on when H.F.’s mother consented to collecting the samples. See Miller, 293 Kan. at 578 (transition of SANE’s inquiries from those made for medical treatment purposes to those made by an agent of the State for the use in a later prosecution maybe determined by the timing of consent for collection). Moreover, the absence from the record of the written laboratory report is problematic. See Bullcoming, 131 S. Ct. at 2717 (whether a blood-alcohol concentration report was testimonial depended on the context in which it was taken and the purpose of the technician in running the report).
Without findings, we are handcuffed. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009) (regardless of whether the record contains sufficient evidence to make factual findings, that is not the role of this court). “Appellate courts do not make factual findings but review those made by district courts.” See Thomas, 288 Kan. at 161; In re Adoption of A.A.T., 287 Kan. 590, 599, 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). Accordingly, we must affirm the Court of Appeals’ determination that the testimony of nurse Gan-non was not testimonial in nature.
Alternative Means
Next, Jones presents a curious, albeit creative, alternative means argument. He contends that the jury’s verdict on the charge of endangering a child was legally inadequate because the State presented evidence of three alternative means for committing the offense, two of which were legally insufficient because they were multiplicitous with the other charges. Specifically, Jones argues that the crime of endangering a child could have been supported by any one of the following acts: (1) placing his penis in H.F.’s mouth while pinning her down; (2) giving her alcohol; and (3) providing and encouraging H.F. to smoke marijuana. But because the first act was the basis for the sodomy charge and the second was the basis for conviction on furnishing alcohol to minors, Jones argues that evidence of those offenses cannot be used to fulfill the super sufficiency requirement of alternative means. The Court of Appeals simply concluded that this was not an alternative means case and we agree.
‘When a single offense is alleged that may be committed in more than one way, the court is presented with an alternative means case. [Citation omitted.] When several acts are alleged, any of which could constitute the crime charged, the court is presented with a multiple acts case. [Citation omitted.]” State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011).
To convict Jones of endangering a child under K.S.A. 21-3680, the State had to prove that he “intentionally and unreasonably caus[ed] or permitt[ed] a child under the age of 18 years to be placed in a situation in which the child’s life, body or health [might] be injured or endangered.” An alternative means analysis looks at the material elements of the crime, rather than the number of possible factual scenarios that might fit into those elements. For instance, a traditional alternative means argument would go something like this: The defendant could have been convicted of one incident of endangering a child by either causing the child to be placed in a dangerous situation or by permitting the child to be placed in that circumstance, and there was evidence of only one of the means. But that is not the situation here. Rather, Jones argues that there are three factual scenarios, involving three separate and distinct acts, each of which could have formed the basis for a charge of endangering a child.
In other words, Jones describes multiple acts whereby the State could have filed three counts of endangering a child. In that scenario, the concern is whether the State elected the act upon which it was relying or the trial court gave a unanimity instruction. Inexplicably, the parties argue over whether the State’s closing arguments effected an adequate election from among the multiple acts, even though such an election does not save an alternative means case. In short, Jones’ alternative means issue does not fit the facts of this case, and his arguments are without merit.
Lesser Included Offense Instruction
Jones next contends that the district court erred in failing to instruct the jury on simple criminal sodomy, even though Jones did not request the instruction or object to its omission. Accordingly, Jones is not permitted to claim error on appeal unless the failure to give the lesser included offense instruction was clearly erroneous. See K.S.A. 22-3414(3).
Standard of Review
Before we can find that the omission of a lesser included offense instruction was clearly erroneous, we must find that the instruction was legally and factually appropriate. That determination is made through a de novo review. See State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012).
Analysis
A district court is under no duty to provide a lesser included offense instruction if the jury could not reasonably convict the defendant of that lesser included offense based on the evidence presented. State v. McCullough, 293 Kan. 970, 977, 270 P.3d 1142 (2012); see K.S.A. 22-3414(3). An element of simple criminal sodomy is that the victim was at least 14 years old. K.S.A. 21-3505(a)(2). At trial, H.F.’s uncontroverted testimony was that her date of birth is June 28, 1993, which made her 12 years old at tire time of the incident. Accordingly, even if the jury had been given a lesser included offense instruction on simple criminal sodomy, it did not have sufficient evidence from which it could have reasonably convicted Jones of that offense. The omission of the lesser included offense instruction on simple criminal sodomy was not erroneous and, therefore, it was not clearly erroneous.
Appbendi Challenge
Finally, Jones argues that use of his prior convictions in his criminal history score to enhance his sentences without requiring the State to prove tire convictions to a jury beyond a reasonable doubt is prohibited under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He acknowledges that State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), controls this issue, but he includes it to preserve the argument for federal review. Our position has not changed since Ivory. See, e.g., State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008). Accordingly, we affirm Jones’ sentences.
Affirmed.
Davis, C.J., not participating.
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The opinion of the court was delivered by
Luckert, J.:
A juiy convicted Alexander Tapia of nonresidential burglary, theft, vehicular burglary, and conspiracy to commit non residential burglaiy. On appeal to the Court of Appeals, Tapia argued: (1) The evidence to support his charge of conspiracy to commit nonresidential burglary was insufficient due to a defect in the complaint; (2) tire district court erred by denying his request for an accomplice jury instruction; (3) the district court violated his constitutional rights when it sentenced him to an enhanced sentence based upon his criminal history without first proving those facts to a jury beyond a reasonable doubt; and (4) the district court violated his constitutional rights when it sentenced him to the aggravated terms within the applicable sentencing grid boxes without first proving tiróse facts to a jury beyond a reasonable doubt.
The Court of Appeals rejected Tapia’s arguments and affirmed his convictions and sentences. State v. Tapia, 42 Kan. App. 2d 615, 214 P.3d 1211 (2009), rev. granted September 8, 2010. On review of that decision, we affirm the Court of Appeals and district court.
Facts and Procedural History
Around midnight on June 11, 2007, Highway Patrol Trooper James Parr stopped a Chevy Tahoe for speeding. The Tahoe was occupied by Tapia, Aram Garcia, and Omar Fraire. Parr issued a warning to the driver and released him.
Approximately 1 hour later, law enforcement officers responded to a reported burglary at the residence of James Mongold. The passenger window had been broken out of a pickup truck parked outside the residence, and a computer jump drive, a cell phone, a garage door opener, and gas cards had been taken from the pickup truck. Also, Mongold’s garage door had been opened and several items were stolen from the garage, including a tool box, several hand tools, and two floor creepers that are used to slide under a vehicle to change oil or perform other work.
Shortly after law enforcement officers were dispatched to the burglary, Parr heard radio transmissions that included a description of the burglar and the suspect’s vehicle. Within a few minutes, Parr saw a vehicle, a Chevy Tahoe, matching that description. The Tahoe’s driver was speeding and ran a red stoplight, causing Parr to initiate a traffic stop. When Parr approached the Tahoe, he realized it was the same Tahoe he had stopped earlier. He also noticed that the occupants were the same. Parr observed (1) a car jack, a floor creeper, and a tool box that he had not seen during the first stop; (2) Tapia’s clothes matched the description the dispatcher had given of tire burglar; and (3) Tapia was attempting to take off black baseball gloves, which Parr found unusual given that he did not see any other baseball equipment and it was very hot and muggy. At this point, Tapia, Garcia, and Fraire were arrested. As a search incident to arrest, Parr searched Tapia’s pockets where he found gas cards and a jump drive. Mongold later identified the items found in the Tahoe and on Tapia’s person as those taken from the pickup truck and garage.
After the arrest, when interviewed by law enforcement officers, Fraire denied any knowledge of the crimes. Garcia, however, gave a statement. His statement was described in an affidavit filed with the district court in support of a warrant for Tapia’s arrest and later made available to Tapia through a discovery order entered by the court. According to information in the affidavit, Garcia stated that he was driving die Tahoe when Fraire told him to pull over near a white pickup truck. Tapia got out of the Tahoe, broke the pickup truck’s window, and grabbed a cell phone and a garage door opener. Fraire or Tapia used the garage door opener to get into the garage, and both of them carried a tool box out of the garage and put it in the back of the Tahoe. Garcia then drove Fraire and Tapia from the scene.
Garcia, Fraire, and Tapia were all charged, but Garcia and Fraire entered into diversion agreements. Both testified at Tapia’s jury trial. Garcia testified that Tapia saw Mongold’s pickup truck and decided to break into it. Garcia served as a lookout and testified that he did not actually see Tapia break the pickup truck’s window, but he heard the window shatter. Tapia returned to the Tahoe with a cell phone and a garage door opener, which Tapia used to open Mongold’s garage. At Tapia’s direction, Garcia pulled the Tahoe into the alley behind the garage. From his vantage point, Garcia did not actually see Tapia go into the garage, but when Tapia came back to the Tahoe, he was carrying a tool box. Tapia then went back to the garage and returned with two creepers. Garcia also testified that Tapia was wearing black baseball gloves when he headed toward the garage. Contraiy to the statement Garcia had given to the officers on the night of the incident, Garcia told the jury that Fraire never exited the Tahoe. According to Garcia, when Parr stopped them tire second time, they were driving to Tapia’s residence so Tapia could get his truck because he planned to return and “wipe out the house [and] the garage.”
Fraire’s testimony confirmed Garcia’s version of events. Fraire also indicated that Tapia was the only individual who entered Mon-gold’s truck and garage.
The jury convicted Tapia of nonresidential burglary, theft, vehicular burglary, and conspiracy to commit nonresidential burglary. The district court sentenced Tapia to serve 23 months’ imprisonment for nonresidential burglary, 7 months for theft, 7 months for vehicular burglary, and 7 months for conspiracy to commit nonresidential burglary, all aggravated terms within the applicable sentencing grid boxes. The court ordered all of the felony sentences to be served consecutive to each other and to Tapia’s sentences imposed in another case.
Tapia timely appealed. After the Court of Appeals affirmed his convictions and sentences, Tapia, 42 Kan. App. 2d at 618-23, Tapia filed a petition seeking this court’s review of the Court of Appeals’ decision. This court accepted review and has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).
Sufficiency of Evidence
Before the Court of Appeals, Tapia challenged the sufficiency of the evidence relating to his conspiracy conviction on the ground that the complaint failed to allege an overt act in furtherance of a conspiracy agreement as required by K.S.A. 21-3302(a) (conspiracy), which states:
“(a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.” (Emphasis added.)
Here, the complaint against Tapia failed to satisfy this requirement because the State failed to allege an overt act, instead reit erating that there was an agreement. Specifically, the complaint stated:
“That on or about the 11th day of June, 2007 the said above person named in the captioned ... of the complaint, within the above named jurisdiction in the State of Kansas, then and Aere being, Ad Aen and Aere contrary to statute or orAnance unlawfully, feloniously, and willfully agree wiA another person, to-wit: Aram Garcia and Omar Fraire to commit Ae crime of Burglary and an overt act in furtherance of the conspiracy was committed, to wit: agreed with Aram Garcia and Omar Fraire to break into a garage to commit a theft therein, in violation of K.S.A. 21-3302 and 21-3715(b) Conspiracy to Commit Burglary, a level 9 nonperson felony.” (Emphasis added.)
The Court of Appeals held the complaint against Tapia was “clearly . . . defective” for failing to comply with the pleading requirement in K.S.A. 21-3302(a). Tapia, 42 Kan. App. 2d at 618. The State does not challenge this ruling. Hence, we accept that the complaint was defective and that the State failed to meet the allegation requirement of K.S.A. 21-3302(a).
Because the complaint was defective, the Court of Appeals addressed Tapia’s potential remedy. In doing so, the panel concluded tire defect in the complaint did not deprive the district court of jurisdiction to try Tapia on the conspiracy charge. Further, as we will discuss in more detail, the panel concluded that Tapia’s insufficiency of evidence argument was improper. See Tapia, 42 Kan. App. 2d at 618-22.
In his petition for review, Tapia contends the Court of Appeals erred in treating his argument as a defective complaint claim. Rather, Tapia argues that because K.S.A. 21-3302(a) “requires the overt act had to both be alleged and proved, and it was not alleged in this case, the State presented insufficient evidence to support the conspiracy charge against Mr. Tapia.” Tapia asserts the Court of Appeals panel should have followed the decision of another Court of Appeals panel in State v. Marino, 34 Kan. App. 2d 857, 864, 126 P.3d 426, rev. denied 281 Kan. 1380 (2006). In Marino, the Court of Appeals determined the evidence of conspiracy was insufficient because the State failed to allege an overt act in Ma-rino’s complaint as required in K.S.A. 21-3302(a) and, therefore, failed to prove that an overt act had been committed in furtherance of the conspiracy. Marino, 34 Kan. App. 2d at 861-66.
In this case, the Court of Appeals disagreed with Tapia’s argument and concluded the result in Marino was at odds with this court’s decision in State v. Shirley, 277 Kan. 659, 89 P.3d 649 (2003). Tapia, 42 Kan. App. 2d at 621-22.
Shirley and Hall
In Shirley, the defendant, like Tapia, argued the complaint charging him with conspiracy to manufacture methamphetamine was defective because it failed to allege the specific overt act committed in furtherance of the conspiracy as required by K.S.A. 21-3302(a). The Shirley court agreed with the defendant’s argument because the complaint merely stated that the defendant had committed an “ ‘overt act in furtherance of the conspiracy.’ ” Shirley, 277 Kan. at 665.
The Shirley court then examined whether this deficiency deprived the district court of jurisdiction over the complaint. To answer this question, the Shirley court applied the holding of State v. Hall, 246 Kan. 728, 754, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
In Hall, the court examined several issues in which the defendant argued that various charges in an information were defective. The Hall court explained the principles that served as the basis for Hall’s arguments, stating:
“The Bill of Rights in the Kansas Constitution requires that the accused be allowed to demand the nature and cause of the accusation. Kan. Const. Bill of Rights, § 10.... The § 10 language is similar to the language of the Sixth Amendment to the United States Constitution, which extends to an accused the right ‘to be informed of the nature and cause of the accusation.’ [Citation omitted.]
“The constitutional protections referred to are implemented by the requirements of K.S.A. 22-3201. The complaint, information, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged and, when drawn in the language of the statute, shall be deemed sufficient. An information is sufficient if it clearly informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. [Citation omitted.]” Hall, 246 Kan. at 753-54.
The Hall court also noted that caselaw required each element of the crime to be alleged. See Hall, 246 Kan. at 746-47.
A failure to meet these requirements is not necessarily fatal to the State’s case, however. See Hall, 246 Kan. at 756-59. The Hall court discussed procedural mechanisms available to the State to cure a defective allegation, such as an amendment to the complaint or information, and those available to a defendant to protect the right to notice, including the right to request a bill of particulars or to file a motion to arrest judgment. Hall, 246 Kan. at 758-60.
Even if these procedural mechanisms are not used, a defendant is not necessarily entitled to a reversal of a conviction. The Hall court explained that “[t]he longer it takes for the defendant to challenge the sufficiency of the information, the greater the presumption of regularity.” Hall, 246 Kan. at 761. The Hall court adopted two different tests for determining if a defective complaint warrants reversal of a conviction—one to be used if a defendant challenges the charging document through a motion for arrest of judgment before a district court, which the Hall court indicated was the “proper procedure,” and the other if a defendant raises the challenge for the first time on appeal. Hall, 246 Kan. at 760-61, 764-65; see Shirley, 277 Kan. at 661-62.
As to the first test, when a motion to arrest judgment is filed in the district court, the Hall court directed the district court to “test its merit by utilizing the rationale of our -pre-Hall cases.” Hall, 246 Kan. at 764. The Shirley court explained what this meant, stating: “Under the pre-Hall standard, the court must focus on technical considerations. [Citations omitted.] If the charging document does not set out the essential elements of the crime, it is fatally defective and the conviction must be reversed for lack of jurisdiction. [Citation omitted.].” Shirley, 277 Kan. at 661-62.
As to the second test, a defendant who waits until the appeal to challenge the charging document must satisfy a “new standard of review” established by die Hall court. Shirley, 277 Kan. at 662; see Hall, 246 Kan. at 765. The Shirley court explained that this new standard—referred to as the post-Hall standard or test—requires the defendant to show that the claimed defect either
“(1) prejudiced the defendant’s preparation of a defense, (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution, or (3) limited die defendant’s substantial rights to a fair trial under the Sixth Amendment to the United States Constitution or Section 10 of the Kansas Constitution Bill of Rights. [Hall,] 246 Kan. at 765.” Shirley, 277 Kan. at 662.
The Shirley court, applying these principles from Hall, noted the defendant followed the “proper procedure” and first challenged the complaint at the district court level in a motion for arrest of judgment. Hence, the court concluded, the applicable test was the pr e-Hall standard that focuses on technical compliance with the essential elements of the crime. Shirley, 277 Kan. at 661-62.
In examining the statutory requirements under the conspiracy statute, K.S.A. 21-3302(a), the Shirley court sought to harmonize K.S.A. 21-3302(a) with K.S.A. 22-3201(b), the statute that requires the complaint to state “the essential facts constituting the crime charged.” The court noted the specific allegation requirement under the conspiracy statute, K.S.A. 21-3302(a), concluding it “is the only criminal statute that requires such a specific allegation in the elements of a crime.” Shirley, 277 Kan. at 665. Applying this unique requirement, the Shirley court concluded that when the State simply alleges an “ ‘overt act in furtherance of the conspiracy,’ such language fails to adequately inform the accused of the charges against him or her and limits his or her ability to prepare a defense.” Shirley, 277 Kan. at 665. Thus, the court ruled that the complaint in Shirley’s case was fatally defective under the pr e-Hall technical standard and, as a result, his conviction had to be reversed. Shirley, 277 Kan. at 665.
Tapia’s Discussion of Shirley and Hall
In this case, the Court of Appeals, having found that the allegation in the complaint against Tapia was insufficient because it only alleged an agreement and not an overt act, applied the post-Hall standard because Tapia had not filed a motion to arrest judgment in the district court. Instead, Tapia had waited until his appeal to raise a challenge. The Court of Appeals noted: “Tapia presents no facts or arguments on appeal that address the Hall standards. He places all his eggs in the Marino basket.” Tapia, 42 Kan. App. 2d at 621. After a discussion of the post-Hall standard, the Court of Appeals concluded Tapia had not been prejudiced in his defense because he was aware of Garcia’s and Fraire’s statements to officers, the wording of the complaint would not impede Tapia’s ability to assert double jeopardy in a later prosecution, and Tapia’s rights at trial had not been limited. Tapia, 42 Kan. App. 2d at 621. In conclusion, the Court of Appeals noted that “there was overwhelming evidence of overt acts committed by Tapia in breaking into the truck and into the garage. Shortly after the burglary Tapia was caught with the stolen goods in the vehicle and on his person.” Tapia, 42 Kan. App. 2d at 622; see also State v. Wilson, No. 105,029, 2011 WL 5389894, at s8 (Kan. App. 2011) (unpublished opinion) (rejecting sufficiency of the evidence argument based on failure to allege an overt act and “following] the Tapia court’s well-reasoned analysis and reviewing] the issue under the Hall factors, as required by Shirley”), petition for review filed December 5, 2011.
In his petition for review, Tapia does not take issue with the Court of Appeals’ analysis of the post-Hall factors. Nor does he question the Hall decision. Rather, he states:
“Mr. Tapia does not now, and did not before the Court of Appeals, argue that his defective complaint prejudiced his ability to defend himself at trial. Mr. Tapia’s argument has always been that the State presented insufficient evidence of conspiracy because, in order to convict Mr. Tapia of conspiracy under the plain language of the conspiracy statute, that overt act had to be both alleged and proven. Mr. Tapia’s complaint was defective, however, his issue on appeal is that this caused the State to present insufficient evidence. The State proved die overt act at trial. However, the State failed to allege the overt act. Therefore, without die required allegation of the overt act (which did not occur because of the defective complaint), the State has presented insufficient evidence of Mr. Tapia’s conspiracy in this case."
The decision in Shirley did not address this argument, according to Tapia. He therefore disagrees with the Court of Appeals’ determination that Shirley is controlling in this case. Instead, he continues to argue the reasoning and holding of Marino, 34 Kan. App. 2d 857, applies.
Marino
In Marino, a different panel of the Court of Appeals agreed with Marino’s argument that there can be no conviction for conspiracy unless an overt act is alleged and that same overt act is proved. The complaint charging Marino with conspiracy to commit aggravated battery merely alleged that “ ‘an overt act in furtherance of the conspiracy was committed ....’” Marino, 34 Kan. App. 2d at 860. Marino had not, however, moved to arrest judgment in the district court.
The Marino court noted that usually if a complaint fails to allege an element and a defendant fails to move to arrest judgment a defendant is required to establish one of the three post -Hall factors to prevail on his or her defective-complaint claim. But the court noted the unique allegation requirement in K.S.A. 21-3302(a) and determined that “[tjhis means that an overt act is an essential element of the crime of conspiracy.” Marino, 34 Kan. App. 2d at 862. Yet, rather than treat the overt act allegation requirement in the same manner as other elements by applying Hall, the court concluded Hall’s analysis did not apply. In reaching this conclusion, the Marino court found the Shirley decision instructive, but it relied on a different portion of the Shirley decision—a discussion of a jury instruction regarding the elements of conspiracy—rather than the Shirley court’s defective complaint discussion. Marino, 34 Kan. App. 2d at 862-63.
The jury instruction issue in Shirley was, according to the Shirley court itself, moot because the court had reversed Shirley’s conspiracy conviction based on the defective complaint; nevertheless, the Shirley court chose to address the issue because “it highlights some of the problems that can occur when the complaint fails to allege specific facts of the overt act in furtherance of a conspiracy.” Shirley, 277 Kan. at 665-66. In other words, the discussion on which the Marino court relied was dicta.
The jury instruction in Shirley provided “ ‘[t]hat the defendant or any party to the agreement acted in furtherance of the agreement by an overt act.’ ” Shirley, 277 Kan. at 666. This language differed from language in the complaint, which indicated Shirley was the one who committed the overt act. Shirley, 277 Kan. at 667. In discussing the propriety of the jury instruction, the Shirley court stated:
“K.S.A. 21-3302(a) requires that an overt act in furtherance of the conspiracy be alleged and proved. Because the statutory language joins allegation and proof with the conjunction ‘and,’ both the factual allegation in the charging document and the proof of the same factual allegation are required for a conviction. Thus, to find a defendant guilty, the jury must find that the defendant or a coconspirator committed the overt act that was alleged in the charging document. The charging document must specify both the act and the actor.” Shirley, 277 Kan. at 667.
Citing this discussion in Shirley, the Marino court concluded: “Shirley explains that if the State is required to allege an essential element in the charging document, the essential element should not be constructively amended or broadened by a later jury instruction.” Marino, 34 Kan. App. 2d at 863. Although not faced with a claim of instructional error, the Marino court nevertheless concluded that tins portion of the Shirley decision supported the defendant’s argument in which he essentially challenged the sufficiency of the evidence. The Marino court concluded the legislature’s intent was for “the State to allege in the complaint or the indictment and to prove at trial that an overt act in furtherance of the conspiracy has been committed.” Marino, 34 Kan. App. 2d at 864. Because tire State failed to allege an overt act, the Marino court determined that the evidence was insufficient for a rational factfinder to conclude that the defendant was guilty beyond a reasonable doubt of conspiracy to commit aggravated battery. Marino, 34 Kan. App. 2d at 864.
Because it applied a sufficiency test, the Marino court concluded: “Simply stated, based upon the complaint, the State failed to prove that an overt act had been committed in the furtherance of the conspiracy. As a result, the Hall factors are inapplicable to this case.” Marino, 34 Kan. App. 2d at 864. The Marino court continued, however, stating that even if the post-Hall standard was applied, the complaint had to be dismissed. First, the court determined that the lack of notice of die overt act in the complaint deprived the defendant of due process of law. Second, because K.S.A. 21-3302(a) requires proof of the commission of the overt act alleged in the complaint, the court concluded it was impossible for the State to prove an overt act that was never alleged, which denied the defendant a fair trial. Marino, 34 Kan. App. 2d at 864-66.
Tapia’s Discussion of Marino
The Court of Appeals panel in the present case disagreed with the Marino court’s conclusions regarding the effect of the Shirley decision. The Tapia court noted:
“[The Marino court reached its holding] in spite of the fact that the Supreme Court in Shirleij applied K.S.A. 21-3302(a) to the State’s complaint only as part of its pre-Hall technical compliance analysis. The Marino court treated noncompliance with K.S.A. 21-3302(a) as a cause for conducting a -pre-Hall technical compliance analysis. The Supreme Court in Shirley, on the other hand, treated noncompliance with K.S.A. 21-3302(a) as grounds for reversal after it had determined that Hall did not apply.” Tapia, 42 Kan. App. 2d at 620-21.
The Tapia court also factually distinguished Marino, noting that Marino’s coconspirator did not testify at trial and in that case the State sought to prove the conspiracy by admitting a journal entiy, while Tapia’s coconspirators testified in person, giving Tapia ample opportunity to test their credibility before the jury. Tapia, 42 Kan. App. 2d at 622. Also, in Tapia, the district court had instructed the jury that the overt act necessary to convict Tapia of conspiracy was “ ‘entering a 2005 Chev[r]olet pickup and/or a garage at 1226 N. Calhoun’ ” on the date of the burglary. Tapia, 42 Kan. App. 2d at 622. Because Tapia was also charged with burglarizing the pickup truck and the garage, the Tapia court concluded “this instruction did not impose any added burden on Tapia or expand the scope of his criminal liability under the conspiracy charge.” Tapia, 42 Kan. App. 2d at 622.
Defective Complaint or Insufficiency
Our resolution of the question of whether the Tapia or Marino courts correctly analyzed whether the failure to allege an overt act means there will be a failure of proof requires us to interpret K.S.A. 21-3302(a). As in any situation in which a court is called upon to interpret or construe statutory language, the touchstone is legislative intent. To define legislative intent, a court begins by exam ining and interpreting the language the legislature used. Only if that language is ambiguous does a court rely on any revealing legislative history or background considerations that speak to legislative purpose, as well as the effects of application of canons of statutory construction. When a statute is plain and unambiguous, a court merely interprets the language as it appears; a court is not free to speculate and cannot read into the statute language not readily found there. Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012); Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 280, 241 P.3d 15 (2010); State v. Bonner, 290 Kan. 290, 296, 227 P.3d 1 (2010).
K.S.A. 21-3302(a) clearly requires that an overt act be alleged and that an overt act be proven. Nevertheless, there is no requirement that the State prove to the factfinder that it had alleged the overt act. As with other crimes, the State is required to prove the elements of the crime, which in the case of a conspiracy are (1) an agreement by two or more persons to commit a crime and (2) an overt act by one or more of the coconspirators in furtherance of the conspiracy (i.e., an agreement and overt act made for the purpose of committing a crime). See State v. Hill, 252 Kan. 637, 641, 847 P.2d 1267 (1993). The sufficiency of the evidence test “ ‘ “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.” ’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Applying the sufficiency of the evidence standard to the facts of this case, it can easily be concluded the jury could have found Tapia guilty beyond a reasonable doubt. The State had presented sufficient evidence of an agreement to commit burglary and an overt act in furtherance of the conspiracy agreement. The district court instructed the juiy regarding these elements and instructed the jury it had to find that Tapia or an accomplice “ ‘acted in furtherance of the agreement by entering a 2005 Chev[r]olet pickup and/ or garage at 1226 N. Calhoun.’ ” The jury was not—and need not have been—required to find that the State had alleged this overt act in order to convict Tapia.
In an attempt to establish a failure of proof, Tapia constructs an argument that has as its foundation the dicta in Shirley, 277 Kan. at 665-66, relating to a potential jury instruction error. In this dicta, the Shirley court suggested that the allegation of the overt act must be in the complaint and that the complaint cannot be constructively amended by a juiy instruction. Yet, this dicta raises an issue of due process, not sufficiency of the evidence.
Moreover, there are reasons to reject the dicta in Shirley. The suggestion that unique due process rules apply to the allegation of an overt act makes the allegation requirement of K.S.A. 21-3302(a) sacrosanct. Certainly, as noted by the Shirley court, the requirement that an overt act be alleged is unique in that it is the only criminal provision drat requires a specific factual allegation. Shirley, 277 Kan. at 665. Yet, the requirement that an element be alleged is not unique and, even though there is a requirement that each element be alleged and each element be proved, there is no precedent for arguing that the failure to allege any other element means the evidence is insufficient. Rather, the various procedural mechanisms and remedies discussed in Hall come into play. There is nothing in K.S.A. 21-3302(a) that indicates these general rules of criminal procedure do not apply when a conspiracy is alleged. We conclude that the mere addition of a unique requirement that tiie factual circumstance of the overt act be alleged and the placement of that requirement in the same statute as a requirement of proof do not convey a legislative intent to create a unique sufficiency of the evidence analysis.
To illustrate the difference in treatment that Tapia’s argument suggests, consider what would happen if the State had failed to allege the other element of a conspiracy, the agreement. See Hill, 252 Kan. at 641 (stating the two essential elements of conspiracy are [1] an agreement and [2] an overt act). Although the agreement is not mentioned in K.S.A. 21-3302(a), it must be alleged. See K.S.A. 22-3201(b) (requiring allegation of “essential facts constituting the crime charged”); K.S.A. 22-2202(8) (defining “complaint” to mean “a written statement under oath of the essential facts constituting a crime”); Hall, 246 Kan. at 763-64 (explaining constitutional and statutory right to have elements of crime alleged). Further, the existence of an agreement must be proved beyond a reasonable doubt.
Yet, if an agreement had not been alleged, Tapia would not have been able to argue, as he does regarding the overt act, that he was entitled to a determination that there was insufficient evidence of his guilt. Rather, the defect in the complaint would have been subject to a Hall analysis or, if the allegation were constructively amended through a jury instruction, Tapia would have had to establish that this expansion impaired his substantial due process rights. See State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009) (“A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous. That error is excusable only where the substantial rights of the defendant are not prejudiced.”).
Making the failure to allege the factual circumstances of the overt act unassailable, as Tapia suggests, would create an absurd dichotomy between an overt act allegation defect and a defect in alleging any other element of a crime. It is a fundamental rule of statutory interpretation that courts are to avoid absurd or unreasonable results. Kansas One-Call System v. State, 294 Kan. 220, 233, 274 P.3d 625 (2012). Even though the Shirley court was not considering the issue as argued by Tapia, the court reconciled this potential dichotomy by applying the Hall analysis when determining the remedy for the State’s failure to allege an overt act as required by K.S.A. 21-3302(a). We likewise conclude that the failure to allege an overt act raises due process concerns and is subject to the general rules of criminal procedure, such as the Hall analysis, but does not require an insufficiency of evidence analysis. We overrule the holding to the contrary in State v. Marino, 34 Kan. App. 2d 857, 864, 126 P.3d 426, rev. denied 281 Kan. 1380 (2006), and disapprove of any contraiy dicta in State v. Shirley, 277 Kan. 659, 89 P.3d 649 (2003).
Simply put, regardless of the terms Tapia uses to couch his argument, as the Shirley court concluded, the heart of such a claim is an allegation of a defective complaint. See State v. McElroy, 281 Kan. 256, 261-62, 130 P.3d 100 (2006) (finding that although defendant framed issue as a jury instruction violation, defendant was really challenging the sufficiency of the charging document to confer jurisdiction; thus, Hall applied). The State’s failure to allege an overt act in furtherance of a conspiracy as required by K.S.A. 21-3302(a) does not mean that the evidence against a defendant is insufficient. Rather, the complaint is defective and subject to an analysis under State v. Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
Under Hall, because Tapia did not raise his current challenge before the district court, the Court of Appeals correctly applied a commonsense interpretation of Tapia’s complaint. Tapia, 42 Kan. App. 2d at 621-22 (see Hall, 246 Kan. at 764-65). Tapia presents no facts or arguments that address die Hall standards. Nor does Tapia raise any objection to the constructive amendment through the jury instruction. As the Court of Appeals stated, Tapia “places all his eggs in the Marino basket.” Tapia, 42 Kan. App. 2d at 621.
We conclude the Court of Appeals correctly ruled that the State’s error in its allegation of a specific overt act in furtherance of the conspiracy does not constitute reversible error based on an argument of insufficient evidence.
Accomplice Jury Instruction
Tapia next argues that Garcia and Fraire were accomplices and, therefore, die district court erred in rejecting his request for an accomplice juiy instruction. The State questions whether Garcia and Fraire were actually accomplices and maintains tiiat any error in not giving the instruction was harmless.
During the jury instruction conference, Tapia’s counsel requested “a special instruction on the testimony of co-conspirators that that [sic] should be considered with suspicion.” The district court responded, “There is no such thing,” and stated that it would not give any instruction regarding the testimony of coconspirators.
On appeal, Tapia claims he requested the instruction based on PIK Crim. 3d 52.18, which states: “An accomplice witness is one who testifies that (he)(she) was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.”
Standard of Review
The Court of Appeals applied the standard of review for when a district court refuses to give a requested instruction. Tapia, 42 Kan. App. 2d at 623; see State v. Edwards, 291 Kan. 532, 551, 243 P.3d 683 (2010) (view evidence in favor of party requesting instruction; considering instructions as a whole to see if proper state law and if jury could have been misled). We disagree that this is the appropriate standard of review, however, because, even though defense counsel requested an instruction, the request was for a coconspirator instruction, not an accomplice instruction. The district court’s response that “[t]here is no such thing” could be interpreted in one of two ways, either of which lead us to conclude that defense counsel’s request failed to properly object to the failure to give the accomplice instruction.
Under the first interpretation, the district court’s comment can be understood to reflect the legal distinction between the terms “coconspirator” and “accomplice.” There is overlap between the meaning of the terms and the legal concepts attached to each; accomplices can be coconspirators and vice versa, and both accomplice law and conspiracy law involve special considerations regarding group crimes. But tire terms are not synonymous. Nor is the law applying to accomplices and coconspirators identical or even fully parallel. See 16 Am. Jur. 2d, Conspiracy § 3. Because of these distinctions, defense counsel’s request for a “coconspirator” instruction was not precise, and the district court may have recognized the distinctions and considered the defense request literally.
The second interpretation is that the district court simply did not understand the request because it was not stated “distinctly” as required by K.S.A. 22-3414(3), which states in part:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime 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 or the failure to give an instruction is clearly erroneous.” (Emphasis added.)
While we would not go so far as to hold that a jury instruction request must be made by referring to a pattern jury instruction by number in order to meet the requirement that an objection be stated distinctly, in this case we conclude Tapia was required to clarify the court’s apparent misunderstanding of his request in order to make his objection distinct. Once it was clear the district court did not understand the defense request for an accomplice instruction or did not understand that a pattern instruction was being requested, Tapia needed to clarify the request and refer the court to the pattern instruction.
As we have explained, “it is important to remember that the purpose of requiring an objection is to allow the district court to correct an error, if one occurred. [Citation omitted.]” State v. Ellmaker, 289 Kan. 1132, 1139, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010). In Ellmaker, the defendant objected to an instruction on one ground but asserted a different argument on appeal. Under those circumstances, even though the defendant had objected to the instruction, we concluded the defendant failed to comply with K.S.A. 22-3414(3). Ellmaker, 289 Kan. at 1139. Likewise, here, Tapia’s request for an instruction can be interpreted as asking for a different instruction from the one now being argued or, alternatively, as being so indistinct as to not clearly communicate the request.
The implications of the failure to comply with K.S.A. 22-3414(3) were recently clarified in State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012). We first explained that a jury instruction issue, like all issues on appeal, is subject to a three-step process:
“(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.” Williams, 295 Kan. 506, Syl. ¶ 1.
We then held:
“K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court’s giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that 2 party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court. Williams, 295 Kan. 506, Syl. ¶ 3.
The determination of whether the instruction is clearly erroneous employs a two-step process. First, “the reviewing court must . . . determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” Williams, 295 Kan. 506, Syl. ¶ 4. The second step applies only if it is determined there was error. Under the second step, “the court assesses whether it is firmly convinced that the juiy would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains tire burden to establish the degree of prejudice necessary for reversal.” Williams, 295 Kan. 506, Syl. ¶ 5.
The Accomplice Instruction—Legally and Factually Appropriate
We first consider the step of whether an accomplice instruction was legally and factually appropriate. In past cases, despite the differences between an accomplice and a coconspirator, we have approved the use of the pattern accomplice instruction in conspiracy trials. And we have concluded that “[wjhen an accomplice testifies, and whether that testimony is corroborated or not, the better practice is for the trial court to give a cautionary instruction. If the instruction is requested and is not given, the result may be error.” State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981); see PIK Crim. 3d 52.18, Notes on Use (better practice is to give this cautionary instruction regardless of whether there is corroborating evidence, as long as the accomplice is not also a codefendant in the trial).
Whether the instruction should be given naturally depends on whether the witness is an accomplice. State v. Simmons, 282 Kan. 728, 734, 148 P.3d 525 (2006). In Simmons we explained that “ ‘[a] person is an “accomplice” of another in committing a crime if, with the intent to promote or facilitate the commission of the crime, he solicits, requests, or commands the other person to commit it, or aids the other person in planning or committing it.’ ” Simmons, 282 Kan. at 737 (quoting 1 Torcia, Wharton’s Criminal Law § 38, p. 220 [15th ed. 1993]). Garcia’s admitted role as the driver and lookout clearly places him in the role of accomplice, and the evidence from Garcia’s initial statement in which he claimed that Fraire participated in tire burglary of the garage supports the conclusion Fraire was an accomplice as well. We, therefore, conclude the accomplice instruction was legally and factually appropriate under tire facts of this case.
Harmless Error
In past cases, in determining whether the failure to give an accomplice instruction was reversible error, we have examined the extent and importance of an accomplice’s testimony, as well as any corroborating testimony. State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995); Moore, 229 Kan. at 80-81. We have also held:
“[N]o reversible error occurs due to a trial court’s failure to give a cautionaiy accomplice witness instruction if a witness’ testimony is corroborated by other evidence and the witness’ testimony does not provide the sole basis for a resulting conviction. [Citations omitted.] ....
“Further, a failure to provide the jury with tire cautionary accomplice witness instruction of PIK Crim. 3d 52.18 is not error when the defendant’s guilt is plain or when the jury is cautioned about the weight to be accorded testimonial evidence in odier instructions. [Citation omitted.]” Simmons, 282 Kan. at 740.
In this case, while the accomplices’ testimony, specifically Garcia’s, was key to the State’s case, defense counsel effectively called into question both Garcia’s and Fraire’s veracity. Defense counsel elicited that Garcia and Fraire were initially charged with the same offenses as Tapia but were granted diversions. Defense counsel extensively cross-examined Garcia on the inconsistency between his statement to law enforcement officers, in which he incriminated both Tapia and Fraire as burglars, and his trial testimony, in which he stated that only Tapia exited the vehicle. In response, Garcia admitted that his statement to officers was “untruthful.” Both Garcia’s andFrake’s testimony was corroborated by testimony that the property stolen from the pickup truck and Mondgold’s garage were found in the vehicle in which Tapia was riding and in Tapia’s pockets. Further, Tapia was the one identified as wearing clothes matching those worn by the burglar, and Parr saw him wearing baseball gloves. Also, the district court provided the jury with the general instruction on witness credibility. Finally, there was overwhelming evidence of Tapia’s guilt.
Considered in this light, we are not firmly convinced that the cautionary accomplice instruction would have made a difference in the jury’s verdict.
Apprendi and Ivory—Use of Criminal History
Tapia also contends the use of his prior convictions in his criminal history score to enhance his sentences without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt violated his constitutional rights under Apprendi v. Neto Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Tapia acknowledges that this court has previously rejected this argument. See, e.g., State v. Bennington, 293 Kan. 503, 534, 264 P.3d 440 (2011) (citing State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 [2002]). The Court of Appeals correctly rejected Tapia’s contention. Tapia, 42 Kan. App. 2d at 623.
Aggravated Terms in Grid Boxes
Finally, Tapia argues his constitutional rights were violated when the district court sentenced him to the aggravated terms of incarceration within the applicable sentencing grid boxes for each of his convictions. Tapia acknowledges a line of decisions in which this court has rejected this argument, but he raises it to preserve federal review. Pie does not offer a persuasive reason for us to abandon our prior decisions, which require us to hold that this court is without jurisdiction to consider this issue because Tapia received presumptive sentences. See K.S.A. 21-4721(c)(l); State v. Bogguess, 293 Kan. 743, 755, 268 P.3d 481 (2012); State v. Johnson, 286 Kan. 824, 840-52, 190 P.3d 207 (2008); see also State v. Huerta, 291 Kan. 831, 839-40, 247 P.3d 1043 (2011) (reaffirming that appellate court does not review claims on direct appeal that defendant’s presumptive sentence has a constitutionally based infirmity).
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Moritz, J., not participating.
Thomas H. Sachse, District Judge, assigned.
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The opinion of the court was delivered by
Biles, J.:
Kody Bicknell seeks our review of a Court of Appeals decision permitting Tammy Adamson to pursue punitive damages in her lawsuit against him after Bicknell rear-ended Adamson’s vehicle at a train crossing. The punitive damages claim was based, in part, on BicknelTs positive screening in a postcollision test for marijuana and cocaine, on his admission that he was smoking marijuana approximately 4 hours before the collision, and on a significant quantity of marijuana discovered in BicknelTs vehicle. He later acknowledged his drug consumption contributed to the collision. Bicknell also appeals from the panel’s decision permitting Adamson to submit medical bill write-offs to the jury.
A majority of this court agrees with the panel’s decision that the district court set a higher burden of proof for the punitive damages claim than statutorily necessary by requiring that Adamson provide what would amount to scientific evidence of BicknelTs impairment resulting from his admitted consumption of drugs. But the majority also holds that tire panel erred in deciding that the district court should have permitted Adamson to amend for punitive damages based on tire evidence as the panel perceived it. Such a holding evokes a fact-finding function on tire part of tire panel. See Sall v. T's, Inc., 281 Kan. 1355, 1362, 136 P.3d 471 (2006) (“The Court of Appeals sits not as a finder of fact but as an appellate court.”). The case is remanded to the district court for rehearing on that issue and application of tire proper legal standard. A minority of this court agrees witír the district court’s ruling. On the medical bill write-off question, we unanimously hold that the Court of Appeals erred in reaching tire merits because the issue was not preserved for appeal.
Factual and Procedural Background
In July 2003, Bicknell rear-ended Adamson’s car as she waited in traffic at a railroad crossing. Just before impact, Adamson saw Bicknell’s truck quickly approaching from behind. She unsuccessfully attempted to move her vehicle to avoid the collision. Adam-son’s car was struck and in a chain reaction collided into another vehicle stopped in front of her. Adamson checked herself into a hospital that evening complaining of a stiff neck, shoulder, and back. Adamson eventually underwent several surgeries and physical therapy.
The Kansas Highway Patrol trooper investigating the accident testified in a discovery deposition that he smelled alcohol and both burned and raw marijuana coming from Bicknell’s vehicle. A marijuana pipe, 19 bags of marijuana, empty cans of alcoholic beverages, prescription bottles under Bicknell’s name, and a digital scale with residue were found inside Bicknell’s truck. Bicknell told the trooper the accident was his fault. The trooper later testified that he believed the collision occurred because Bicknell “fail[ed] to give full time and attention to the roadway.” The trooper also said he believed drug use may have contributed to the accident by causing Bicknell to have a diminished ability to perform tasks and a hampered and divided attention level.
Bicknell was taken to a hospital for urine and blood testing in accordance with protocol for a crash of such severity and because drugs were found in his vehicle. He tested negative for alcohol, but positive for both marijuana and cocaine. Bicknell was subsequently charged with multiple drug offenses. He ultimately entered a 12-month diversion agreement for driving under the influence, in which he stipulated that on the day of the crash, he operated his vehicle while under the influence of alcohol or drugs and tested positive for marijuana and cocaine.
District Court Proceedings: Punitive Damages
Adamson sued Bicknell for her personal injuries caused by his negligence in operating his motor vehicle by failing to keep a proper lookout; driving too fast for the existing road conditions; following too closely to other vehicles; failing to stop, sweive, or otherwise take action to avoid colliding with Adamson; and driving “under the influence.” As permitted by statute and based upon the litigation s discovery record, Adamson filed a motion to amend her claims to add punitive damages, alleging there was sufficient evidence of wanton conduct based on Bicknell’s impairment to prevail on a punitive damages claim. See K.S.A. 60-3703 (detailing procedure for adding punitive damages to a tort claim).
Adamson supported the punitive damages motion with the following: (1) Bicknell’s deposition testimony in which he said he had not been paying attention to traffic and that his attention was diverted from the roadway as he approached the train stop; (2) Bick-nell’s admission he smoked marijuana earlier that same day; (3) his response when asked whether the marijuana impaired him, in which he replied, “At the time I definitely would have said no, that it did not impair me. But now looking back at it, and not doing that stuff for a long time, I’m sure it did have some affect with why I got in the wreck”; (4) the collision’s occurrence on a clear afternoon with no obstructions interfering with Bicknell’s view; (5) the discovery in Bicknell’s vehicle of several baggies of marijuana, a marijuana pipe, a digital scale, and empty alcoholic beverage containers; (6) testimony from Bicknell’s passenger that the drugs in the vehicle belonged to Bicknell; (7) the passenger’s testimony that he did not smell marijuana when he entered Bicknell’s vehicle earlier that day; (8) the trooper’s testimony about smelling burnt and raw marijuana after the collision; and (9) the force and circumstances of the collision.
Adamson argued Bicknell’s marijuana use that day impaired his ability to focus and pay attention to the roadway and that at the time of the accident Bicknell was driving in an impaired state from alcohol and marijuana. Adamson further argued it was reasonable to assume Bicknell was “deeply” involved in marijuana based on the amount of it located in his vehicle and that he knew the effects and chose to drive in an impaired state in a “callous disregard for the consequences.”
In Bicknell’s response, he claimed the trooper’s accident report never mentioned Bicknell was impaired or intoxicated, although a review of the report shows it indicated illegal drugs were present at the scene and contributed to the crash. Bicknell also noted there was no mention in the report that the trooper smelled alcohol or burnt or raw marijuana when approaching the vehicle and that there was no evidence Bicknell was smoking marijuana while driving.
Bicknell argued that Adamson failed to demonstrate that drug impairment was the proximate cause of the crash because there was no evidence quantifying the amount of marijuana or cocaine in BicknelTs system, how long either drug had been in his system, or that a positive drug screen resulted in an impaired driver. The KBI lab toxicology report noted a positive screening for marijuana and cocaine, but not the amount or level of drugs detected.
The district court denied Adamson’s motion to add a punitive damages claim. It acknowledged there was evidence of drugs but found that evidence did not conclusively show Bicknell was under the influence or, if he was, the extent that it would have contributed to the crash. The district court noted the trooper testified only that he smelled “burnt” marijuana, not “burning” marijuana, and did not check to see if the marijuana pipe found in BicknelTs vehicle was warm, which might indicate recent use. The court also noted the trooper said Bicknell appeared alert and oriented at the scene. The court also found that while the trooper showed marijuana was in the vehicle, there was no evidence that Bicknell was under the influence of it.
The district court further found that a rational fact-finder would consider BicknelTs admission in his diversion agreement with a “jaundiced eye” because he might have entered the agreement simply to avoid prosecution on other charges. In addition, the court said BicknelTs “admission” that smoking marijuana played a role in the accident came after Bicknell attended counseling, was drug-free, and understood the impairing effects of drugs. To the district court, BicknelTs admissions fell short of the quality necessary to constitute clear and convincing evidence. The district court then stated:
“[T]he court concludes that plaintiff can establish that defendant smoked marijuana approximately four hours before the accident and that defendant’s urine tested positive for marijuana and cocaine. Plaintiff has presented nothing ofevi- dentiary value to quantify the amount of marijuana or cocaine in defendant’s system at the time of the accident, nor anything of evidentiary value to demonstrate that the quantity of drugs in defendant’s system was sufficient to affect defendant’s ability to operate a motor vehicle.” (Emphasis added.)
Based on these perceived gaps in the evidence, tire district court held it unlikely that Adamson could prove by clear and convincing evidence that Bicknell was under the influence of drugs to such a degree that operating a vehicle constituted willful or wanton conduct and, accordingly, denied her motion.
In response to the ruling, Adamson filed a motion for reconsideration, attaching an affidavit from a witness who claimed to have seen Bicknell driving at a high rate of speed in an “erratic” manner just before the collision. But the district court again denied Ad-amson’s motion, holding that while such erratic driving is consistent with a DUI, it is also consistent with simple negligence. The court also discounted a new report written by a KBI toxicologist, stating that the effects of cocaine can last from minutes to hours while the effects of marijuana can last from 2-24 hours. The court said this information only confirmed its previous decision and again held there was insufficient evidence to afford a trier of fact clear and convincing evidence the accident was caused because Bicknell was under the influence.
District Couri Proceedings: Medical Bill Write-offs
Bicknell filed a pretrial motion in limine seeking to restrict Ad-amson’s medical bills evidence to only the amount paid by Medicaid and to exclude any portion billed that was eventually written-off by the hospital or not submitted by health care providers. Adamson argued she should be permitted to submit all outstanding or written-off medical bills, which totaled $42,579.34. Adamson claimed those write-offs were not subject to analysis under Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996), a case in which the Court of Appeals held that there is an exception to the collateral source rule for write-offs made by providers under reimbursement agreements with Medicaid. Included in the amounts Adamson claimed was a $3,879.65 in-network or hospital write-off, a $2,823.85 bad debt write-off, and a $6,097.30 commercial adjustment. An authentic bill of the total amount charged and paid is not in the record, although the parties provide various documents made in preparation for trial purportedly reflecting the total medical bills.
In ruling on the motion, the district court allowed Adamson to present “sanitized” versions of what Medicaid paid in the amount of $23,016.13. The district court also said it would allow Adamson to put into evidence $4,781 paid by personal injury protection insurance (PIP), and $187.09 in out-of-pocket expenses, for a total of $27,984.23. The court said it would not allow any hospital or insurance write-offs because Adamson had Medicaid available to her.
To comply with the order, the parties stipulated to an exhibit in which they agreed that the reasonable amount of medical expenses totaled $26,346.21. The jury awarded Adamson $23,600, including $11,100 for medical expenses to date; $7,500 for economic loss to date; and $5,500 for noneconomic loss to date. There was no award for future noneconomic loss.
In a posttrial hearing on her motion for new trial, Adamson for the first time asked the district court to overturn Bates. In doing so, Adamson argued it was “baloney” to prohibit her from submitting anything more than just a fraction of total medical cost. She contended the better method would have been for the court to allow her to submit the entire bill and let the court cut out certain write-offs and reduce the total afterwards. This method, Adamson claimed, would have helped prevent juiy confusion about why the stipulated amount of $26,346.21 was so low in comparison with the testimony reflecting much more extensive medical treatment. The district court denied Adamson’s motion, saying it was bound by Bates.
Court of Appeals Decision
On appeal, the Court of Appeals reversed the trial court’s denial of Adamson’s motion seeking punitive damages. Adamson v. Bicknell, 41 Kan. App. 2d 958, 207 P.3d 265 (2009), rev. granted March 31, 2010. That court summarized the district court’s ruling as follows:
“[T]he district court determined that Adamson failed to establish tire precise amount of marijuana and cocaine in Bicknell’s system at the time of the accident and that, without evidence to quantify the presence of drugs, it was unlikely Ad-amson would be able to prove by clear and convincing evidence at trial that Bicknell acted wantonly. [Citations omitted.]” 41 Kan. App. 2d at 966.
The panel held that the district court abused its discretion because a reasonable factfinder could determine by clear and convincing evidence that Bicknell’s conduct was wanton. The court said there was “simply no dispute” that Bicknell was under the influence, regardless of the extent of that impairment. The court held that whether wanton conduct existed was not premised on the amount of drugs in Bicknell’s system, but on Bicknell’s choice to drive under circumstances that would likely cause a collision. The panel relied on Reeves v. Carlson, 266 Kan. 310, 313-16, 969 P.2d 252 (1998), in which this court previously discussed “wanton conduct” in a case involving a driver who crashed into the plaintiffs house while driving under the influence of alcohol, stating: “Wantonness refers to the mental attitude of the wrongdoer rather than a particular act of negligence.” 266 Kan. at 314. The panel then concluded:
“[W]e do not believe that a lack of evidence regarding intoxication beyond the legal limit and/or the precise quantity of marijuana and cocaine in Bicknell’s system at the time of the accident is fatal to Adamson’s claim that Bicknell was completely indifferent to the probable consequences of his actions. Wanton conduct is not premised on the existence of a minimum level of intoxication or quantity of drugs in the system. In fact, finding that the drugs ingested by Bicknell did or did not cause Bicknell to crash into Adamson’s vehicle is immaterial to our analysis of whedier Bicknell engaged in wanton behavior. The ‘wanton conduct’ giving rise to die claim for punitive damages ‘was not the collision, but [Bicknell’s] choice to drive under die circumstances that would likely or probably result in a collision.’ ” Adamson, 41 Kan. App. 2d at 966 (citing Reeves, 266 Kan. at 314-15).
On the medical bill write-off issue, the Court of Appeals held that the district court erred in not admitting the $2,823.85 “bad debt” write-off, because it was self-paid by Adamson, and the $6,097.30 “commercial adjustment” write-off. But it did uphold tire exclusion of one write-off amounting to $3,879.65 after finding it was related to Medicaid. Adamson, 41 Kan. App. 2d at 970-71.
Bicknell filed a timely petition for review raising two issues. First, he argued the Court of Appeals expanded the definition of “wanton conduct” in the punitive damages context “to include every incidence of driving under the influence of drugs or alcohol.” He claimed the Court of Appeals failed to address the evidence— or lack thereof—regarding Bicknelfs mental state before the crash and that Adamson also failed to demonstrate that Bicknell was aware of his impairment at the time of the crash and drove anyway. Second, Bicknell argued that the panel should have followed Bates on the medical write-off evidence and erred in finding that Ad-amson could submit her additional medical expenses even though she was a covered Medicaid recipient. We granted review on both issues. Our jurisdiction arises under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Punitive Damages
Bicknell first argues that the district court correctly denied Ad-amson’s punitive damages claim and the Court of Appeals erred in reversing it. He argues Adamson is not entitled to a new trial on punitive damages as ordered by the panel.
Standard of Review
K.S.A. 60-3703 provides a district court with discretion to permit an amendment for punitive damages. This triggers appellate court review of a district court’s ruling under an abuse of discretion standard. Lindsey v. Miami County National Bank, 267 Kan. 685, 689, 984 P.2d 719 (1999).
Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012); see also Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995) (abuse of discretion considered in punitive damages case).
Discussion
Punitive damages are awarded to punish the wrongdoer for “malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from tire commission of similar wrongs.” Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 366, 837 P.2d 330 (1992) (citing Folks v. Kansas Power & Light Co., 243 Kan. 57, Syl. ¶ 6, 755 P.2d 1319 [1988]). Punitive damages are awarded on the theory that tire defendant deserves punishment for his or her wrongful acts. Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 1324, 136 P.3d 428 (2006).
K.S.A. 60-3703 controls a plaintiffs ability to pursue punitive damages by requiring that tire district court act as a gatekeeper to determine what claims may be filed based on the statutory criteria. The statute provides that a trial court may permit a punitive damages claim to go forward if tire plaintiff establishes “that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209.” K.S.A. 60-3703. The term “probability” means “more likely than not.” Fusaro, 257 Kan. at 801.
And while the ultimate inquiry is whether the plaintiff will probably prevail on the claim, the court must consider the “clear and convincing” evidentiary standard the plaintiff will eventually need to meet at trial. 257 Kan. at 801-02. This standard is set by K.S.A. 60-3702(c), which provides that a plaintiff must prove by clear and convincing evidence that the defendant acted toward tire plaintiff with “ ‘willful conduct, wanton conduct, fraud, or malice.’ ” In making this determination, the district court must consider the evidence in the light most favorable to tire moving party, but it cannot make credibility determinations, weigh evidence, or draw inferences from the facts, as those are left to the jury. Lindsey, 267 Kan. at 689; Fusaro, 257 Kan. at 802.
In this case, the district court framed the question as whether it was likely Adamson could prove by clear and convincing evidence that Bicknell was under the influence of drugs to such a degree that Bicknell’s operation of his vehicle at the time of the collision constituted willful or wanton conduct. It held it unlikely Adamson could meet that standard and said that a rational factfinder could not conclude: (1) “the defendant was smoking marijuana (or cocaine) while he was operating his vehicle”; (2) the defendant had smoked marijuana less than 4 hours before the accident; or (3) the marijuana smoked 4 hours prior to the accident was sufficient to affect defendant’s ability to safely operate his vehicle. Although it acknowledged Adamson could establish Bicknell tested positive for marijuana and cocaine, the court required Adamson to further establish a scientific basis to “quantify” the amount of drugs in Bick-nell’s system and “demonstrate that tire quantity of drugs in defendant’s system was sufficient to affect defendant’s ability to operate a motor vehicle.” In short, the district court was looking for evidence that the drug use caused the accident. This analysis sets the bar too high.
To the district court, the absence of scientific evidence establishing Bicknell’s degree of impairment meant that no reasonable jury could find Adamson was entitled to punitive damages. But the inquiry should have focused on the act Bicknell allegedly performed, i.e., his choice to drive under circumstances that would likely cause a collision. Thus, this court holds that the district court abused its discretion by focusing so narrowly on the evidence of drug impairment levels. As we said in Reeves:
“One who with knowledge of existing conditions and aware from such knowledge that injury or death will likely or probably result from his or her conduct, and with reckless indifference to the consequences, consciously does some act or omits to discharge some duty, which produces the injurious result, is guilty of willful or wanton conduct.” Reeves, 266 Kan. at 315.
The evidence as framed by Adamson in support of her request to amend for punitive damages required the district court to consider whether Bicknell realized the imminence of injury to others and refrained from taking steps to prevent that injury because of indifference to the ultimate outcome that resulted based upon that evidence. The district court applied the incorrect legal standard and its abuse of discretion was based on an error of law, i.e., the discretion was guided by an erroneous legal conclusion.
Establishing wanton conduct is a two-step process. First, a plaintiff must show that the act was “performed with a realization of the imminence of danger,” and, second, that the act was performed with “reckless disregard or complete indifference to the probable consequences of the act.” Reeves, 266 Kan. 310 Syl. ¶¶ 3,4. “Wantonness refers to the mental attitude of the wrongdoer rather than a particular act of negligence.” Reeves, 266 Kan. at 314; see also Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237, 1244-45 (10th Cir. 2009) (discussing Reeve’s two-pronged test). The plaintiff does not need to prove intent to injure. Reeves, 266 Kan. at 314.
On a sliding scale, wanton behavior falls between negligent behavior and willful or malicious misconduct. Wanton acts are those showing that the defendant realized the imminence of injury to others and refrained from taking steps to prevent injury because of indifference to the ultimate outcome, not that the defendant lacked simple due care. In other words, “the actor [must] have reason to believe his act may injure another, and [cdmmits the act anyway,] being indifferent to whether of not it injures [another].” (Emphasis added.) Frazier v. Cities Service Oil Co., 159 Kan. 655, 666, 157 P.2d 822 (1945); see also Elliott v. Peters, 163 Kan. 631, 634, 185 P.2d 139 (1947) (“[W]antonness involves a state of mind indicating indifference to known circumstances. . . . There is a potent element of consciousness of danger in wantonness.”).
This court has found wanton conduct in several prior cases. In Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993), this court affirmed the district court’s decision to submit tlie plaintiff s claim of wantonness to the júry after the defendant collided with an oncoming car, wrecking his moving bompany’s van, and killing two people. The defendant had numerous log violations, and there were significant discrepancies in tlie defendant’s testimony about his activity the day of the accident, such as what time he left his beginning location and what time he delivered furniture. Moreover, the defendant acknowledged that he knew it was reckless if he worked 17-18 hour days, yet he worked nearly that amount on the day of the accident. The defendant also admitted that his trailer began to fishtail just before the accident due to slick roads, but he did not reduce his speed even though he knew he was losing control. Under those circumstances, this court held that the definition of wantonness had been met. 254 Kan. at 358-59.
This court also upheld a jury’s punitive damages award based on the defendant’s wanton conduct when he drove while intoxicated, ran a stop sign, and hit the plaintiffs house. See Reeves, 266 Kan. at 314-16. On appeal, the defendant argued that there was insufficient evidence to support the jury’s finding that he acted with willful or wanton conduct, fraud, or malice. The Reeves court held: “The keys to a finding of wantonness are the knowledge of a dangerous condition and indifference to the consequences.” 266 Kan. at 314. It held the defendant’s knowledge of the dangerous condition was clearly established, stating:
“[The defendant] acknowledges he was acutely aware of the risk he was taking when he decided to drive his employer’s pickup truck in his extremely intoxicated state at night on wet residential streets. Clearly by [the defendant’s] own admission, there is sufficient evidence to support the trier of facts’ finding that Carlson acted recklessly and possessed the requisite degree of knowledge of danger.” 266 Kan. at 314.
But even with this, the defendant argued the wantonness standard was still not met. He claimed that even though he had admitted to realizing the risk of driving impaired, he was not indifferent to that risk because he claimed he drove as carefully as possible and tried to brake to avoid the collision. In addressing this argument, the Reeves court noted the defendant’s argument focused on the wrong conduct. Punitive damages, we held, were assessed based on tire defendant’s wanton conduct of choosing to drive under circumstances that would likely or probably result in a collision, not on the collision itself. The defendant’s “precautions and care . . . did little, if anything, to reduce that risk.” 266 Kan. at 315.
The Reeves court concluded that the measures the defendant took were “predictably insufficient” to reduce the obvious risk and the “minimal care under the circumstances was that [the defendant] not drive.” 266 Kan. at 315. Since the defendant admitted he realized the dangers involved in driving and the court had found the defendant was indifferent to the probable consequences, this court affirmed the jury’s finding of wanton conduct. 266 Kan. at 315-16.
The Court of Appeals in this case cited Reeves when concluding that the district court should have submitted Adamson’s punitive damages claim to the jury. But the panel focused solely on the second step in the analysis—the Reeves court’s examination of whether that defendant behaved indifferently. The panel quoted Reeves as establishing that the conduct at issue was Bicknell’s choice to drive under circumstances likely to result in a collision. Adamson, 41 Kan. App. 2d at 966-67. The panel then concluded that the evidence sufficiently established that Bicknell “recklessly disregarded the likely result of his conduct.” 41 Kan. App. 2d at 967. The Court of Appeals, however, failed to address the first question, i.e., whether Bicknell knew the risk and drove “with knowledge of a dangerous condition.” See Reeves, 266 Kan. at 314-16.
Certainly, the facts in this case are similar to Reeves because Bicknell drove after consuming marijuana and cocaine and later admitted his drug use affected his driving. But the evidence regarding knowledge of the risk at the time Bicknell drove is different. And on this point, Reeves offers no helpful analysis because the defendant in that case “acknowledge[ed] he was acutely aware of the risk he was taking.” 266 Kan. at 314. In contrast, Bicknell testified “[a]t the time I definitely would have said no, that it did not impair me. But now looking back at it, and not doing that stuff for a long time, I’m sure it did have some affect with why I got in the wreck.”
Obviously, the court must consider all the evidence cited by Adamson in her motions seeking punitive damages, not just Bick-nell’s testimony. But the evidence of Bicknell’s knowledge of his impairment presents a closer question than the Court of Appeals acknowledged, and it should not have made the findings reserved to the district court. For that reason, we remand to the district court for a rehearing on Adamson’s motion seeking punitive damages because factual findings must still be made.
On rehearing, the district court should consider the same evidence cited by Adamson in her original motion and the motion for reconsideration. In summary, this evidence includes the deposition testimony that the crash occurred on a clear day, Bickneirs apparent inability to control his vehicle to avoid rear-ending Adamson’s car, his on-scene admission to the trooper that the accident was his fault, the medical test results indicating that both marijuana and cocaine were present in Bicknell’s system at the time of the accident, and the investigating trooper’s conclusion that drugs contributed to the crash and his report that drugs were found in Bick-nell’s vehicle. The district court should also consider BickneU’s postcrash deposition testimony, which includes his statement that only in retrospect did he believe his driving under the influence contributed to the crash. Finally, the district court should consider Bicknell’s admission that his eyes were off the road before the crash, that he saw Adamson’s car “quite a ways” ahead, and that eyewitnesses observed him driving at a high rate of speed and zigzagging in and out of traffic before the accident.
Collateral Source
It is unnecessary to delve too deeply into this issue because it is not preserved for appeal.
Adamson effectively challenged only the difference between her original request to admit $42,579.34 and the $23,600 awarded by the jury. In doing so, she acquiesced to the amount of reasonable medical expenses as the amount paid, waiving her right to argue on appeal that evidence of the amount written-off was also admissible. Going into trial, Adamson accepted Bates as controlling admissibility of her Medicaid insurance.
More importantly, Adamson stipulated through the admission of a prepared trial exhibit that her reasonable medical expenses were $26,346.21. At trial, Adamson’s attorney said the parties jointly agreed to the exhibit in order to assist the jury and to avoid going through all the medical bills. Adamson’s attorney said, “The parties have agreed that the amounts set out by the various providers are the reasonable and customary charge for the services for which plaintiff claims were incurred as a result of this automobile accident.”
Adamson was required under K.S.A. 60-404 to timely interpose on the record a clear and specific objection in order to preserve the issue for appeal. See State v. Flynn, 274 Kan. 473, 496, 55 P.3d 324 (2002). It was not enough under the statute for Adamson to have challenged the issue by a motion in limine because an objection must be made at trial. And when the issue was raised at trial and the court said it would not allow Adamson to admit all her medical expenses, Adamson did not object. In addition, when the court finished explaining its ruling that Adamson could show what Medicaid paid as well as PIP and out-of-pocket expenses, it asked if the parties were ready to proceed with trial—Adamson’s attorney replied yes, and again no objection was made. The Court of Appeals erroneously considered the issue. Accordingly, its decision on this point is reversed and the district court’s original ruling is affirmed.
The Court of Appeals decision is affirmed in part and reversed in part. The district court’s decision is affirmed in part and reversed in part, and the case is remanded with directions to the district court for further proceedings.
Moritz, J., not participating.
Daniel L. Mitchell, District Judge, assigned.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by the defendant from her conviction of aggravated robbery (K.S.A. 21-3427) by a Reno County jury. Two issues are raised on appeal: whether the trial court erred in excluding expert testimony on eyewitness identification and in failing to question a juror concerning her ability to serve on the jury panel.
At approximately 11:50 p.m. on September 20, 1984, a woman entered a Kwik Shop at 17th and Lorraine in Hutchinson, Kansas. She looked at the clock, looked around the store, and eventually bought some Salem Light cigarettes. Kimberly Danowitz, the clerk who waited on this woman, described her to police as a short, heavyset, black female with short hair, wearing a shirt with a marijuana leaf on it.
At approximately 3:05 a.m., on September 21, 1984, the defendant was seen at the Stop ‘N Shop at “A” and Adams. Patricia Herzfeld, the clerk on duty, knew the defendant because the defendant shopped there often. She stated the defendant was wearing a short-sleeved royal blue sweat shirt, grey sweat pants, and grey tennis shoes, and didn’t appear to be drunk or ill. The defendant asked about breakfast food but decided to buy it elsewhere and left.
At approximately 3:20 a.m. that same morning, a lady entered the front door of the Stop ‘N Shop at 30th and Plum just as the clerk, Carol Stout, was coming from the back room. The lady purchased a package of Kool cigarettes, and when Ms. Stout turned around to give the customer her change, there was a gun pointing at Ms. Stout’s stomach. After Ms. Stout gave her approximately $150, the robber ordered Ms. Stout from behind the counter, held the gun to her back, walked her to the bathroom, and ordered her to remain inside. She remained in the bathroom ten minutes and then called the police. When the police arrived, Ms. Stout described the robber as a black female, between 36 to 42 years old standing 4’9” to 4T0”, weighing 180-200 pounds with short hair, very large eyes and wearing a blue short-sleeved T-shirt, grey sweat pants, and tennis shoes. Several hours later, Detective Loren Smith attempted to make a composite picture from Ms. Stout’s description of the robber. Ms. Stout was not pleased with the outcome of the composite, stating the eyes were not right, so Detective Loren showed her a series of photographs. Prior to showing her the photographs, the detective cautioned her that the photographs may have been taken years ago and to allow for age or glasses. The first group contained six photographs of black females, not including the defendant, all wearing glasses. Ms. Stout was shown a second group and selected the fourth picture, the defendant, as the robber. Later, at trial, Ms. Stout made a positive in-court identification of the defendant as the robber.
The defendant is a black woman, 40 years of age, approximately 5’5” tall and weighs 180 pounds. A search of her apartment revealed no gun or money. However, at the time the defendant’s apartment was searched, the defendant was wearing a blue sweat shirt with a marijuana leaf on the front and a pair of grey sweat pants. These pieces of clothing were recovered from the defendant and, at trial, when asked whether they could identify the sweat shirt, Ms. Danowitz recognized it as the one the defendant was wearing; Ms. Herzfeld recognized the sweat pants as those the defendant was wearing but felt the sweat shirt was too short in length; and Ms. Stout stated the color of the sweat shirt looked familiar but the marijuana leaf design did not. However, when the sweat shirt was turned inside out, it looked more familiar to her, as she remembered the rough-edged shoulder seams.
A friend of the defendant’s, Irene Hubbs, testified that she and the defendant had moved clothes to the defendant’s house around midnight. Ms. Hubbs then left. The defendant testified she then stayed at home with her nephew, drinking and playing dominos for almost two hours. They stopped playing dominos around 2:30 a.m., at which time the defendant went to the Stop ‘N Shop at “A” and Adams for cigarettes. When Ms. Hubbs let herself into the house, at approximately 4:00 a.m., the defendant had returned home and was in the bathroom sick from drinking. Ms. Hubbs then helped the defendant into bed.
The defendant was charged and convicted of aggravated robbery and sentenced to from eight to twenty years. She brings this direct appeal.
The first issue asserted on appeal is that the defendant was denied her Sixth Amendment right under the federal Constitution to obtain witnesses in her favor when the district court ruled that expert testimony concerning eyewitness identification was inadmissible.
Prior to trial, defense counsel filed a motion requesting $2,000 in funds to hire an expert, Dr. Geoffrey R. Loftus, to testify on eyewitness identification. Defense counsel also sought a ruling on the admissibility of that evidence. At a hearing on that motion, defense counsel stated the expert testimony would be offered to explain the factors concerning the accuracy of eyewitness identification when a person is under stress and when there is a cross-racial identification, and the testimony would not be offered to tell the jury whether an eyewitness is right or wrong. The district court ruled the testimony was inadmissible pursuant to State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), and denied the defendant’s request for funds.
In State v. Warren, 230 Kan. 385, this court ruled the potential problems of mistaken identification by an eyewitness would be better solved by cautionary jury instructions, rather than admit ting into evidence expert testimony on the scientific and psychological aspects of eyewitness identification. This court held a cautionary instruction should be given advising the jury of factors to consider in weighing the credibility of the eyewitness identification testimony when two conditions are met: (1) the eyewitness identification is a critical part of the prosecution’s case, and (2) there is a serious question regarding the reliability of the identification. 230 Kan. at 397. PIK Crim. 2d 52.20 embodies the cautionary instruction and sets forth the factors which could affect the accuracy of the identification made by an eyewitness:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting.
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence.
“3. Whether the witness had observed the defendants] on earlier occasions.
“4. Whether a significant amount of time elapsed between the crime charged and any later identification.
“5. Whether the witness ever failed to identify the defendantfs] or made any inconsistent identification. .
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.”
A cautionary Warren instruction was given in the instant case.
The defendant in State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982), made a similar argument to this court as the defendant makes today: the district court’s refusal to order funds for the hiring of an eyewitness identification expert violated his due process rights by denying him the right to prepare his defense adequately. Based upon Warren, we found the expert testimony on the subject of eyewitness identification was inadmissible. 230 Kan. at 534. In response to the argument that a cross-racial identification was made by an eyewitness under stress at the time of the incident, we recognized those factors were important but noted they could have been and were elicited during other testimony. 230 Kan. at 535. The district court was found not to have abused its discretion in refusing to authorize funds for the hiring of an expert on eyewitness identification.
The precise issue presented to this court is whether we are willing to now overrule Warren and Reynolds, and allow expert testimony on eyewitness identification.
The defendant asserts that (1) most studies in the area of eyewitness identification have been conducted since Warren, (2) there is a recent trend toward allowing such testimony, and (3) cross-examination of the eyewitness, closing argument, and cautionary jury instructions are not sufficiently curative of the problems surrounding eyewitness identification.
The defendant cites four state court decisions and three federal circuit court decisions which have recently allowed admitting into evidence expert testimony on the reliability of eyewitness identification. The Arizona Supreme Court in State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983), found the district court erred in refusing to allow Dr. Elizabeth Loftus to testify concerning factors which affect the accuracy of eyewitness identification. The defendant was apprehended and prosecuted on the basis of eyewitness identification made by two individuals, a brother and a sister, one year after the date of the crime. Soon after the crime the brother had pointed to a picture of a man named Logan, stating the man resembled one of the perpetrators. One of the photographic lineups also shown to the brother contained the defendant’s picture, but the defendant was not then identified. One year later, the brother was shown a photographic lineup which contained the defendant’s picture and a codefendant’s picture previously identified, but no picture of Logan. The brother identified the defendant as the perpetrator as did the sister separately. The Arizona court stated it would not assume that ordinary jurors would be aware of the impact of the factors on eyewitness identification proffered by Dr. Loftus: (1) the “forgetting curve” (forgetting occurs very quickly and then levels off, therefore, a prompt identification is more trustworthy than a delayed identification); (2) problems of “unconscious transfer” (where a witness confuses a person seen in one situation with a person seen in a different situation); (3) the confidence expressed by the eyewitness has no relationship to the accuracy of the identification; (4) post-event information is frequently incorporated into identifications; and, (5) the “feedback factor” (through discussions with other witnesses, the eyewitness can reinforce his or her individual identification). In ruling that the testimony of Dr. Loftus was admissible, the court stated it was not opening the floodgates for expert evidence on the subject of eyewitness identification, but was allowing it under the peculiar facts before it. Cases subsequent to Chappie illustrate that the decision to allow general testimony as to factors affecting eyewitness identification is within the sound discretion of the trial court and limit Chappie to the peculiar circumstances of the case, including the fact that the eyewitness identification was all that tied the defendant to the crime. State v. Via, 146 Ariz. 108, 704 P.2d238 (1985); State v. Rodriquez, 145 Ariz. 157, 700 P.2d 855 (1985); State v. Poland, 144 Ariz. 388, 698 P.2d 183 (1985).
The defendant cites United States v. Smith, 736 F.2d 1103 (6th Cir.), cert. denied 469 U.S. 868 (1984), where the defendant was charged with armed robbery of a bank. Three weeks after the robbery, the bank employees were shown a photographic lineup which included the defendant’s picture. None of the employees identified the defendant. Four months later, three employees identified the defendant in a lineup. The 6th Circuit ruled it was harmless error for the district court to exclude an expert’s testimony on eyewitness identification in light of the facts that three eyewitnesses identified the defendant and his palmprint was found at the bank.
The California Supreme Court, following Chappie, has ruled that the psychological factors affecting the accuracy of eyewitness identification were beyond common experience and expert testimony would assist the jury. People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 721 (1984). The defendant in McDonald was convicted of murdering a restaurant worker on payday at a busy intersection in downtown Long Beach, California. With varying degrees of certainty, seven eyewitnesses identified the defendant as the gunman; however, one eyewitness stated the defendant was not the gunman. Six witnesses for the defense testified the defendant was in another state on the date of the crime. The California court held expert testimony is allowed when:
“an eyewitness identification of the defendant is a key element of the prosecution’s case but is-not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury . . . .” 37 Cal. 3d at 377.
Based upon the above three cases the Third Circuit estab lished a two-part test for determining whether expert testimony on the accuracy of eyewitness identifications is admissible in United States v. Downing, 753 F.2d 1224 (3d Cir. 1985). First, in an in limine proceeding, the evidence must survive a balancing test between two factors: the testimony’s potential to aid the jury and the likelihood it may mislead the jury. Second, a specific proffer must show that “scientific research has established that particular features of the eyewitness identifications involved may have impaired the accuracy of those identifications.” 753 F.2d at 1226.
A New York County Court followed Chapple, Smith, McDonald, and Downing in People v. Brooks, 128 Misc. 2d 608, 490 N.Y.S. 2d 692 (1985), where a defendant requested a ruling in limine on the admissibility of expert testimony on eyewitness identification. The New York court ruled the expert could take the stand as a live learned treatise where he would be called upon “to draw from all of the scientific studies the conclusion that certain factors are or are not relevant to determining the reliability of eyewitness identification testimony.” 128 Misc. 2d at 617.
In State v. Buell, 22 Ohio St. 3d 124, 489 N.E.2d 795 (1986), the Supreme Court of Ohio ruled that expert testimony concerning factors which may impair the accuracy of eyewitness identification is admissible. The court went on to rule, however, that the trial court did not abuse its discretion in excluding such testimony because the evidence against the defendant consisted primarily of physical evidence rather than eyewitness identification. 22 Ohio St. 3d at 133.
Finally, the defendant cites United States v. Moore, 786 F.2d 1308 (5th Cir. 1986), where the federal court recognized that the admission of expert testimony on eyewitness identification is proper in certain cases, but ruled that under the facts before it, the trial court did not err in excluding such testimony because the evidence against the defendant was overwhelming without considering the eyewitness identification testimony.
While there does seem to be a recent trend toward allowing the admissibility of expert testimony on eyewitness identification, the following cases upheld the trial courts’ denial of admissibility. United States v. Brewer, 783 F.2d 841 (9th Cir. 1986); United States v. Purham, 725 F.2d 450 (8th Cir. 1984); United States v. Thevis, 665 F.2d 616, reh. denied 671 F.2d 1379 (5th Cir. 1982); United States v. Sims, 617 F.2d 1371 (9th Cir. 1980); United States v. Fosher, 590 F.2d 381 (1st Cir. 1979); United States v. Watson, 587 F.2d 365 (7th Cir. 1978), cert. denied 439 U.S. 1132 (1979); United States v. Brown, 540 F.2d 1048 (10th Cir. 1976), cert. denied 429 U.S. 1100 (1977); United States v. Brown, 501 F.2d 146 (9th Cir. 1974); United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980); People v. Lawson, 37 Colo. App. 442, 551 P.2d 206 (1976); State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986); Taylor v. United States, 451 A.2d 859 (D.C. 1982), cert. denied 461 U.S. 936 (1983); Jackson v. United States, 420 A.2d 1202 (D.C. 1979); Dyas v. United States, 376 A.2d 827 (D.C.), cert. denied 434 U.S. 973 (1977); Johnson v. State, 438 So. 2d 774 (Fla. 1983), cert. denied 465 U.S. 1051 (1984); Nelson v. State, 362 So. 2d 1017 (Fla. Dist. App. 1978); Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974); Mitchell v. State, 176 Ga. App. 32, 335 S.E.2d 150 (1985); State v. Kay, 108 Idaho 661, 701 P.2d 281 (1985); State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983); People v. Clark, 124 Ill. App. 3d 14, 463 N.E.2d 981 (1984); People v. Brown, 100 Ill. App. 3d 57, 426 N.E.2d 575 (1981); People v. Dixon, 87 Ill. App. 3d 814, 410 N.E.2d 252 (1980); Pankey v. Commonwealth, 485 S.W.2d 513 (Ky. 1972); State v. Stucke, 419 So. 2d 939 (La. 1982); State v. Coleman, 486 So. 2d 995 (La. App. 1986); State v. Fernald, 397 A.2d 194 .(Me. 1979); Commonwealth v. Francis, 390 Mass. 89, 453 N.E.2d 1204 (1983); State v. Saxton, 331 N.W.2d 240 (Minn. 1983); State v. Helterbridle, 301 N.W.2d 545 (Minn. 1980); State v. Ammons, 208 Neb. 812, 305 N.W.2d 812 (1981); Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978); State v. Porraro, 121 R.I. 882, 404 A.2d 465 (1979); State v. Wooden, 658 S.W.2d 553 (Tenn. Crim. App. 1983); Welch v. State, 677 S.W.2d 562 (Tex. App. 1984); State v. Onorato, 142 Vt. 99, 453 A.2d 393 (1982).
The defendant argues most studies on the subject of eyewitness identification have been performed since the Warren decision in 1981. Whether or not that is true, we continue to believe that to allow expert testimony on the subject of the reliability of eyewitness testimony is not the answer to the problems surrounding eyewitness identifications. The cautionary instruction sets forth the factors for the jury to consider in evaluating the eyewitness’ testimony. The defendant argues these instructions do not explain to the jury how to use the factors, e.g., that threat of violence decreases the accuracy of the identification rather than increases its accuracy, as many laymen believe. Extensive cross-examination of the eyewitness and persuasive argument by defense counsel can highlight any inaccuracies which could result because the eyewitness was being threatened or was under stress. State v. Warren, 230 Kan. at 395. We find that even under Chappie, the trial court did not err in refusing to allow the expert testimony. Here the eyewitness identified the defendant from a photographic lineup within hours after the crime. Two other witnesses saw the defendant in their convenience stores within a three-hour period of the crime. The eyewitness stated the defendant was wearing a blue sweat shirt and grey sweat pants. When the defendant’s apartment was searched the defendant was wearing a blue sweat shirt and grey sweat pants. The trial court did not err in ruling the expert testimony on eyewitness identification was inadmissible.
Next the defendant argues the district court erred by failing to question a juror concerning her ability to serve on the jury panel. During lunch recess, right after voir dire, one of the jurors approached the defense counsel and asked how to be excused from the jury. Defense counsel told her to let the judge know her feelings. Defense counsel also reported the conversation to the court. The jury had been instructed by the court at orientation that if they had any problem they should contact the bailiff. The juror never contacted the bailiff or the judge. Defense counsel never objected to the juror remaining on the jury after their conversation until after the verdict was rendered. In a motion for a new trial, the defendant argued she was denied a trial by a fair and impartial jury due to the juror’s behavior.
The precise issue presented is whether the trial court has a duty to question a juror once defense counsel has informed the court that a juror inquired of defense counsel how to be excused from the jury and the juror is told to contact the court but fails to do so.
In both civil and criminal cases, juror misconduct is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The burden of proof is on the party claiming the prejudice. State v. Fenton, 228 Kan. 658, 664, 620 P.2d 813 (1980); State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113 (1976); State v. Arney, 218 Kan. 369, 371-72, 544 P.2d 334 (1975); Roy v. State, 213 Kan. 30, 32, 514 P.2d 832 (1973); State v. Duncan, 3 Kan. App. 2d 271, 275, 593 P.2d 427 (1979). Juror misconduct includes communications with jurors from outsiders, witnesses, bailiffs, or judges. State v. Fenton, 228 Kan. at 664.
In Kansas, a rule has been adopted that where alleged juror misconduct claimed as prejudicial is known by the party or his counsel before the verdict is rendered, and no objection is made nor is the matter brought to the court’s attention, the party cannot later assert the misconduct as grounds for a new trial. State v. Buggs, 219 Kan. 203, 207, 547 P.2d 720 (1976); Roy v. State, 213 Kan. at 32. The reasons for such a rule were stated in Buggs as follows:
“If the alleged misconduct is brought to the court’s attention a hearing may be held and the situation remedied, if that is possible. If not, a mistrial may be declared immediately without wasting the time and expense required to complete the trial. The rule is a corollary of the contemporaneous objection rule as to evidence (K.S.A. 60-404; State v. Estes, 216 Kan. 382, 532 P.2d 1283) and the requirement of an objection to erroneous instructions (K.S.A. 60-251[b]; Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211). A party is not permitted to remain silent in the face of known error, gamble on the verdict, and show his hole card only if he loses.” 219 Kan. at 208.
Here, all defense counsel did was inform the trial court of her brief conversation with the juror. When informing the trial court of the conversation, defense counsel never objected or argued that the juror could be inattentive, prejudiced, or biased due to her inquiry. During the trial, defense counsel never objected to the juror remaining on the jury, nor did she inquire of the trial court whether it had questioned the juror. After the verdict was rendered, in a motion for a new trial, defense counsel argued the juror should have been questioned by the court. Here, a failure to object to the court’s failure to question the juror forecloses the defendant’s right to appeal on this issue. See generally State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985).
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The opinion of the court was delivered by
Miller, J.:
This tax protest action involves but one principal issue: whether K.S.A. 79-1422 authorizes the imposition of a 50% penalty for late filing of a list of tangible personal property. Appellant is the taxpayer, National Cooperative Refinery Association, a corporation, which we shall refer to as the Co-op. Appellees are the County Clerk, County Treasurer, and Board of County Commissioners of McPherson County, Kansas, whom we shall refer to collectively as the County.
We will summarize the facts which were stipulated by the parties. The Co-op has a large oil refinery in McPherson County and it has extensive personal property and refining equipment located in that county and subject to taxation. K.S.A. 79-306 requires corporations, including the Co-op, to make and file a statement listing all tangible personal property and to deliver that list to the county assessor by April 1 of each year. The Co-op discovered, in early July, 1978, that it had not filed its listing of personal property for that year. About the same time, the county assessor’s office called the Co-op and asked about the listing. Within a few days the Co-op completed the list and filed it with the County on July 14, 1978. Upon receipt of the list, the County assessed a penalty by raising each of the valuations by 50%. The first half of the Co-op’s 1978 personal property taxes, based upon the assessed valuation of its tangible personal property, was $213,411.44. The 50% penalty increase amounted to $106,705.88. Thus the total of the first half of its 1978 personal property taxes amounted to $320,117.32. On December 18, 1978, the Co-op paid the latter amount to the County and, pursuant to K.S.A. 79-2005, protested payment of taxes on the penalty in the amount of $100,705.88. On January 12, 1979, and within 30 days after payment of taxes, the Co-op commenced this action in the McPherson district court for recovery of the protested taxes. Like figures are found in the last half of the Co-op’s 1978 taxes which were similarly paid on June 14,1979. The parties have stipulated that the determination made in this action shall control as to the penalty on the full tax.
The trial court held that the imposition of the 50% penalty was proper and that the facts fall squarely within the provisions of K.S.A. 79-1422. Relief was denied. The taxpayer appeals.
K.S.A. 79-306 and K.S.A. 79-1422 were enacted as sections 1 and 2, respectively, of chapter 355 of the Laws of Kansas for 1972.
K.S.A. 79-306 reads:
“Between January 1 and March 1 of each year, every person, except a corporation, domestic or foreign, in which case the filing date shall be April 1, required by this act to list property shall make and sign a statement listing all tangible personal property which by this act he or she is required to list, either as the owner thereof, or as parent, guardian, trustee, executor, administrator, receiver, accounting officer, partner or agent as the case may be and deliver the same to the county assessor of the county where such property has its situs for the purpose of taxation: Provided, That property of merchants required to list property under the provisions of K.S.A. 79-1001a shall be listed and filed on or before April 15 of each year.”
K.S.A. 79-1422 provides:
“In case any person required to file a statement of assessment under the provisions of this act fails to make and file such statement on or before the date prescribed by K.S.A. 79-306, and amendments thereto, but shall file a statement:
“1. Within fifteen (15) days thereafter, the assessor shall, after he or she has ascertained the value of the property of such taxpayer, add ten percent (10%) to the assessed taxable value as a penalty for late filing;
“2. Between fifteen (15) to thirty (30) days thereafter, the assessor shall after he or she has ascertained the value of the property of such taxpayer, add twenty percent (20%) to the assessed taxable value as a penalty for late filing;
“3. Between thirty (30) to forty-five days thereafter, the assessor shall after he or she has ascertained the value of the property of such taxpayer, add thirty percent (30%) to the assessed taxable value as a penalty for late filing: Provided, that for good cause shown the county assessor or county clerk acting as county assessor may extend the time in which to make and file such statement: Provided further, That such request for extension of time must be in writing and shall state just and adequate reasons on which the request may be granted. The request must be received by the county assessor or county clerk acting as assessor prior to the due date of the return.
“In every case where any person shall refuse or fail to make out and deliver to the statement required under this act, the assessor shall proceed to ascertain the number of each description of the several enumerated articles of the property and the value thereof, and for this purpose he or she may examine on oath any person or persons whom he or she may suppose to have knowledge thereof; and such assessor shall make a note of such refusal or failure in a column opposite the person’s name, and shall add to the assessed taxable value fifty percent (50%) of the assessed taxable value.”
We should first state the rules of statutory construction here applicable. The 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 from the statute. State ex rel. Stephan v. Lane, 228 Kan. 379, 390, 614 P.2d 987 (1980); Nordstrom v. City of Topeka, 228 Kan. 336, Syl. ¶ 1, 613 P.2d 1371 (1980); State v. Luginbill, 223 Kan. 15, 19, 574 P.2d 140 (1977).
Tax statutes will not be extended by implication beyond the clear import of language employed therein, and their operation will not be enlarged so as to include matters not specifically embraced. Where there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorably to the taxpayer. Fleming, Company v. McDonald, 212 Kan. 11, Syl. ¶ 1, 509 P.2d 1162 (1973); Grauer v. Director of Revenue, 193 Kan. 605, Syl. ¶ 3, 396 P.2d 260 (1964); Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, 114 P.2d 871 (1941).
Penal statutes must be statutorily construed in favor of the persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Luginbill, 223 Kan. at 19, relying upon State v. Bishop, 215 Kan. 481, 483, 524 P.2d 712 (1974) and State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 300, 398 P.2d 1011 (1965). Applying these rules, it is clear that K.S.A. 79-1422 directs the assessor to add a penalty of 10% to the assessed taxable value of the property as a penalty for late filing when the taxpayer fails to file the required statement by April 1 but files it within 15 days thereafter. Similarly, if the statement is filed between 15 to 30 days after April 1, the penalty is 20%; if between 30 and 45 days after April 1, the penalty is 30%.
The issue here relates to the period after the 45th day. The statute contains no express provision governing the imposition of a penalty upon a taxpayer who files the statement more than 45 days after April 1. The final paragraph of K.S.A. 79-1422 provides in substance that when the taxpayer refuses or fails to file a statement, then the assessor shall proceed to inventory the property, determine the value, make a note of the taxpayer’s refusal or failure, and add a penalty of 50% to the assessed taxable value. In the case before us, the taxpayer neither failed nor refused to make out and deliver the required statement to the assessor. The County was not burdened with the additional duty of making an on-sight inspection, cataloguing the personalty, appraising its value, or examining on oath persons having knowledge thereof. The taxpayer compiled and filed the required statement, although it was tardy in doing so.
It is obvious that the purpose of the act is to require the designated taxpayers to compile and deliver to the county taxing officers lists of tangible personal property by a fixed date. Graduated penalties encourage earlier filing; but no penalty for those who voluntarily file after the 45th date is stated.
Did the legislature intend to equate those who file on the 46th day with those who refuse to file? Was a separate paragraph, assessing a penalty between 30% and 50% for those who file after the 45th day, inadvertently omitted from the statute? We cannot answer these questions from a careful reading of the statute. The class in which this taxpayer falls has been omitted from the statute. We cannot expand the statute to include this class, although it may have been the intent of the legislature to include it. See Ballweg v. Farmers Ins. Co. 228 Kan. 506, 618 P.2d 1171 (1980).
K.S.A. 79-332, requiring the filing of property lists by owners of oil and gas leases, contains similar provisions and similar language; it, too, imposes graduated penalties for failure to timely file. We considered that statute in Walkemeyer v. Stevens County Oil & Gas Co., 205 Kan. 486, 470 P.2d 730 (1970). The taxpayer in that case, however, filed the required statement on April 11, and fell squarely within the express provisions of the statute. We concluded that the imposition of the 10% penalty for late filing was lawfully imposed. In the course of the opinion, we stated:
“[T]he power to impose penalties on delinquent taxpayers is conferred only by statute, and before a penalty may be assessed, the record must clearly disclose the case comes squarely within the provisions of the statute.” (p. 490.)
Such is not the case here.
We conclude that K.S.A. 79-1422 does not authorize imposition of the penalty here assessed against the taxpayer, and that the taxes protested must be refunded. In view of our disposition of the case, we need not reach other points presented in the briefs.
The judgment of the district court is reversed and the case is remanded with directions to order the refund. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal in a tax protest matter in which we are called upon to determine two issues: whether House Bill No. 3228, enacted by the 1980 Kansas Legislature and now appearing as Chapter 236, Laws of 1980, is constitutional; and whether delinquent taxes may be subject to protest under the provisions of K.S.A. 79-2005.
The first issue was resolved in Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 618 P.2d 778 (1980), where we held that Chapter 236, Laws of 1980, is constitutional. We adhere to that determination.
We now turn to the sole remaining issue in this case: whether delinquent taxes may be protested under K.S.A. 79-2005. The taxpayers, Ronald and Julia Rice, made payment, under protest, of several years’ taxes on Shawnee County real estate on August 31,1977. The protest was filed when the taxes were paid, and was timely perfected to the Board of Tax Appeals. That Board granted relief to the taxpayers for the years 1973 through 1976. The Board of County Commissioners, the County Assessor, and the County Treasurer of Shawnee County (hereafter “County”) appealed to the Shawnee District Court where the matter was tried. The County contended that delinquent taxes could not be protested under the statute. The trial court held in favor of the taxpayers on that issue and affirmed the order of the Board of Tax Appeals. The County appealed to the Court of Appeals, and we transferred the case to this court.
The applicable portions of K.S.A. 79-2005 governing tax protests read:
“(1) Any taxpayer before protesting the payment of his or her taxes, shall be required, at the time of paying said taxes, to make and file a written statement with the county treasurer, on forms approved by the director of property valuation and provided by the county treasurer, clearly stating the grounds on which the whole or any part of said taxes are protested, and shall further cite any law, statute, or facts on which such taxpayer relies in protesting the whole or any part of such taxes. ... If the grounds of such protest shall be that any tax levy or any part thereof is illegal, such statement shall further state the exact portion of said taxes which is being protested or if the grounds of such protest shall be that the valuation or assessment of the property upon which the taxes so protested are levied is illegal or void, such statement shall further state the amount of valuation or assessment which the taxpayer admits to be valid and the exact portion of said taxes which is being protested. . . .
“(2) Every taxpayer protesting the payment of taxes, within thirty (30) days after filing his or her protest shall either commence an action for the recovery thereof in some court of competent jurisdiction, or file an application with the state board of tax appeals, on forms approved by the state board of tax appeals and provided by the county treasurer, for a hearing on the validity of such protest. Within ten (10) days after the filing of such application, such taxpayer shall give notice of the same to the county treasurer by filing with him or her a true copy of the application filed with the board. The board shall fix a time and place for a hearing on such application . . . .”
The wording of this statute has been changed but little since its enactment in 1941. See L. 1941, ch. 374, § 1. We note that it has been amended since this case arose, but the amended portions have no applicability here. The principal changes are that a taxpayer who pays all or a part of his taxes before December 20 may now file a protest on or before December 20, and the taxpayer must now file an application for refund with the Board of Tax Appeals; direct actions for refund in “some court of competent jurisdiction” are no longer provided for in subsection (2). See L. 1980, ch. 315.
The County relies upon a Johnson District Court case, Capital Federal Savings and Loan Association v. Western Lumber and Building Supply, Inc., Case No. 49941, decided in 1976. The trial judge in that case dismissed the tax protest portion of the plaintiff’s claim, saying:
“Failure to make timely payment of taxes results in those taxes becoming final and due and not subject to protest. K.S.A. 1975 Supp. 79-2005 is the tax protest statute. K.S.A. 1975 Supp. 79-2004, 2004a specify the time for payment of taxes. When read together, these provisions lead to this conclusion. . . .
“The relevant language of 79-2005 is: ‘Any taxpayer before protesting the pay ment of his taxes, shall be required, at the time of paying said taxes, .... 79-2004, 2004a define the ‘time of paying said taxes’ as either all on the twentieth of December or, one-half then and one-half on the following June 20th. The effect of these provisions is to provide that a legitimate tax protest must be made at the time taxes are due and not after.
“Further evidence of this conclusion is found in the interest penalty provisions of 79-2004 and 2004a. If the taxpayer fails to pay at least the one-half of the [real estate] taxes by December 20th, interest is charged on that one-half. . . . The imposition of the penalty is indicative of the final nature of the tax at that point. It should finally be noted that 79-2005(2), which provides for the refund of taxes following a successful protest, does not include any interest to be refunded. Clearly, the legislature did not contemplate a tax protest on delinquent taxes.”
The Shawnee District Court, in the action before us, disagreed. That court said:
“The Court finds that to adopt the reasoning urged on it by the appellants herein would result in the Court reading into or expanding upon K.S.A. 79-2005 the additional provision that taxes when delinquent may not be protested. The Court is of the opinion that when there are several statutes and the construction of the same is not clear, the Court can consider the same together and arrive at the legislative intent therein. The Court is further of the opinion that when a statute such as K.S.A. 79-2005 is in the Court’s opinion perfectly clear on its face, that the Court may not expand or enlarge upon matters which are not expressly stated therein.”
First, let us consider the matter of the imposition of a penalty upon delinquent taxes, and the failure of K.S.A. 79-2005 to provide for recovery of penalties. Long ago, in State ex rel. Farnham v. Bowker, 4 Kan. *114 (1866), we held that the ten percent penalty required to be added when taxes are not timely paid becomes a part of the taxes. Thus the penalty is recoverable pursuant to K.S.A. 79-2005 since it is a part of the protested taxes.
As to time of payment of real estate taxes, K.S.A. 1979 Supp. 79-2004 provides for payment without penalty, one-half on or before December 20 and the remaining one-half on or before June 20. The statute, however, goes further: it provides that in case the first half remains unpaid after December 20th, it draws interest at a specified rate “and may be paid at any time prior to June twentieth following” by paying the one-half together with accrued interest from December 20. Further, all real estate taxes which remain due and unpaid on June 21 shall draw interest thereafter “until paid.” Thus the statute recognizes that though taxes are “payable” on fixed dates, taxes may actually be paid at other times.
The language of K.S.A. 79-2005 is clear. Any taxpayer who wishes to protest taxes must (1) pay the taxes; (2) file with the county treasurer, at the time of payment, a written statement stating the grounds of protest; (3) within 30 days thereafter, commence an action in court or file an application with the Board of Tax Appeals; and, if the latter alternative is chosen, then (4) within ten days the taxpayer must file with the county treasurer a true copy of the application filed with the Board. The protest must be filed with the county treasurer “at the time of paying,” not when the taxes are “payable.”
The issue was first raised when this matter was before the Board of Tax Appeals. That Board indicated that it had never so construed K.S.A. 79-2005; that to do so would place upon the Board a limitation which does not exist within the language of the statute; and that if the legislature intended to so limit protests, it could have done so.
To prohibit the protest of delinquent taxes is a prerogative of the legislature; it did not write that provision into the tax protest law, and we are not inclined to give the statute a strained and tortured interpretation in order to do so. In Sohio Petroleum Co. v. Board of County Commissioners, 201 Kan. 315, 440 P.2d 554 (1968), the trial judge had placed a strict interpretation on K.S.A. 79-2005, and under that interpretation held protest statements invalid. On appeal by the taxpayers we reversed, holding that although the statute must be clearly followed by a protesting taxpayer, the protest statements were in substantial compliance with the statutory requirements. We gave the statute a commonsense interpretation. We conclude that both the Board of Tax Appeals and the trial court did so in this case, and were correct in their rulings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action opposing the admission of a will to probate on the grounds of incompetency of the testator.
Floyd B. Suesz died on December 25, 1978, in Wichita. On January 8, 1979, Hazel W. Noftzger, named executrix, filed a petition for the admission to probate of Suesz’ will, dated January 31, 1974, and requested that she be issued letters testamentary. Hazel Noftzger is no relation to Floyd Suesz. Notice of hearing was given pursuant to K.S.A. 1979 Supp. 59-2209 and the appellant, C. R. Stickney, testator’s nephew, responded by filing a written defense opposing the admission of the will to probate on the grounds the testator was not competent to execute a will on January 31, 1974. Stickney’s demand for a jury trial was denied by the trial court on February 13, 1979. The hearing on the admission of the will to probate was held on February 27,1979, at which time the trial court admitted the will to probate and issued letters testamentary to Hazel W. Noftzger.
Appellant Stickney appealed the ruling of the district magistrate judge to the district judge on March 22, 1979. The appeal was heard de novo on May 17, 1979. Petitioner Noftzger produced the same evidence as in the previous hearing. Stickney offered no evidence and simply announced he would stand on the record. The district court ordered the will admitted to probate and issued letters testamentary to Hazel Noftzger finding the testator was of legal age, sound mind and not under any restraint when he executed the will. Stickney appealed that judgment on June 29, 1979.
Appellant argues the trial court erred in denying his demand for a jury trial. He claims K.S.A. 59-2212, enacted in 1939, has been repealed by implication because the legislature abolished probate courts in 1976. K.S.A. 59-2212 provides:
“Hearings and rules of evidence. Trials and hearings in probate proceedings shall be by the court unless otherwise provided by law. The determination of any issue of fact or controverted matter on the hearing of any probate proceedings shall be in accordance with the rules of evidence provided for civil cases by the code of civil procedure, except as provided in the act entitled ‘act for obtaining care or treatment for a mentally ill person’ and in the act entitled ‘act for obtaining a guardian or conservator, or both.’ ”
Appellant contends since probate courts were abolished all probate matters are now governed by the rules of civil procedure in Chapter 60 which, he contends, would provide for a jury trial. We do not agree. Although we no longer have separate probate courts, probate proceedings remain and are now tried in the district court. In City of Salina v. Jaggers, 228 Kan. 155, Syl. ¶ 2, 612 P.2d 618 (1980), we stated:
“Repeal by implication is not favored and acts will not be held to have been repealed by implication unless a later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect.”
The 1976 legislature changes are not repugnant to the provisions of K.S.A. 59-2212 and the statute was not repealed by implication.
Appellant next contends K.S.A. 1979 Supp. 59-2408 preserves the right to trial by jury in certain probate matters, such as allowance of a demand, when that issue is appealed from a magistrate judge’s decision. That right to a jury trial is not available in Kansas counties which do not have magistrate judges, and thus appellant contends that deprivation of rights constitutes a denial of equal protection. Appellant then attempts to make his argument applicable to this case by posing this question: Why should creditors in certain counties be entitled to a jury trial when challengers to the probate of a will are not afforded the same right? Such an analogy is inapplicable to this case. The constitutional right to trial by jury refers to that right as it existed at common law. First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, Syl. ¶ 1, 602 P.2d 1299 (1979). We also note the discussion of trial by jury in probate matters in 3 Bartlett, Kansas Probate Law and Practice § 1582 pp. 389-390 (rev. ed. 1953):
“Likewise on appeal to the district court from a proceeding in the probate court admitting or refusing to admit a will to probate, a jury trial of the questions involved is not a matter of right. The decisions have uniformly held that neither party has any right, constitutional or otherwise, to a jury in a proceeding of this character.
“The legislature has provided that issues of fact in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived. Section 5 of the Bill of Rights has been held to cover only matters triable by jury at common law. A proceeding to contest a will does not come within any of these terms. It is a statutory proceeding, and in such proceedings the legislature is fully competent to dispense with a jury.”
This case challenges the admission of a will to probate. It is irrelevant to this issue whether a creditor is entitled to a jury trial on his petition for allowance of a demand or whether that provision is uniformly applicable. Contesting the admission of a will to probate was not a matter triable by jury at common law. The proceeding is a creature of statute and K.S.A. 59-2212 does not provide for a jury trial. Appellant’s issue is without merit.
With regard to appellant’s argument that the testator was incompetent when he executed the will, proponents of the will offered evidence of the testator’s testamentary capacity through testimony of the witnesses to the will in the trial de novo before the district judge. A prima facie case was made for admission of the will to probate. The burden to overcome that showing by clear, satisfactory and convincing evidence shifted to Stickney. In re Estate of Perkins, 210 Kan. 619, 624, 504 P.2d 564 (1972). Appellant cross-examined the proponents’ witnesses but offered no evidence to support his charge of incompetency. He then chose to “stand on the record,” which contained no evidence. The trial court correctly admitted the will to probate. The judgment of the trial court is affirmed.
Appellee cross-appealed for costs and attorneys fees under Supreme Court Rule 7.07(b) (225 Kan. xlviii), which provides:
“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.”
An examination of the record reveals that Stickney appealed from the order of the district magistrate judge to the district judge and offered no evidence to support his charges but stood on the record, which was completely void of evidence of incompetency on the part of the testator. He then appealed to this court from the district judge’s order. We find his appeal frivolous and assess the costs at $98.11 and attorney fees at $1,000 against C. R. Stickney, appellant, and his attorneys, Duncan A. Whittier, Al Hybsha and Laurence Holmes, jointly and severally.
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The opinion of the court was delivered by
Prager, J.:
This is an inverse condemnation case brought by certain landowners against the city of Wichita for a declaratory judgment and to recover just compensation for access rights taken by the city in converting a street to a limited access highway. The facts of the case are not in dispute and essentially are as follows: The plaintiffs, the Hermans, were owners of a tract of land along old Kellogg Street in Wichita. When Kellogg Street was changed to a controlled access facility, plaintiffs’ property lost its direct access to the highway and instead was restricted in access to a frontage road, Kellogg Drive. Because there was no actual physi cal taking of plaintiffs’ property, the city denied there had been any compensable taking. Plaintiffs then filed an action seeking a judgment declaring that a compensable taking had occurred, requiring the city either to purchase the property or institute formal condemnation proceedings, or in the alternative, to award plaintiffs just compensation for the taking. The district court found the loss of direct access to be a compensable taking. This court affirmed the trial court in Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, 559 P.2d 347 (1977). The city failed to initiate either negotiations to purchase or formal condemnation proceedings. The district court then proceeded to determine the issue of damages within the framework of the initial suit, on the theory of inverse condemnation.
The issue of damages to be awarded as just compensation was tried to the jury, and on March 22, 1979, the jury returned a verdict in favor of the landowners in the amount of $146,371.59 as just compensation for the taking of access rights. On May 16, 1979, the court filed its Journal Entry of Judgment, making the following findings of fact:
“(1) The parties agreed to use the date of July 16, 1975, as the date of taking to avoid the expense of reappraisal should another date of taking be selected after a contested hearing.
“(2) Absent the construction project, the property values in the area affected by the project were rising rapidly during the period in question.
“(3) Seven percent (7%) per annum was a commercially reasonable interest rate during the period of July 16, 1975, to the present.
“(4) Reasonable attorneys’ fees for services rendered to the landowners in this case were $10,384.00 for the period prior to February 1, 1977, and $22,033.00 for the period thereafter, the later amount relating to the trial on the issue of just compensation.” '
Based on these findings, the trial court then made the following conclusions of law:
“(1) Plaintiffs are entitled to simple interest on the award at the commercially reasonable rate of seven percent (7%) per annum pursuant to the Fifth and Fourteenth Amendments to the U.S. Constitution and the Kansas Constitution.
“(2) Plaintiffs are entitled to said interest from July 16,1975, to the date judgment is entered herein. To select a date other than July 16, 1975, for the purposes of awarding interest would deprive the plaintiffs of a proper determination of the value of the property on any subsequent date of taking.
“(3) Under Kansas law, landowners are not entitled to attorneys’ fees unless they come within the terms of the Kansas Condemnation Act.
“(4) Defendants are estopped as a matter of law and equity from asserting the landowners were not within the terms of the Kansas Condemnation Act after February 1, 1977.
“(5) As a matter of law, after February 1, 1977, the proceedings were in substantially the same position as if the condemnor had appealed and the landowners prevailed. Thereafter, plaintiffs are entitled to the reasonable attorneys’ fees incurred after said date pursuant to K.S.A. § 26-509. . . .
“(6) Plaintiffs are not entitled to any other attorneys’ fees.”
The court then ordered defendant to pay simple interest on the $146,371.59 awarded as damages at a rate of seven percent (7%) per annum from July 16, 1975, to the date of judgment, and the statutory eight percent (8%) interest thereafter, plus $22,033.00 for attorney fees. It is from this judgment for interest and attorney fees that the city appeals to this court. The city has not appealed from the jury’s verdict fixing the amount of damages at $146,371.59. The landowners have cross-appealed, contending that the trial court erred in denying plaintiffs their attorney fees for services rendered in the case prior to February 1, 1977.
There are four basic issues presented for determination on the appeal. They are as follows:
(1) Is interest allowable prior to judgment on the damages awarded a landowner in an inverse condemnation case?
(2) If interest is allowable prior to judgment, what rate of interest should be awarded?
(3) What rate of interest should be awarded after judgment was obtained by the landowners?
(4) Under the circumstances of this case, are the landowners entitled to recover their attorney fees and, if so, for what services rendered on their behalf?
We will consider each of these issues in order.
INTEREST
The city’s first point on appeal is that the trial court erred in allowing interest on the damages awarded prior to the entry of judgment. In support of its position, the city maintains that a claim for damages for just compensation in an inverse condemnation action is an unliquidated claim, and as such, the party asserting such a claim is not entitled to interest on the damages awarded until the date the judgment is rendered at which time the damages become liquidated. In support of its position, the city relies upon Foster v. City of Augusta, 174 Kan. 324, 256 P.2d 121 (1953). The landowners contend that the allowance of interest as damages from the date of taking is an integral part of just compensation to which the landowner is entitled in a condemnation case. We have concluded that the trial court properly held that the landowners were entitled to interest on the damages awarded from the agreed date of taking, July 16, 1975, until the date judgment was entered. The reliance of the city on Foster v. City of Augusta is misplaced, as Foster dealt with a common-law action for damages resulting from the building of a levee, not an inverse condemnation case. In the opinion, the court specifically stated that the city did not exercise any right of eminent domain and that the proceeding was not based on any condemnation by the city.
This court has long recognized the propriety of allowing interest before judgment on damages awarded in inverse condemnation cases. In Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, Syl. ¶ 5, 8 Pac. 138 (1885), it was held that where a railroad company has taken and appropriated a strip of land for a right-of-way, and afterward the owner sues the railroad company to recover compensation and damages as for the permanent taking and appropriation of the land, the owner may recover interest, or damages in the nature of interest, on the amount that should be allowed him from the time of the taking and appropriation of the land up to the time of the trial. The general rule is set out in Flemming v. Ellsworth County Comm’rs., 119 Kan. 598, 602, 240 Pac. 591 (1925), that “where there is a substantial lapse of time between the actual taking of the property and the payment, interest on the damages for the taking of the property from the time of taking until the time of final payment, or what amounts to the same thing, damages in the nature of interest for delay in payment of compensation, is properly allowed.” Other Kansas cases supporting this rule are the following: Burke v. Board of Education of Common School District No. 110, 181 Kan. 534, 537, 313 P.2d 272 (1957); Great Lakes Pipe Line Co. v. Carson, 168 Kan. 100, 106, 211 P.2d 70 (1949); Bruna v. State Highway Comm., 146 Kan. 375, 377, 69 P.2d 743 (1937); De Vore v. State Highway Comm., 143 Kan. 470, 476, 54 P.2d 971 (1936); Miltimore v. City of Augusta, 140 Kan. 520, 528, 38 P.2d 675 (1934); Calkins v. Railroad Co., 102 Kan. 835, 837, 172 Pac. 20 (1918); Irrigation Co. v. McLain, 69 Kan. 334, 341, 76 Pac. 853 (1904).
The rule followed in Kansas is the rule generally followed throughout the United States. See 27 Am. Jur. 2d, Eminent Domain § 297, and the many cases cited therein. We have no hesitancy in following the Kansas cases and in holding that, in an inverse condemnation case, just compensation requires an allowance of interest from the date of taking by the governmental body until payment is made where there is a lapse of time from the time of taking until the time of payment. The district court properly allowed interest on the damages awarded prior to the entry of judgment in this case.
Since we have determined that the landowners are entitled to interest from the date of taking, we must next consider the rate of interest to be awarded to the landowners from the date of taking until the date of judgment. As noted above, the trial court allowed a prejudgment rate of interest of seven percent (7%). The city maintains that, if the landowners are entitled to prejudgment interest, the proper rate of interest is six percent (6%), the legal rate, rather than seven percent (7%). The landowners take the position that in order for them to recover just compensation for the land taken in these inflationary times, they are entitled to receive a commercially reasonable rate of interest, in this case seven percent (7%), as awarded by the trial court. Although some of the Kansas cases have allowed prejudgment interest in an inverse condemnation case at the legal rate of six percent (6%), those cases do not specifically discuss the appropriate interest rate and are not particularly helpful on this point.
Interest is the compensation allowed by law or fixed by the parties for the use, detention, or forbearance of money. Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 532 P.2d 1081 (1975). Conventional interest is interest arising out of a contract between the parties. Interest by way of damages has been defined as interest allowed for the unlawful detention of money found to be due. It is allowed as compensation to the injured party. The legislature has a broad discretion in fixing the legal rate of interest and, unless applied in a discriminatory or unreasonable manner, such statutes are constitutional and will be enforced by the courts.
Where interest by way of damages is allowed, it is generally computed at the legal rate. In Kansas, K.S.A. 16-201 establishes the legal rate of interest, providing as follows:
“16-201. Legal rate. Creditors shall be allowed to receive interest at the rate of six percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the same and ascertaining the balance; for money received for the use of another, and retained without the owner’s knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made; and for money due from corporations and individuals to their day or monthly employees, from and after the end of each month, unless the same shall be paid within fifteen days thereafter.”
The Kansas cases have consistently held that under K.S.A. 16-201, where interest is recoverable as an element of damages, the legal rate of six percent (6%) is to be allowed in the absence of an express contract providing for a different rate of interest. In McDermott v. Sterling, 133 Kan. 521, 1 P.2d 78 (1931), it is stated that interest not contracted for is allowed by way of damages for nonpayment of money and the interest statute prescribes the receivable rate when there is no agreement. To the same effect are Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 563, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978); and Bloch v. Fedak, 210 Kan. 63, 66, 499 P.2d 1052 (1972).
Note should also be taken of K.S.A. 26-511 which permits the landowner to recover interest at six percent (6%) on the increase where the compensation awarded in a condemnation appeal exceeds the amount of money previously paid to the clerk of the court by the condemning authority. The statute further provides in substance that, if the compensation finally awarded on appeal is less than the amount paid in by the condemning authority, the condemning authority is entitled to interest at the rate of six percent (6%) per annum from the time payment was made to the clerk on the amount that the condemning authority is entitled to have returned from the landowner. We have concluded that K.S.A. 26-511 is a special statute applicable only to condemnation appeals taken under the eminent domain procedure act, K.S.A. 26-501 et seq. We hold that K.S.A. 16-201 is the proper statute to be applied in inverse condemnation cases where prejudgment interest is awarded as damages from the date the property is taken until the date of judgment. It follows that the trial court erred in awarding prejudgment interest at the rate of seven percent (7%) instead of at the legal rate of six percent (6%).
The next issue to be determined is the rate of interest to be allowed the landowners on the damages awarded from the date of the judgment until paid. The city contends that the landowners are entitled to interest on the judgment at the rate of six percent (6%) under the provisions of K.S.A. 26-511. The landowners take the position that they are entitled to interest on the damages awarded at the rate of eight percent (8%) from the date of judgment, relying on the provisions of K.S.A. 16-204 which provides as follows:
“16-204. Judgments; time and rate. All judgments of courts of this state, including judgments rendered on or after the effective date of this act against the state or any of its agencies or any city, county, school district or other political subdivision of the state, shall bear interest from the day on which they are rendered, at the rate of eight percent (8%) per annum, except as otherwise provided.”
In Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 851, 494 P.2d 1113 (1972), it was held that a judgment entered in a condemnation appeal under the eminent domain procedure act bears interest at six percent (6%) per annum in accordance with the provisions of K.S.A. 26-511. The court reasoned that K.S.A. 26-511 is a statutory exception to the allowance of interest at eight percent (8%) per annum on judgments under the provisions of K.S.A. 16-204. We have concluded that an inverse condemnation case should be distinguished from a condemnation appeal taken under the eminent domain procedure act, K.S.A. 26-501 et seq., and that the provisions of 16-204 allowing eight percent (8%) interest should be applied to judgments obtained in inverse condemnation cases. In reaching this conclusion, we note that the eminent domain procedure provides for the filing of a petition by the condemning authority, with notice and the subsequent appointment of appraisers. The appraisers’ award is paid into the office of the clerk of the district court and the landowners may accept the award or appeal. The procedure is substantially different from the procedure followed in an inverse condemnation case. We hold the application of K.S.A. 26-511 should be restricted to condemnation appeals taken under the eminent domain procedure act and that the trial court properly allowed interest to the landowners in this case from the date of judgment at the rate of eight percent (8%) per annum under the provisions of K.S.A. 16-204.
ATTORNEY FEES
The final point on the appeal by the city, and the sole point raised on the cross-appeal by the landowners, involves the allowance of attorney fees to the landowners arising from the inverse condemnation proceeding. It must be emphasized that this case was filed by the landowners on the theory that the access rights of the landowners had been taken by the city and that, if the city did not see fit to condemn the plaintiffs’ land in its entirety, then the landowners were entitled to damages for the access rights taken. In their'original petition the plaintiff landowners pleaded three causes of action: The first cause of action was for a declaratory .judgment seeking to have the district court declare that the barring of plaintiffs’ access rights to the highway constituted the taking of plaintiffs’ property without just compensation as required by the Fifth Amendment to the United States Constitution; the second cause of action asserted that the plaintiffs were entitled to have their properties condemned by the city; the third cause of action prayed that, in the alternative and in the event the city should not condemn the plaintiffs’ property as requested in the second cause of action, the plaintiffs were entitled to recover from the city just compensation for the taking of their property. Thus, it is clear that the action filed in this case by the plaintiffs was to be used as a vehicle by which the district court might award damages to the plaintiffs for the loss of their access rights in the event a compensable taking of property was found by the district court. After entering its finding that there had been a taking of access rights by the city, the district court, with the consent of the parties, deferred determination of the amount of damages until the question of a compensable taking could be determined on appeal by the Supreme Court.
In Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, it was held that attorney fees and litigation expenses are not embraced within the concept of just compensation for land taken by eminent domain. It was further held that attorney fees and expense of litigation, other than court costs, incurred by a prevailing party in an action, are not chargeable as costs against the defeated party in the absence of a clear and specific statutory provision therefor, and our eminent domain statute (26-501 et seq.) contains no such specific provision. In Schwartz, the provision for an allowance of attorney fees in K.S.A. 26-509 was not invoked by the landowners. K.S.A. 26-509 provides for an allowance of attorney fees to the landowners only where the condemnor appeals the award of the court-appointed appraisers and the jury renders a claim for the landowners in an amount greater than the amount of the award. In Schwartz, it was the landowners who appealed from the award of the appraisers and, hence, 26-509 had no application. In the recent case of In re Central Kansas Electric Coop., Inc., 224 Kan. 308, 319, 582 P.2d 228 (1978), the court held in a condemnation appeal that attorney fees may be allowed to the condemnee under K.S.A. 26-509 only in those cases where the condemnor has appealed and the jury renders an amount greater than the appraisers’ award. In that case, both parties appealed from the court-appointed appraisers’ award. The landowners announced five minutes before going to trial that they were dropping their appeal. Under the circumstances, it was held that it was error for the trial court to allow attorney fees to the landowners when they had originally been appealing parties.
The trial court in this case awarded attorney fees on the basis that the city of Wichita was estopped as a matter of law and equity from asserting that the landowners were not within the terms of the Kansas condemnation act. After the case was affirmed by the court on the first appeal, the district court reasserted jurisdiction on February 1, 1977. The trial court concluded as a matter of law that after February 1, 1977, the proceedings were in substantially the same position as if the condemnor had appealed and the landowners prevailed. Therefore, the plaintiffs were entitled to reasonable attorney fees incurred after that date pursuant to K.S.A. 26-509. The court concluded that plaintiffs were not entitled to their attorney fees prior to that time. The landowners’ claim of an estoppel was based upon the reasoning that, because counsel for the city had informed counsel for the landowners that the city would probably purchase the plaintiffs’ property or initiate formal condemnation proceedings if a compensable taking was found and then reneged on that promise when federal and state authorities declined to make condemnation funds available, the landowners had changed their position and, therefore, the city was estopped to deny that K.S.A. 26-509 was applicable. We have concluded that there is no basis to establish an estoppel against the city in this case.
As noted above, in the original petition the landowners prayed in the alternative for a money judgment from the city as just compensation for the taking of their property. The trial court in the original pretrial order specifically reserved for later determination, if necessary, the issue of damages including interest and attorney fees. It clearly appears that there was a bona fide dispute between the city and the landowners as to whether there had been a compensable taking of their access rights. The attorney for the city simply advised counsel for the landowners, by letter, that in the event a compensable taking was found, he would recommend that the city acquire the fee Title to the. property rather than pay the diminution in the value of plaintiffs’ property. We find nothing in the record showing that the city committed itself to condemn plaintiffs’ entire tract nor any basis on which the landowners could reasonably claim that they were prejudiced by reason of the city’s decision not to condemn their property.
We find that, under the circumstances of this case, attorney fees were not recoverable by the landowners. K.S.A. 26-509 is applicable only to condemnation appeals taken from appraisers’ awards under the provisions of K.S.A. 26-501 et seq. K.S.A. 26-509 is not broad enough to cover inverse condemnation cases and, hence, there is no clear statutory authority for the allowance of attorney fees to landowners in cases involving inverse condemnation. Although the legislature might have provided for the recovery of attorney fees in inverse condemnation actions, it failed to do so. Under all the circumstances, we find that the trial court erred in allowing attorney fees to the landowners for services rendered in the inverse condemnation action.
The judgment of the district court is affirmed in part and reversed in part. It is the judgment of this court that the plaintiffs, as landowners, are entitled to interest on the damages awarded by the jury at the rate of six percent (6%) from the agreed date of taking, July 16, 1975, to the date of judgment, May 16, 1979, and interest at the rate of eight percent (8%) from the date of judgment until date of payment. It is further the judgment of this court that the plaintiffs are not entitled to any recovery of attorney fees in this action.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action by a customer against a bank for its improper payment of certain checks over forged and restrictive indorsements. The trial court entered summary judgment for the bank. This appeal followed.
The agreed-upon facts are as follows. Plaintiff is a farm coop erative engaged in the usual business of buying and selling farm products and supplies. Its principal place of business is Cairo in Pratt County with a branch office at Cunningham in Kingman County. In 1963 it employed one K. C. Jones and, in 1969, the company named him manager of the Cunningham branch. Plaintiff maintained a checking account with defendant bank in which it regularly deposited and withdrew funds. As manager of plaintiff’s Cunningham branch, Jones signed and delivered a bank signature card to defendant. The card designated Jones as the person authorized to draw checks on the Co-op account.
From September 30, 1969, to March 6, 1976, Jones caused 101 checks to be issued for various amounts to various customers. The checks were signed by Jones on behalf of plaintiff. The checks were drawn on plaintiff’s regular check forms payable to customers of plaintiff. Jones obtained cash from the checks by forging the customer’s indorsement or by a combination of forging the indorsement and stamping a Co-op restrictive indorsement on the checks. We are concerned here only with the latter checks. Appellant has abandoned its appeal regarding the checks which were cashed solely from the forged indorsement.
Jones cashed 91 checks in the total amount of $46,564.46 upon which appeared the Co-op’s restrictive indorsement, which stated: “Pay to the order of First National Bank, Cunningham, Kansas. For Deposit Only, Cairo Co-op Equity Exchange, Farmer’s Co-op.” The checks were then presented to defendant by Jones for cash. None of the checks were listed on a deposit slip nor were they deposited to plaintiff’s account. Jones retained the funds obtained from the checks and his whereabouts are now unknown.
In its petition, plaintiff alleged breach of contract, conversion (K.S.A. 84-3-419), and negligence and failure to exercise good faith and ordinary care (K.S.A. 84-4-103). Defendant generally denied the allegations of the petition. Both parties filed motions for summary judgment. The trial court granted defendant a summary judgment with findings and conclusions of law stating:
“[T]he gravamen of plaintiff’s first cause of action is a breach of an alleged legal duty that arises independent of contract and arises out of the circumstances surrounding or attending the transaction between the parties and therefore its action sounds in tort and not contract, and this conclusion provides additional support for the Court’s ruling granting defendant summary judgment on plaintiff’s first cause of action.”
The court made no specific ruling on the theory of conversion but instead ruled on the question of restrictively indorsed checks as follows:
“17. The provisions of K.S.A. 84-4-103 make it possible for parties to vary by agreement the proscription of K.S.A. 84-3-206(4) relating to payment over a restrictive indorsement.
“18. K. C. Jones, acting within the scope of his employment and pursuant to the express authority granted him in the depositor’s contract and his implied and apparent authority to transact all business for the Cunningham branch, relieved the defendant (as allowed by K.S.A. 84-4-103) of any obligation it may have had to apply the proceeds of the checks consistent with any restrictive indorsement, through his course of dealing and course of performance with the bank (see K.S.A. 84-l-201[3]) and defendant is therefore entitled to summary judgment on plaintiff’s cause of action founded on the restrictively indorsed checks.
“24. Since plaintiff, through its authorized agent, relieved the bank of any obligation to apply the proceeds of the restrictively indorsed checks consistent with the restrictive indorsement, all the checks fall under the Fictitious Payee Rule of K.S.A. 84-3-405.”
The trial court then concluded the plaintiff received the cash from the checks because Jones, plaintiff’s agent, was acting within the scope of his employment.
The trial court considered the remaining claim of negligence and found no evidence of bad faith on the part of the bank but found plaintiff Co-op contributorily negligent by hiring Jones and clothing him with blanket authority over the financial affairs of the Cunningham elevator, thereby placing him in a position to defraud the company. It also found the Co-op negligent in failing to discover the fraud sooner and in carrying on a course of conduct for six years which lulled the bank into believing Jones had authority to do what he was doing.
K.S.A. 84-3-205 covers the definition of restrictive indorsements:
“An indorsement is restrictive which either
(a) is conditional; or
(b) purports to prohibit further transfer of the instrument; or
(c) includes the words ‘for collection,’ ‘for deposit,’ ‘pay any bank,’ or like terms signifying a purpose of deposit or collection; or
(d) otherwise states that it is for the benefit or use of the indorser or of another person.”
The effect of such indorsements is set out in K.S.A. 84-3-206, which provides in part:
“(3) Except for an intermediary bank, any transferee under an indorsement which is conditional or includes the words ‘for collection,’ ‘for deposit,’ ‘pay any bank,’ or like terms (subparagraphs (a) and (c) of section 84-3-205) must pay or apply any value given by him for or on the security of the instrument consistently with the indorsement and to the extent that he does so he becomes a holder for value. In addition such transferee is a holder in due course if he otherwise complies with the requirements of section 84-3-302 on what constitutes a holder in due course.”
The evidence is uncontroverted the 91 checks all bore restrictive indorsements and all were paid to Jones by the depositary bank in violation of the restrictive indorsement. It is argued Jones, as general manager of the Cunningham branch, orally varied the duty imposed by the restrictive indorsement when he requested cash rather than a credit to the Co-op account. This argument relies on K.S.A. 84-1-102(3) which states in part:
“(3) The effect of provisions of this act may be varied by agreement . . . .”
Code analysis is not supportive of that position. In an Article 9 context, the Texas Court of Civil Appeals in Davis v. Small Business Inv. Co. of Houston, 535 S.W.2d 740 (Tex. Civ. App. 1976), holds the parties’ intention to modify the duties imposed by the UCC must be clear, and modification will not be implied from ambiguities in their written agreement. There are sound policy reasons for requiring strict construction of modifications by agreement which change the legal consequences of restrictive indorsements. K.S.A. 84-3-414 specifically requires indorsements be in writing and an indorser’s disclaimer of liability through a “no recourse” indorsement must be written on the instrument and cannot be proven by parol. See Official Comment, K.S.A. 84-3-414.
In the case at bar, there is no evidence, other than course of conduct of plaintiff in violation of the UCC, to indicate modification of K.S.A. 84-3-206 and the resulting release of the bank from liability. Case law does not support the argument that a course of conduct can vary the duties imposed by a restrictive indorsement or ratify conduct contrary to reasonable commercial standards, and defendant bank cannot assert the defense of estoppel where it failed to act with ordinary care. K.S.A. 84-4-406(3). Kraftsman Container v. United Ctys. Trust Co., 169 N.J. Super. 488, 404 A.2d 1288 (1979), illustrates this point. Kraftsman’s employee was authorized to draw checks from Kraftsman on its account with defendant bank. The employee wrote checks to fictitious payees and forged an indorsement on them, usually illegible, and cashed the checks. Some were even cashed without indorsement. This scheme lasted four years. The failure of the bank to question the employee about the irregularly presented checks evidenced a lack of good faith. The court stated, “[B]ad faith may be evidenced by a consistent failure by the bank to monitor and investigate a series of irregular transactions.” Kraftsman at 497.
In Underpinning v. Chase, 46 N.Y.2d 459, 414 N.Y.S.2d 298, 386 N.E.2d 1319 (1979), employee Walker embezzled money from the company by writing checks to payees, obtaining the company signatures and forging a restrictive indorsement thereon. Several depositary banks accepted the checks and deposited the proceeds to Walker’s account in violation of the restrictive indorsement. Underpinning sued the depositary banks. The court held where the forgery is effective, the drawer could have several causes of action against the drawee including conversion of proceeds of the check; liability for money had and received; or conversion of the instrument itself. The court stated:
“In summary, we hold today that a drawer may directly sue a depositary bank which has honored a check in violation of a forged restrictive indorsement in situations in which the forgery is effective. This result is not only theoretically viable, but is in accord with principles of equity and sound public policy. It is basic to the law of commercial paper that as between innocent parties any loss should ultimately be placed on the party which could most easily have prevented that loss. Hence, in most forged indorsement cases, the party who first took the check from the forger will ultimately be liable, assuming of course that there is no solvent forger available. This is so because it is the party who takes from the forger who is in the best position to verify the indorsement. . . .
“. . . The presence of a restriction imposes upon the depositary bank an obligation not to accept that item other than in accord with the restriction. By disregarding the restriction, it not only subjects itself to liability for any losses resulting from its actions, but it also passes up what may well be the best opportunity to prevent the fraud. The presentation of a check in violation of a restrictive indorsement for deposit in the account of someone other than the restrictive indorser is an obvious warning sign, and the depositary bank is ^required to investigate the situation rather than blindly accept the check. Based on such a failure to follow the mandates of due care and commercially reasonable behavior, it is appropriate to shift ultimate liability from the drawer to the depositary bank.” Underpinning at 468-469.
Finally, in C. S. Bowen Co. v. Maryland Nat’l Bank, 36 Md. App. 26, 36, 373 A.2d 30 (1977), the court dealt with a suit by a drawer against a depositary bank for failing to abide by a restrictive indorsement. The court stated, referring to Maryland UCC 3-206(3) [K.S.A. 84-3-206(3)]:
“This section and other sections of the U.C.C. dealing with restrictive indorsements make it clear that a depositary bank that does not apply an instrument consistently with a restrictive indorsement is liable in conversion.”
It is clear the defendant is liable to plaintiff for failing to honor the restrictive indorsement unless Jones modified the dictates of the indorsement by his action in requesting cash. We find no evidence to support modification. Jones and the bank entered into a contract commonly called a signature card. Nothing in that contract can be construed as an agreement to vary the application of K.S.A. 84-3-206(3). The only evidence of an agreement to vary is Jones’ course of conduct. As yve have previously indicated, good practice dictates that an agreement to vary a restrictive indorsement be in writing and noted on the instrument by a person with proper authority. We so hold.
We have stated the nature of the action, whether tort or contract, is determined by the pleadings and proof. Malone v. University of Kansas Medical Center, 220 Kan. 371, 374, 552 P.2d 885 (1976). Here, plaintiff asserted the following claims in the alternative: breach of an express or implied contract, conversion and negligence. The cases we have previously cited which establish the liability of a bank for violating a restrictive indorsement all speak of conversion as the remedy against a depositary bank. See Kraftsman Container v. United Ctys. Trust Co., 169 N.J. Super. 488; Underpinning v. Chase, 46 N.Y.2d 459; and C. S. Bowen Co. v. Maryland Nat’l Bank, 36 Md. App. 26. We do not, however, interpret this to indicate conversion as the exclusive remedy. Breach of contract is also available in this case.
Appellant bank, in addition to being the depositary bank (K.S.A. 84-4-105[a]) is also the drawee or payor bank (K.S.A. 84-4-105[¿]). Clark and Squillante, The Law of Bank Deposits, Collections and Credit Cards (1970) states at page 28:
“The relationship between the drawee bank and its customer as drawer of a check is primarily based on the deposit contract. The demand deposit account creates a debtor-creditor relationship which is reversed to the extent that overdrafts enter the picture.”
This court has held that absent a special agreement, an implied contract arises from this debtor-creditor relationship. Wichita Frozen Foods Co., Inc., v. Union National Bank of Wichita, 190 Kan. 539, Syl. ¶ 2, 376 P.2d 933 (1962).
The express agreement in this case is the signature card, designated “Depositor’s Contract.” The contract does not contain a provision requiring appellant bank to honor restrictive indorsements placed on checks. We have held, however, it is presumed parties enter into contracts with reference to existing law. Steele v. Latimer, 214 Kan. 329, 336, 521 P.2d 304 (1974). The rule of law expressed in 17 Am. Jur. 2d, Contracts § 257, pp. 654-656, adopted in Steele on page 336 provides in part:
“ ‘[Parties] are presumed to have in mind all the existing laws relating to the contract, or to the subject matter thereof. Thus, it is commonly said that all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law of the land at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. . .
See 4 Williston on Contracts § 615 (3rd ed. 1961).
We find, absent an expressed intent of the parties to the contrary (see K.S.A. 84-l-102[3]), the provisions of the Uniform Commercial Code governing Commercial Paper (Article 3) and Bank Deposits and Collections (Article 4) are made express provisions of the depositor’s contract. Accordingly, we find the bank as drawee liable for breach of the express contract with its depositor. In light of the foregoing, it is unnecessary to discuss plaintiff’s alternative claims of breach of implied contract and negligence.
We hold the plaintiff in this case has proven a case of conversion and breach of contract. The judgment of the trial court and Court of Appeals is affirmed as to the 10 checks without restrictive indorsements in the amount of $9,229.18 and is reversed as to the 91 checks with restrictive indorsements. The case is remanded to the trial court with orders to enter judgment accordingly with interest at 8% from the date of wrongful payment with the costs to be apportioned between the parties. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found Charles E. Mack (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427). Various trial errors are asserted.
Patty C. Lucas, a clerk in a 7-11 store located in Olathe, Johnson County, Kansas, was the victim of a gunpoint robbery shortly after 11:00 o’clock p.m. on May 2, 1978. Ms. Lucas’ testimony provided a substantial part of the evidence against the appellant. Ms. Lucas testified two black men entered the 7-11 store and walked to a cooler in the rear of the store. One of the men then walked to the checkout counter with a bottle of punch. As the man approached the counter he brandished a gun and declared, “This is a stickup.” The gun-toting robber ordered Ms. Lucas to open the cash register. The second robber, who was behind the counter putting cigarettes into a paper sack, emptied the contents of the cash register into the sack. A coin box in the store’s safe was emptied into the sack. The gunman also demanded the contents of Ms. Lucas’ purse; she relinquished $5.
The robbers attempted to locate a place in the store where Ms. Lucas could be locked up. With hope of avoiding injury to herself, Ms. Lucas offered to stay in the walk-in cooler while the men left. The robbers placed Ms. Lucas in the cooler, then fled on foot.
The police arrived soon after Ms. Lucas reported the robbery. Detective Phillip R. Patterson investigated the crime. He took a statement from Ms. Lucas later the same night. Ms. Lucas gave a description of both robbers. She described the man with the gun as 5'6" tall, weighing 140 pounds; he had a mustache, a full beard about one inch'long, and a neatly trimmed afro haircut. The gunman was nicely dressed in dark pants, floral print shirt, black loafers, and a white leisure-style jacket. The second man was also neatly dressed in dark slacks, floral print shirt, and dark loafers. He had no beard or mustache, and wore an afro haircut shorter than the gunman’s. Using Ms. Lucas’ descriptions a police artist made a composite photo of each suspect. Ms. Lucas described the gun used in the robbery as a small, black, cylinder-type handgun.
Detective Patterson showed Ms. Lucas a mug book the night of the robbery. A mug shot of the appellant was among the photos, but Ms. Lucas did not identify any of the photos as representing either of the robbers.
One week after the robbery, Detective Patterson displayed four photographs before Ms. Lucas and asked her if she could identify any of the men in the photos. Ms. Lucas selected the appellant’s photo as depicting the gunman. At trial, Ms. Lucas positively identified the appellant as the gunman. A motion to suppress the courtroom identification was denied. The trial court determined Ms. Lucas had an independent basis for her courtroom identification of the appellant.
The appellant defended on the theory of misidentification. William Willis, a forensic examiner for the Johnson County Criminalistics Laboratory, testified that none of the fingerprints found in the store belonged to the appellant. Ms. Lucas had testified that the robbers touched several items in the store. The latent fingerprints used for comparison by Willis were removed from items identified by Ms. Lucas (walk-in cooler door; bottle of punch).
Ms. Gina Guerra testified that she drove her car to the front of the 7-11 store during the robbery. As Ms. Guerra started to exit her car she observed a black man at the checkout counter who held a gun. She quickly departed. Ms. Guerra testified she observed the gunman for 10-15 seconds. At trial, Ms. Guerra testified the appellant was not the gunman she observed the night of the robbery.
The appellant first specifies that the sentencing judge erred in imposing the mandatory minimum sentence provisions of K.S.A. 1979 Supp. 21-4618, because no evidentiary hearing was held to determine whether a firearm was used by the appellant in the commission of the crime.
We have limited the application of this statute to a defendant personally armed with a firearm at the time the crime is committed. The statute does not suggest that the mandatory sentencing apply to aiders and abettors, accomplices or coconspirators. State v. Stuart and Jones, 223 Kan. 600, 607, 575 P.2d 559 (1978). For the statute to be applicable, the State must establish, and the sentencing court must find, that the firearm was an instrumentality of the crime. State v. DeCourcy, 224 Kan. 278, 281, 580 P.2d 86 (1978). The State is not obligated to charge, or to prove during trial, that the defendant used a firearm in the commission of the offense. Whether a defendant used a firearm in the commission of an Article 34 offense is a matter to be determined by the trial judge at the time of sentencing. It need not be submitted to the jury. State v. McCarty, 224 Kan. 179, 180-81, 578 P.2d 274 (1978); State v. Mullins, 223 Kan. 798, 800-01, 577 P.2d 51 (1978). We emphasized in State v. Quick, 226 Kan. 308, 318-19, 597 P.2d 1108 (1979), that the sentencing judge should make a finding which specifies who used the firearm. On appeal, the scope of review of sentencing under 21-4618 is limited to whether there was competent evidence to support a finding that the defendant used a firearm in perpetrating the crime. State v. Bryant, 227 Kan. 385, 388, 607 P.2d 66 (1980); State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211 (1979).
The appellant claims an evidentiary hearing should have been conducted prior to sentencing because the sentencing judge had no factual basis for finding that the appellant personally used a firearm. The appellant also contends the sentencing judge failed to make a specific finding as required by State v. Quick, 226 Kan. at 319. Here the judge who conducted the appellant’s trial was ill and hospitalized at the time the appellant was sentenced. A different judge pronounced the appellant’s sentence.
As in State v. Quick, 226 Kan. at 319, the finding of the sentencing judge failed to specify it was the appellant who used a firearm in this particular case. Here the sentencing judge stated:
“I note that in the presentence report there was reference in several instances to the crime having been committed with a firearm. I note further that both counsel for the State and counsel for the defendant commented on the presentence report, making corrections where appropriate, and that no correction was made in that regard such that I have no alternative but to assume the correctness, that a firearm was in fact used in the commission of this crime and that that was the evidence presented at the time of trial. Accordingly I would find K.S.A. 21-4618 is the appropriate statute to sentence this defendant under.”
Our decision in Quick, disapproving non-specific findings, was not filed until July 14,1979. The appellant was sentenced on June 27, 1979. The sentencing judge did not have the benefit of our opinion in Quick.
On the facts of this case, the sentencing judge’s failure to hold an evidentiary hearing, or to specify who used the firearm, does not constitute prejudicial error. Assuming the trial judge technically committed error, the evidence adduced at trial clearly indicates only one of the robbers possessed a gun. The victim positively identified the appellant as the gunman. The appellant was charged and tried as a principal, not as an aider or abettor. The instructions to the jury required a specific finding that the appellant was armed with a deadly weapon. There was overwhelming competent evidence the appellant used a firearm in committing the robbery. State v. Bryant, 227 Kan. at 388.
The appellant next specifies the trial court erred in refusing to grant a new trial (K.S.A. 22-3501). Six specific instances of trial court error are cited as sufficient bases for a new trial. Our review of each of the alleged errors discloses the trial court did not err in overruling the appellant’s motion for a new trial.
(1) Prior to trial the appellant sought an order compelling disclosure of the identity of an informer who implicated the appellant in the crime. The trial court ordered the State to ascertain whether the informer was a participant or witness to the robbery, and if so, to disclose the informer’s identity. On appeal, the appellant does not contend that the State violated the trial court’s directive. The appellant asserts the informer’s identity was necessary to ascertain whether the informer was the source of an anonymous threatening phone call to one of the appellant’s witnesses. The appellant also contends the informer’s identity was needed to test the validity of the victim’s photo identification.
It is incumbent upon the defendant to show that the identity of the informer is material to his defense. State v. Braun, 209 Kan. 181, 186, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972). It is a matter within the sound discretion of the district court as to whether the identity of an informer should be disclosed, and that determination will not be disturbed in the absence of an abuse of discretion. K.S.A. 60-436; State v. Grider, 206 Kan. 537, 538, 479 P.2d 818 (1971); see State v. Knox, 4 Kan. App. 2d 87, 603 P.2d 199 (1979).
(2) The appellant alleges the trial court erred in admitting into evidence a mug book photograph wjnch had been altered with masking tape to conceal writing and numbers on its face. He contends the photo was prejudicial, despite the State’s alteration, because the jury could observe a height scale in the background of the photo. The appellant contends the jury would speculate about prior crimes, hence placing his character in evidence in violation of K.S.A. 60-421 and 60-455. The trial court considered and overruled the appellant’s objections, stating the photo was relevant and as altered was not prejudicial.
Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules. State v. Reed, 226 Kan. 519, 524, 601 P.2d 1125 (1979). The photograph was obviously relevant evidence. The photograph was identified by the victim in the photo lineup. The validity and credibility of the victim’s identification of the appellant was a material issue. The State was careful to limit possible prejudice by concealing the date and number on the photo with masking tape. See State v. Dotson, 222 Kan. 487, 489-90, 565 P.2d 261 (1977).
(3) At trial, the appellant’s counsel moved for a continuance to locate the first defense witness, Gina Guerra. The appellant contends the trial court erred in requiring counsel, in the jury’s presence, to state the reason for the continuance.
The appellant’s counsel made the following statement:
“MR. EISENBRANDT: Your Honor, with the Court’s permission, I would ask the Court for a short recess to ascertain the whereabouts of my first witness. She was subpoenaed by the State as well as myself and I talked to her at 9:30 last night and she indicated that she would be here this morning. She also indicated that she did have a problem with her children at that time and I need to find out where she is. My next witness isn’t scheduled to be here for about a half hour and I had no way of knowing if the State was going to rest its case now or not. So I’d ask for a short recess so I could find the whereabouts of this witness, please.
“THE COURT: Very well. Members of the jury, we’ll take a short recess. The admonition heretofore given will apply.”
The State contends it is pure speculation to say what the jury thought of appellant’s counsel’s request; appellant’s counsel explained the witness had a problem with her children. The State nevertheless speculates there was an inference that Ms. Guerra may have had trouble obtaining a babysitter. When Ms. Guerra later appeared tó testify, she held her three children about her on the witness stand. We are satisfied that no prejudice resulted from the trial court’s order.
(4) The appellant contends the trial court erred in refusing to give the reasonable doubt instruction approved by this court in State v. Wilkins, 215 Kan. 145, 153, 523 P.2d 728 (1974). The trial court instructed the jury on reasonable doubt using PIK Crim. 52.02. Additional instructions defining reasonable doubt are unnecessary. State v. Ponds and Garrett, 218 Kan. 416, 421, 543 P.2d 967 (1975). See PIK Crim. 52.04.
(5) The appellant contends the trial court erred in refusing to instruct the jury on identification testimony. The appellant requested the trial court give an instruction adapted from United States v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972).
We have previously considered the possible use of a specific instruction on identification. See State v. Porter, 223 Kan. 114, 574 P.2d 187 (1977); State v. Robertson, 221 Kan. 409, 559 P.2d 810 (1977); State v. Wilson, 221 Kan. 92, 558 P.2d 141 (1976); State v. Ponds and Garrett, 218 Kan. at 419. In State v. Robertson, 221 Kan. at 411, we rejected the need for an instruction modeled after the Telfaire instruction. Here, as in Robertson, the instructions given covered and included the substance of the one refused.
(6) The appellant contends the trial court erred in not granting a new trial because of juror misconduct. In an affidavit, one juror stated the jury conducted an experiment to determine ability to estimate correct height.
We view such an experiment as part of the jury’s deliberative process. It was not misconduct or receipt of evidence out of court. Jurors are instructed to use common knowledge and experience in their deliberations. PIK Crim. 52.09. See United States v. Hephner, 410 F.2d 930 (7th Cir. 1969); People v. Smith, 223 Cal. App. 2d 225, 237, 35 Cal. Rptr. 719 (1963), overruled on other grounds sub nom. People v. Hood, 1 Cal. 3d 444, 82 Cal. Rptr. 618, 462 P.2d 370 (1969).
Finally, the appellant contends the trial court erred in refusing to grant a judgment of acquittal. A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980); State v. Rodriquez, 226 Kan. 558, 564, 601 P.2d 686 (1979). We have reviewed the evidence and are satisfied the trial court committed no error in refusing the appellant’s motion.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Separate appeals were taken in separate cases decided by the District Court of Johnson County, Kansas. The two appeals were consolidated for oral arguments before this court since the appeals raised similar questions. In the interest of conserving time and space one opinion is being prepared to decide both appeals. The primary question common to both appeals concerns the recovery of attorney fees pursuant to K.S.A. 1979 Supp. 40-3113a(e) from an insurer which issued policies covering both the injured person and the tortfeasor. The facts were stipulated to in both cases, and attorney fees were allowed for the recovery of personal injury protection (PIP) benefits reimbursed to the insurance company.
BALLWEG FACTS
On November 3, 1977, Mila Parkhurst suffered personal injuries as a result of a two-car accident in Johnson County, Kansas. Ms. Parkhurst was one of four passengers in a vehicle driven by a Mr. McFadder.
Ms. Parkhurst had her own policy of automobile liability insurance with Farmers Insurance Company, Inc. (Farmers). Ms. Parkhurst received $999.23 in PIP benefits as a result of the accident. The driver of the other car, Linda Riggs, was the tort-feasor who caused the accident. Ms. Riggs was also insured by Farmers.
Attorney Ernest C. Ballweg was retained by Ms. Parkhurst to pursue her tort claim against the Riggs estate. Mr. Ballweg did perform legal services for Ms. Parkhurst by assisting her in obtaining PIP benefits. He then negotiated with the parties and with Farmers concerning the liability of Ms. Riggs to Ms. Parkhurst. It was agreed that the negligence of Ms. Riggs was the sole cause of the accident. Farmers agreed to pay the full liability limits on the Riggs policy, $30,000.00, to various claimants including Ms. Parkhurst. The injured parties agreed among themselves to an equitable division of the money available after subtracting the reimbursable PIP benefits of $999.23. Farmers as the insurer of Ms. Riggs paid the $30,000.00. Then Farmers, which paid PIP benefits of $999.23 to Ms. Parkhurst, received the sum of $999.23 in reimbursement.
The various claimants having an interest in the $30,000.00 fund, minus the $999.23, agreed that Ms. Parkhurst should have $3,600.00 as her share. Farmers deducted the $999.23 from the $3,600.00 and paid her and her attorney, Mr. Ballweg, the balance of $2,600.77.
Mr. Ballweg’s claim against Farmers for attorney fees in collecting the $999.23 was rejected by Farmers and court action followed.
HACKWORTH FACTS
On August 17, 1976, Darlene Hackworth was injured in a two-car automobile accident in Johnson County. She was the operator of her car which was insured by Farmers Insurance Company, Inc. (Farmers). Under this insurance coverage Mrs. Hackworth received $14,968.96 in personal injury protection (PIP) benefit payments.
Thomas P. Reynolds was driving the other automobile involved in the accident. Mr. Reynolds was also insured by Farmers with a maximum coverage of $30,000.00 per person.
Mrs. Hackworth retained attorney Patrick J. Reardon to pursue her claim against Mr. Reynolds. The nature and extent of Mrs. Hackworth’s injuries were disputed issues in the case filed against Mr. Reynolds. After discovery was undertaken by Farmers, Mrs. Hackworth and her attorney accepted an offer of settlement from Farmers and Reynolds for $30,000.00, less the $14,968.96 reimbursement for PIP payments for a net amount of $15,031.04 to be paid to Mrs. Hackworth in full settlement of the Hackworth claim.
Mr. Reardon as the attorney responsible for the $14,968.96 reimbursement to Farmers claimed a right to an attorney fee. The parties then agreed that a release would be given to Mr. Reynolds and he would be dismissed from the pending action. It was further agreed that Farmers would enter its appearance in the case and that Mr. Reardon would submit the matter of entitlement and amount of fee to the court for its decision. Recovery was sought based on the return of $14,968.96 in PIP payments to Farmers.
CONSTRUCTION OF THE STATUTE
Does K.S.A. 1979 Supp. 40-3113a(e) authorize and direct a court to fix attorney fees which shall be paid proportionately by the insurer and the injured person when one insurance carrier insures all the relevant persons involved?
The foregoing section of the statute reads:
“Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, his or her dependents or personal representatives in the amounts determined by the court.”
The insurance carrier in these two cases argues it was not the legislative intent when the prior statute was amended to its present form to require the insurance company to pay an attorney fee when it receives no benefits from the services of the injured person’s attorney. In cases such as these, it argues, the company merely makes a bookkeeping entry. After PIP benefits are paid to the injured insured and the company has determined it is liable by reason of the insurance policy issued to the tortfeasor, it merely changes the PIP money from one pocket to the other. It reimburses itself for PIP payments previously paid. In such cases it needs no assistance from the injured party’s attorney to help it collect the amount of the lien for PIP payments from itself.
As K.S.A. 40-3113 was originally adopted by the legislature in 1973, the statute provided that the injured person’s insurer shall have a lien on the amount of any recovery from a tortfeasor or his insurer to the extent of PIP benefits paid. It further provided that if PIP benefits had previously been paid, then on recovery of damages from the tortfeasor, the claimant should repay to the insurer, out of any amount recovered, a sum equal to that received from the insurer for PIP benefits, but no more than the amount of the recovery, exclusive of reasonable attorney fees and expenses.
This court in Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977), construed the 1973 statute and held that when an attorney for the injured party recovered on a claim against the tortfeasor which included PIP benefits there should be no deduction for attorney fees from the funds to be reimbursed to the PIP insurer.
The Easom decision was filed by this court on January 22, 1977. The legislature, then in session, passed the present statute, K.S.A. 1979 Supp. 40-3113a, which became effective July 1, 1977.
Paragraph (e) of the statute is set out above. In Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979), this court construed the present provisions of this statute and held that an attorney for an injured party, who recovers damages from a tortfeasor from which reimbursement for PIP benefits paid must be made to the PIP insurer, is entitled to be paid attorney fees by the PIP insurer based on the proportionate amounts received by the injured party and the PIP insurance company. Nitchals v. Williams, 225 Kan. at 289.
The specific issue presented by the present cases has never been addressed by this court. The provision of our statute authorizing apportionment of attorney fees is peculiar to Kansas and the decisions of foreign courts are of no benefit in construing our statute. In Russell v. Mackey, 225 Kan. 588, 594, 592 P.2d 902 (1979), this court held that under the provisions of K.S.A. 1979 Supp. 40-3113a when the injured insured settles the entire claim with the tortfeasor the amount of the settlement received is duplicative of PIP benefits which the injured insured has previously received. In such case the PIP carrier has a lien for the full amount of PIP benefits paid out, with two exceptions. Under section (d) there is a comparative negligence reduction for any percentage of negligence attributable to the injured person, and under section (e) there is a reduction for attorney fees claimed for recovery of duplicative PIP benefits.
After examining the statute, and the opinions of this court in Nitchals and Russell, together with Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 608 P.2d 923 (1980), and McNemee v. Farmers Insurance Group, 228 Kan. 211, 612 P.2d 645 (1980), we find no exception mentioned which would justify withholding payment of reasonable attorney fees in cases where a single insurance company represents all parties.
The question raised by appellant is one of statutory construction. Section (e) of the statute makes no exception when one insurance company represents all parties. The fundamental rule for construction of statutes, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute even though words, phrases or clauses might be omitted from the statute. Easom v. Farmers Insurance Co., 221 Kan. at 421-422. The intent of the legislature as shown by this statute is to provide compensation for attorneys for services they perform which have the effect of obtaining reimbursement for PIP benefits paid by the PIP insurer.
In order to adopt the position of Farmers in this case it would be necessary to add a clause to the statute and create an exception. This can only be done if such an exception clearly appears to have been intended by the legislature. Long v. Meade, 162 Kan. 129, 132, 174 P.2d 114 (1946). The legislative intent is clear and there can be no justification for this court to originate an exception. Even if the legislature does not contemplate the occurrence which confronts a court in construing a statute, that court may not supply omissions in a statute. This is true regardless of whether the omission resulted from inadvertence or because the case in question was never contemplated. 82 C.J.S., Statutes § 328, p. 635.
However, the possibility of one company issuing insurance policies to both parties to an accident is clearly foreseeable, and we do not view the lack of an exception to cover such an event to be by legislative oversight. The allowance of attorney fees by statute is placed in the hands of the court, and the reasonable amount of the fee is to be fixed by the court. The control by the court was provided for by the legislature and we see no reason why the cost of services of an attorney should not be apportioned in these cases the same as in others. We hold: The PIP insurer received the benefit of the efforts of the injured insured’s attorney whose efforts brought about the compromise and settlement in a binding legal fashion. K.S.A. 1979 Supp. 40-3113a(e) authorizes and directs a court to fix reasonable attorney fees to be paid proportionately by the insurer and the injured person, and this is true even though one insurance carrier may have insured all relevant persons involved in the accident out of which personal injury protection benefits became due.
BALLWEG ATTORNEY FEE
Ernest C. Ballweg submitted an itemized statement for services rendered for the benefit of the PIP insurer. The statement listed ten hours at $50.00 per hour for a total of $500.00. This amount would seem out of proportion if you consider only the amount of the PIP benefits recovered, $999.23. Farmers contends on appeal the amount of fees charged was unreasonable.
In determining the reasonableness of an attorney fee many things must be taken into consideration in addition to the amount recovered for the PIP insurer. Many times the effort and time expended in compromise and settlement of an insurance claim are increased proportionately to the number of parties interested in a division of the proceeds. The time and energy necessary to successfully settle such a multi-party matter is far greater than would be required if the compromise and settlement is merely one on one.
In the present case the matter of reasonable fees was presented to the trial court. Mr. Ballweg furnished the itemized statement of hourly charges. The insurance company did not contest either the number of hours or the amount of the hourly charge. In view of the record before this court we must approve the trial court’s decision and affirm the allowance as reasonable.
HACKWORTH ATTORNEY FEE
Patrick J. Reardon claimed a fee of one-third the amount of the PIP benefits returned to Farmers as a result of the action which he filed on behalf of Mrs. Hackworth against Mr. Reynolds. The $14,968.96 in PIP benefits had previously been paid by Farmers to Mrs. Hackworth. The fee claimed by Mr. Reardon amounted to approximately $4,989.00 or one-third of the $14,968.96 reimbursement of PIP benefits received by Farmers. On appeal Farmers questions the reasonableness of the fee.
In the Hackworth case there was a dispute at the outset as to the nature and extent of injuries. Mr. Reardon prepared and filed a lawsuit. Discovery evidence was taken and thereafter a settlement was made based upon the policy limits of $30,000.00. When the question of reasonableness of the fee was tried in the court below the work product was available by checking through the records of the court. No evidence was introduced by Farmers to question the extent of the services or the reasonableness of the fee. This court is in no position to say the trial court abused its discretion in setting the fee. We note in the case of Russell v. Mackey, 225 Kan. at 589, a one-third fee was set by the trial court and approved on appeal by this court. In view of the record before this court we feel compelled to approve the trial court’s decision and affirm the allowance as reasonable.
The separate judgments are affirmed in each case. | [
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The opinion of the court was delivered by
Holmes, J.:
Gerald J. Greenlee appeals from convictions in a trial to the court, the Hon. Nicholas W. Klein presiding, of two counts of possession of marijuana and one count of sale of marijuana. K.S.A. 1979 Supp. 65-4127b(a)(3) and 65-4127b(b)(3). He was found not guilty of a second count of sale of marijuana. He also appeals from certain pretrial rulings made in connection with his application to be admitted to the Sedgwick County diversion program administered by the district attorney.
On November 17, 1978, Greenlee allegedly sold, at his home, one ounce of marijuana to Wichita Police Department undercover agent William Boothe. No arrest was made at that time. On June 5, 1979, Boothe again visited defendant at his residence. Boothe was accompanied by another undercover agent, Detective Meyers, and their purpose was to purchase marijuana and arrest Greenlee. Greenlee admitted the two undercover agents to his house and then went to the refrigerator and removed a large bag of marijuana and dumped a portion of its contents into a cardboard box. The bag was replaced in the refrigerator. In the dining room Greenlee measured out an amount of marijuana, using a small scale, and put the measured amount in a small plastic bag. Before he gave the officers the bag he was placed under arrest. Greenlee dropped the bag on the floor and no money ever changed hands. The agents seized the small bag.
Officers then allowed Greenlee to go to the bedroom to change clothes. Detective Boothe seized the cardboard box and the scales which were still on the dining room table. As Greenlee was being returned from the bedroom, Detective Meyers seized a round tray and its contents which were later determined to be marijuana seeds and stems. Boothe also seized the remaining quantity of marijuana from defendant’s refrigerator. Greenlee was charged with one count of possession and one count of sale of marijuana in connection with each incident. At trial on December 5, 1979, the marijuana purchased on November 17, 1978, and the small bag of marijuana, cardboard box, scales and the tray with its contents were admitted in evidence. The large bag of marijuana seized from the refrigerator was suppressed and not admitted in evidence. Greenlee was convicted of sale and possession for the November, 1978, incident and with possession for the June, 1979, incident and acquitted of the sale charge.
During the week of August 6, 1979, Greenlee submitted an application for admission to the pretrial diversion program administered by the office of the Sedgwick County District Attorney. On August 17, 1979, defendant met with Marty Miller, director of the diversion program, and was informed he would not be admitted to the diversion program since it was the policy of the Sedgwick County District Attorney’s Office to exclude all drug offenders from participation in the program. On August 21, 1979, Greenlee was officially notified that his application for diversion had been denied.
Greenlee then filed a motion in district court to compel the district attorney to either admit him to the diversion program or at least comply with the statutes which create the diversion program and provide guidelines for its implementation. K.S.A. 1979 Supp. 22-2906 et seq.
Associate Judge Elliott Fry heard defendant’s pretrial motions and held K.S.A. 1979 Supp. 22-2907 and 22-2908 unconstitutional. He also ruled that the district attorney’s policy excluding all drug offenders from the diversion program did not deny such persons of their right to equal protection and due process.
K.S.A. 1979 Supp. 22-2907 provides:
“22-2907. Diversion agreements authorized; policies and guidelines by district attorney; background information; right to counsel. (1) After a complaint has been filed charging a defendant with commission of a crime and prior to conviction thereof, and after the district attorney has considered the factors listed in K.S.A. 1978 Supp. 22-2908, 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, the district attorney may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the district attorney in accordance with K.S.A. 1978 Supp. 22-2909.
(2) Each district attorney shall adopt written policies and guidelines for the implementation of a diversion program in accordance with this act. Such policies and guidelines shall provide for a diversion conference and other procedures in those cases where the district attorney elects to offer diversion in lieu of further criminal proceedings on the complaint.
(3) Each defendant shall be informed in writing of the diversion program and the policies and guidelines adopted by the district attorney. The district attorney may require any defendant requesting diversion to provide information regarding prior criminal charges, education, work experience and training, family, residence in the community, medical history, including any psychiatric or psychological treatment or counseling, and other information relating to the diversion program. In all cases, the defendant shall be present and shall have the right to be represented by counsel,at the diversion conference with the district attorney.”
K.S.A. 1979 Supp. 22-2908 provides:
“22-2908. Factors to be considered prior to diversion offer. In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider at least the following factors among all factors considered:
(1) The nature of the crime charged and the circumstances surrounding it;
(2) any special characteristics or circumstances of the defendant;
(3) whether the defendant is a first-time offender and if the defendant has previously participated in diversion, according to the certification of the judicial administrator;
(4) whether there is a probability that the defendant will cooperate with and benefit from diversion;
(5) whether the available diversion program is appropriate to the needs of the defendant;
(6) the impact of the diversion of the defendant upon the community;
(7) recommendations, if any, of the involved law enforcement agency;
(8) recommendations, if any, of the victim;
(9) provisions for restitution; and
(10) any mitigating circumstances.”
Judge Fry held that the statutes constituted a legislative encroachment on the executive branch of government and were unconstitutional as a violation of the separation of powers doctrine long recognized in this state. While neither the federal nor Kansas constitution speaks directly to such a doctrine, it has been recognized that the very structure of the federal and state systems of government gives rise to the doctrine.
The doctrine of separation of powers is an outstanding feature of the American constitutional system. The governments, both state and federal, are divided into three branches, i.e., legislative, executive and judicial, each of which is given the powers and functions appropriate to it. Thus a dangerous concentration of power is avoided through the checks and balances each branch of government has against the others. For an excellent discussion of the historical development of the doctrine, see Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973). See also 16 Am. Jur. 2d, Constitutional Law § 277, et seq., p. 764.
The basic meaning of the separation of powers doctrine is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Dreyer v. Illinois, 187 U.S. 71, 47 L.Ed. 79, 23 S.Ct. 28 (1902); Van Sickle v. Shanahan, 212 Kan. 426. It does not necessarily follow, however, that an entire and complete separation is either desirable or was ever intended by the framers of the Constitution. The fact that the powers of one department may overlap with another department’s powers has long been a recognized fact. Throughout the judicial history of this state early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers. State v. Johnson, 61 Kan. 803, 60 Pac. 1068 (1900). The more recent cases have modified the doctrine, taking a more pragmatic, flexible and practical approach giving recognition to the fact there may be a certain degree of blending or admixture of the three powers of government and that absolute separation of powers is impossible. Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975). See also Nixon v. Administrator of General Services, 433 U.S. 425, 53 L.Ed.2d 867, 97 S.Ct. 2777 (1977).
There have been a number of cases in Kansas dealing with the separation of powers and in them the following general principles are established:
(1) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Leek v. Theis, 217 Kan. 784.
(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. Leek v. Theis, 217 Kan. at 785; State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957).
(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department. State, ex rel, v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature; and (d) the practical result of the blending of powers as shown by actual experience over a period of time. State, ex rel., v. Bennett, 219 Kan. 285.
Did the legislature unconstitutionally usurp the power of the executive, i.e. the prosecutor, when it adopted K.S.A. 1979 Supp. 22-2907 and 22-2908?
Judge Fry evidently was of the opinion that the two statutes constituted an unwarranted usurpation of the prosecutor’s power of discretion over whether or not to prosecute an individual charged with commission of a crime. The State argues the prosecution has absolute control and discretion of whether charges shall be filed, a defendant prosecuted or a case dismissed. See State v. Kilpatrick, 201 Kan. 6, 439 P.2d 99 (1968); Foley v. Ham, 102 Kan. 66, 169 Pac. 183 (1917). The discretion whether or not to prosecute has long been the sacred domain of the prosecutor and stems from the common law nolle prosequi. “A nolle prosequi is a formal entry of record by the prosecuting attorney by which he declares that he is unwilling to prosecute a case, or that he will not prosecute a suit further.” 21 Am. Jur. 2d, Criminal Law § 512, p. 503. It has generally been held that “[i]n the absence of a controlling statute or rule of court, the power to enter a nolle prosequi before the jury is impaneled and sworn lies in the sole discretion of the prosecuting officer.” 21 Am. Jur. 2d, Criminal Law § 514, p. 504.
The statutes adopted in 1977 sought to establish a uniform procedure for a function which was already in existence in a number of counties across the state. The statutes do not enable the prosecutor to do anything that could not be done before. The prosecutor has always had the discretion to decide whether to file charges, to enter into plea bargaining, to reduce charges or to dismiss without prosecution. The statutes allow the prosecutor to file charges but postpone trial for a period of time while the accused participates in various rehabilitation programs. If the program is successfully completed, the charge will be dropped. Before the statutes were enacted, the prosecutor could, and many did, agree not to bring charges against an accused on the condition that he complete certain rehabilitation programs. A waiver of the statute of limitations and the right to a speedy trial could be signed and the effect was the same as that now provided by statute. In essence, this is the procedure now followed in Sedgwick County. The district attorney has no written policies or guidelines as required by 1979 Supp. 22-2907 and he does not adhere to the factors set forth in 1979 Supp. 22-2908. Is he required to follow the statutes and, if so, do the mandates of the statutes render them unconstitutional?
We pause to note that here we have the rather unusual situation of a defendant attempting to uphold the constitutionality of certain criminal statutes while the State is seeking to have them declared unconstitutional — an obvious switch from the ordinary case.
One of appellant’s arguments is the decision to divert is a quasi-judicial function and as such is tantamount to pretrial probation and therefore is not inherently within the purview of the executive branch of government. He cites cases from New Jersey and California as support for his argument, but in New Jersey the program was adopted by court rules and in California the statutes provide the courts shall administer the program. See State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977), and People v. Superior Court of San Mateo County, 11 Cal. 3d 59, 113 Cal. Rptr. 21, 520 P.2d 405 (1974). K.S.A. 1979 Supp. 22-2912 provides that the courts may adopt a diversion plan and if they do, the court is then required to follow the guidelines of 1979 Supp. 22-2908. If the program were established by court rule and administered by the courts then, of course, the proceedings would be a judicial function. However, the exercise of a similar function by the prosecutor under 1979 Supp. 22-2907 does not necessarily constitute an unconstitutional delegation of judicial power to the executive branch or an unconstitutional restriction on its executive powers which violates the separation of powers doctrine.
In State, ex rel., v. Bennett, 219 Kan. 285, we set forth certain tests to be applied to an allegation of a violation of the separation of powers doctrine. First, we look to the nature of the power being exercised. As previously indicated, the prosecutor has always had broad power of discretion in matters of determining whether to prosecute an action. The statute does not enlarge that inherent power nor does it destroy or unreasonably restrict it. The power being exercised, admittedly an executive one, is essentially the same with or without the statute, but in the interests of uniformity certain guidelines have been established.
Secondly, when we seek to determine whether the statutes create an unreasonable control on the prosecutor we find the contrary to be true. The control is minimal and the overall effect is merely to make the process of diversion more formal by setting a few procedural standards and establishing some degree of uniformity in procedure. The ultimate decision remains with the prosecutor.
Next, the objective sought by the legislature would appear to be to encourage a uniform procedure to provide an alternative to formal conviction of first-time offenders. The intent is one of rehabilitation and we find nothing offensive in that goal and nothing contrary to the valid objectives of the executive branch.
Lastly, what is the practical effect of the statutes? It would appear the decision to grant diversion still rests largely with the prosecutor. The statutes require certain procedures be adopted and certain factors be considered toward the goal that a more uniform system will prevail throughout the various judicial districts. We discern no detriment to the prosecution and to the contrary uniformity and guidance have now been provided which did not previously exist.
As stated by one author:
“The key factor to this [pretrial diversionary] program seems to be the prosecutor, and there are only general guidelines for the development of the criteria to be used in determining eligibility for diversion in the statute.” Keith G. Meyer, Survey of Kansas Law: Criminal Law and Procedure, 27 Kan. L. Rev. 391, 401 (1979).
There are many statutes enacted by the legislature which provide standards and guidelines to be followed by the executive and judicial branches of government and which have never been considered to be a violation of the separation of powers of the three branches of government. K.S.A. 21-4606 sets forth factors to be considered in fixing minimum terms; K.S.A. 21-4607 establishes factors for imposing fines; K.S.A. 1979 Supp. 38-808 mandates consideration of certain factors in certifying a juvenile for trial as an adult and there are many more. The statutes in question and the examples cited do not fall within the realm of action by the legislature which attempts to control or dictate the internal, administrative functions of the other branches which, of course, would be a clear encroachment upon and violation of the separation of powers doctrine. We hold that K.S.A. 1979 Supp. 22-2907 and 22-2908 are constitutional and do not violate the separation of powers doctrine. The district attorney should take immediate steps to bring his program into compliance with the statutes.
Appellant next presents several arguments asserting his constitutional rights to due process and equal protection have been violated due to the policy of the district attorney in not considering drug offenders for diversion; the failure of the district attorney to have a written program; the failure of the district attorney to follow the guidelines of 1979 Supp. 22-2908; the failure of the district attorney to give specific reasons for denying diversion; the failure of the court to order diversion, etc. While it is true the district attorney did not follow the statutory procedure and while we have found the statutes to be constitutional, we fail to find where the constitutional rights of the appellant have been violated. There is no statutory right of any defendant to be granted diversion and certainly there was no such right at common law. The statutes merely establish a procedure to be followed by the county or district attorney and certain factors which are to be considered if diversion is to be considered. The prosecutor, after following the procedures and considering all the factors “may propose a diversion agreement to the defendant.” The prosecutor is not required to propose diversion to any defendant.
Our statutes were patterned after those of the State of Oregon. Or. Rev. Stat. 135.881 et seq. The Oregon court has held adversely to the arguments of appellant in State v. Haas, 43 Or. App. 169, 602 P.2d 346 (1979).
In State v. Haas the plaintiff was indicted for a Class A felony. The district attorney refused to consider plaintiff for diversion under Or. Rev. Stat. 135.881 et seq., because it was his policy not to divert persons charged with Class A felonies. On appeal plaintiff contended that Or. Rev. Stat. 135.886 established a right for all persons charged with crimes to be considered for diversion in light of the specific factors listed in subsection (2). Those factors are almost identical to those found in K.S.A. 1979 Supp. 22-2908.
In rejecting plaintiff’s argument that Or. Rev. Stat. 135.886 created a right in him to be considered for diversion, the Court of Appeals of Oregon held:
“If a district attorney’s decision is discretionary, he necessarily must have authority to regard any particular factor or combination of factors — including but not necessarily limited to those specified in ORS 135.886(2) — as being dispositive for or against diversion. Nothing in ORS 135.886(2) suggests that the district attorney must weigh the factors listed in that subsection in a particular way, or that he cannot give decisive weight to any one or any combination of the factors in arriving at a decision regarding diversion.
“A particular district attorney might conclude that he will never exercise his discretion by offering diversion to persons charged with particular kinds of offenses, e.g., offenses of a given degree (such as Class A felonies), or offenses which he feels are susceptible to and in need of deterrence (such as shoplifting). ORS 135.886(2)(a) provides that one of the factors for the district attorney to consider is ‘[t]he nature of the offense.’ If the district attorney has decided that he will never offer diversion in cases involving offenses committed in a particular manner, the subsection would be rendered absurd by an interpretation which requires, in cases where such offenses are involved, that he consider all of the factors it enumerates when one of the factors conclusively determines how he will exercise his discretion.
“[1] According to plaintiff’s allegations, the above example precisely duplicates the facts here. The district attorney has decided that persons charged with Class A felonies will not be diverted. We do not construe the statute as requiring him to perform the futile gesture of considering the other nine factors enumerated in ORS 135.886(2) when his decision not to divert is and properly can be based on the single factor specified in ORS 135.886(2)(a).
“[2] In addition to his statutory argument, plaintiff contends that he has been denied equal protection (U.S. Const., Amend. XIV; Or. Const., Art. I, § 20) and due process (U.S. Const., Amend. XIV) by defendant’s refusal to consider him for diversion. As we understand plaintiff’s constitutional arguments, both presuppose the existence of the statutory right which we have concluded the legislature has not conferred on him.” State v. Haas, 43 Or. App. at 169.
Faced with a similar question, the Superior Court of Pennsylvania upheld a district attorney’s policy of denying diversion to drunk drivers. The court recognized that the State, in the exercise of its police powers, may single out a class of persons for distinctive treatment if the classification bears a rational relation to the purpose of the policy being administered. Gladen v. State, 196 Kan. 586, 413 P.2d 124 (1966); Oyler v. Boles, 368 U.S. 448, 7 L.Ed.2d 446, 82 S.Ct. 501 (1962); Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 65 S.Ct. 1064 (1886). The Superior Court of Pennsylvania therefore held that the classification of drunken drivers as undesirable for diversion was reasonable because of the serious threat these people posed to the general public. Com. v. Kindness, 247 Pa. Super. Ct. 99, 371 A.2d 1346 (1977).
The rationale of Haas and Kindness is persuasive. The prosecutor, although possessing wide discretion is not immune from judicial review of the exercise of that discretion for arbitrariness. Bordenkircher v. Hayes, 434 U.S. 357, 54 L.Ed.2d 604, 98 S.Ct. 663 (1978); State v. Addington, 198 Kan. 228, Syl. ¶ 4, 424 P.2d 871 (1967). Considering the seriousness of the drug problem in society today, particularly its devastating effect upon young people, we cannot say the district attorney abused his discretion in determining not to offer diversion to drug offenders. We find no violation of appellant’s constitutional rights to due process and equal protection and no merit to any of appellant’s constitutional arguments about the pretrial diversionary procedures as they affected him.
We now turn to the trial errors asserted by appellant. Appellant first contends it was error for the court not to dismiss the count of possession of marijuana of which he was convicted because it is multiplicitous in that possession is a lesser included offense of sale of marijuana. In State v. Woods, 214 Kan. 739, 522 P.2d 967 (1974), we considered the identical argument and held adversely to it. See also State v. Nix, 215 Kan. 880, 529 P.2d 147 (1974). We adhere to our decision in Woods.
Next, appellant claims error in the failure of the court to suppress as evidence the cardboard box, the scales and the tray with its contents of marijuana seeds and stems. All the items were in the plain view of the officers who were effecting a valid arrest and.had a right to be in the position to see the items.
In Harris v. United States, 390 U.S. 234, 236, 19 L.Ed.2d 1067, 88 S.Ct. 992 (1968), the U.S. Supreme Court stated:
“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.”
See State v. Goodman, 3 Kan. App. 2d 619, 599 P.2d 327 (1979); State v. Schur, 217 Kan. 741, 538 P.2d 689 (1975); and State v. McMillin, 206 Kan. 3, 476 P.2d 612 (1970). The argument lacks merit.
Finally, appellant contends there was insufficient evidence to support the convictions. We have reviewed the record and find overwhelming evidence to adequately meet the test of State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979), and Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979).
The judgment of the district court finding K.S.A. 1979 Supp. 22-2907 and 22-2908 unconstitutional is reversed and the judgment of the district court as to the convictions of the appellant is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This case arose out of Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976). Guarantee (appellee and cross-appellant) sued Interstate (appellant and cross-appellee) to recover the judgments and expenses assessed against it in Ford. Guarantee alleges the errors and omissions indorsement on Guarantee’s liability insurance policy issued by Interstate covers punitive damages. Guarantee also alleges Interstate was guilty of bad faith and negligence in the defense of Guarantee in Ford. The trial court found for Guarantee on the first count and for Interstate on the second. Both parties appeal.
In Ford, Guarantee and its principal, Chicago Title Insurance Co., were found liable for the negligent and reckless acts of Carl Zimmerman, vice-president of Guarantee, for failing to obtain a deed in exchange for the payment of the purchase price and for failing to issue a title policy or return the purchase price as demanded by the Fords. The jury returned a verdict of $8,687.65 compensatory damages against each, Guarantee and Chicago, and punitive damages in the amount of $35,000 against Guarantee and $70,000 against Chicago. Guarantee and Chicago Title requested Interstate to appeal the decision, but Interstate refused to represent them. They obtained other counsel and appealed to this court. We affirmed the award of compensatory damages and reduced the punitive damages by one-half against both Guarantee and Chicago Title. The judgments were satisfied by the two parties and, on December 3, 1976, Chicago Title demanded indemnification of its judgment and expenses from Guarantee. Guarantee issued a promissory note to Chicago Title in the amount of $55,537.10 on December 24, 1976. No payments have been made on the note.
This action was filed December 17, 1976. Guarantee alleged that as agent for Chicago Title it was liable for both its own judgment and that of Chicago Title. It further alleged Interstate had issued a policy of insurance without being licensed to do business in Kansas and had paid only $5,236.86 on the judgments. Guarantee alleged in count one of the petition that Interstate was liable for all actual and punitive damages against Guarantee and Chicago Title under the terms of the insurance policy. Count two of the petition alleged Interstate was guilty of negligence and bad faith in its defense of Guarantee in the prior action and prayed Interstate be required to pay the entire judgment and for punitive damages in the amount in excess of $10,000. The trial court removed the case from the jury’s consideration and directed a verdict for Guarantee on count one and for Interstate on count two. This appeal followed.
The trial court found punitive damages had been awarded against Guarantee and Chicago Title in Ford based upon Zimmerman’s reckless conduct and reasoned that conduct was covered under the policy. The trial court also found Zimmerman’s actions were not committed maliciously, nor had the corporation ratified his acts, and the court stated a finding of malice or evidence of corporate ratification of Zimmerman’s actions were the sole exceptions that would exclude coverage under the policy. Interstate maintains the trial court erred in construing the policy to provide coverage for punitive damages and cites as error the trial court’s interpretation of the policy to cover reckless conduct and its failure to apply policy exclusions. More importantly, Interstate advances a lengthy argument detailing public policy considerations regarding insurance against punitive damages. Our discussion of this issue will center around public policy considerations.
The trial court predicted Kansas appellate courts would adopt an exception to the general view prohibiting coverage for punitive damages based upon public policy grounds. The exception was discussed as dicta in Northwestern National Casualty Company v. McNulty, 307 F.2d 432 (5th Cir. 1962). The court in that case noted where an insured becomes vicariously liable as a result of the actions of his servant, agent or employee, the insured is permitted to protect himself with insurance. The court reasoned “if the employer did not participate in the wrong the policy of preventing the wrongdoer from escaping the penalties for his wrong is inapplicable.” Northwestern at 440. Inasmuch as the court found punitive damages were assessed against Guarantee as a result of the actions of its employee Zimmerman, the trial court applied the above stated exception and found punitive damages could be covered under the policy.
At the outset, we wish to point out the trial court erred in finding Guarantee’s liability was incurred solely as a result of the actions of Carl Zimmerman. Guarantee’s culpability was noted by this court in Ford at 265:
“In our opinion the evidence in this case warranted a substantial award of punitive damages. The evidence disclosed Chicago Title to have a net worth in excess of $31 million, and Guarantee to have a net worth in excess of $336 thousand. The continued refusal of these substantial companies to issue a title policy or return the Fords’ money, after admittedly disbursing the same in violation of their fiduciary instructions, and in violation of the cardinal rule of title practice, was, to say the least, such gross neglect of duty as to evince a reckless indifference of the rights of the Fords . . . .”
This is not, therefore, solely a case of vicarious liability. Consequently, the rule allowing insurance coverage for punitive damages in such cases is not applicable here. Nevertheless, we reject such a rule, regardless of whether liability is incurred vicariously or directly. It is against the public policy of this state to allow a wrongdoer to purchase insurance to cover punitive damages (Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 507 P.2d 189 [1973]), and we interpret that rule to include any person who has incurred such liability regardless of whether the liability resulted from the insured’s own acts or those of his employee, servant or agent.
In light of our rejection of coverage for punitive damages, we deem it unnecessary to address Interstate’s arguments concerning the trial court’s interpretation of specific policy language.
Interstate claims the trial court erred in finding the promissory note issued by Guarantee to Chicago Title to be enforceable. Interstate argues the note is “illusory” because Guarantee has made no payments on it and there is no evidence the note is an actual obligation. Interstate further argues if Guarantee recovers anything it should be allowed to recover only the punitive damages assessed against Guarantee, and not those damages assessed against Chicago Title and assumed by Guarantee. All parties are in agreement that Chicago Title, as principal, is entitled to indemnification from its wrongdoing agent, Guarantee. The primary question is whether a demand note executed by Guarantee to Chicago Title for the amount to be indemnified constitutes payment. Interstate relies on Badger Lumber & Coal Co. v. Brown, 124 Kan. 255, 258, 259 Pac. 786 (1927), where the court stated:
“[T]he giving of a note for an existing indebtedness is not a payment or discharge of the indebtedness unless it is made so by the agreement of the parties.”
A careful review of the record reveals Guarantee and Chicago Title intended the note to discharge the debt. Interstate has produced no evidence to indicate otherwise; consequently, its argument cannot stand.
Appellant’s remaining issues pertaining to the trial court’s judgment in favor of Guarantee for costs and expenses of the appeal in Ford and for attorney fees in the case at bar will be discussed in our decision on Guarantee’s cross-appeal.
Guarantee’s cross-appeal questions whether the trial court erred in directing a verdict for Interstate on count two of the petition alleging Interstate was guilty of negligence and bad faith in its defense of Guarantee in Ford. Guarantee alleges Interstate failed to initiate settlement of the case, although it was aware of the hazards of the case. In particular, Guarantee cites as negligent conduct Interstate’s knowledge that the lawsuit could have been initially settled by payment of the balance of the purchase price or conveyance of the property to the Fords. Guarantee alleges Interstate failed to act on that knowledge or to initiate a settlement for a period of two years. Additionally, Interstate failed to settle the case at the pretrial conference. Guarantee also argues Interstate did nothing to prevent the development of facts and circumstances upon which a judgment for punitive damages could be awarded against Guarantee, and Interstate’s delay in resolving the law suit added to the amount of punitive damages ultimately awarded. Finally, Guarantee argues Interstate acted in bad faith in refusing to appeal the judgment in Ford on behalf of Guarantee.
We will first consider a liability insurer’s duty to its insured in settlements and representation. In Bollinger v. Nuss, 202 Kan. 326, 333, 449 P.2d 502 (1969), this court stated:
“[A] liability insurer, having assumed control of the right of settlement of claims against the insured, may become liable in excess of its undertaking under the policy provisions if it fails to exercise good faith in considering offers to compromise the claim for an amount within the policy limits. . . . Public policy dictates that the insured’s interests be adequately protected, and we believe this may be best accomplished by holding that both due care and good faith are required of the insurer in reaching the decision not to settle.”
The court in Bollinger stated that an insurer must give consideration to the interests of the insured equal to that consideration it gives its own interests. The good faith test requires that the insurer “view the situation as it would if there were no applicable policy limits.” Bollinger at 338.
In Coleman v. Holecek, 542 F.2d 532 (10th Cir. 1976), the Tenth Circuit discussed the duty of an insurer to initiate settle ment negotiations absent an offer from the plaintiff. Holecek, who had an automobile policy with Allstate, was in an accident with Coleman. Coleman sued Holecek. Allstate appeared to assume control of the suit, but later withdrew, claiming Holecek had cancelled his policy and Allstate was not responsible for the suit. The trial court entered judgment against Holecek for both compensatory and punitive damages. Coleman sued Allstate in a garnishment proceeding alleging Allstate wrongfully and in bad faith refused to defend Holecek. The trial court held Allstate was grossly negligent and acted in bad faith and entered judgment against Allstate in the amount that had been entered against Holecek, although that amount exceeded policy limits. The court recognized that the Kansas appellate courts had not spoken directly to an insured’s duty to explore the possibility of settlement but reasoned that Bollinger and Rector v. Husted, 214 Kan. 230, 519 P.2d 634 (1974), indicated the insured’s situation must be given equal consideration. The court in Coleman v. Holecek, 542 F.2d at 537, stated:
“The duty to consider the interests of the insured arises not because there has been a settlement offer from the plaintiff but because there has been a claim for damages in excess of the policy limits. This claim creates a conflict of interest between the insured and the carrier which requires the carrier to give equal consideration to the interests of the insured. [Citation omitted.] This means that ‘the claim should be evaluated by the insurer without looking to the policy limits and as though it alone would be responsible for the payment of any judgment rendered on the claim.’ [Citation omitted.] When the carrier’s duty is measured against this standard, it becomes apparent that the duty to settle does not hinge on the existence of a settlement offer from the plaintiff. Rather, the duty to settle arises if the carrier would initiate settlement negotiations on its own behalf were its potential liability equal to that of its insured.”
These cases indicate plaintiff Guarantee could have a good cause of action against Interstate in its tort action. It appears undisputed that Interstate never authorized its counsel Schmidt to initiate settlement negotiations and never attempted to approach the Fords on that subject. The remaining evidence on both sides is conflicting, with both sides accusing each other of crucial delays and unyielding stubbornness in settlement negotiation.
The issue of an insurer’s duty to appeal is one of first impression in Kansas. The insurance policy in this case contained the standard “duty to defend” clause:
“[A]nd the Company shall have the right and duty to defend in his name and behalf any sit against the Insured alleging damages, even if such suit is groundless, false or fraudulent . . . .”
It is generally accepted that this duty to defend clause does not necessarily obligate the insurer to prosecute an appeal. Reichert v. Continental Insurance Company, 290 So.2d 730 (La. App. 1974); Fidelity General Insurance Co. v. Aetna Ins. Co., 27 App. Div. 2d 932, 278 N.Y.S.2d 787 (1967); General Casualty Company of Wisconsin v. Whipple, 328 F.2d 353 (7th Cir. 1964). See 44 Am. Jur. 2d, Insurance §§ 1536, 1537, p. 416-418. A case with facts similar to the instant case is Hawkeye-Security Ins. Co. v. Indemnity Ins. Co., 260 F.2d 361 (10th Cir. 1958). In that case, the court considered whether Hawkeye was guilty of bad faith in refusing to appeal on behalf of its insured. Indemnity, the excess coverage carrier, appealed on behalf of the insured. Indemnity paid the judgment and sued Hawkeye, claiming Hawkeye breached its contract by refusing the advice of its counsel and not appealing. The trial court held Hawkeye was guilty of a breach of duty by refusing to take its counsel’s advice. The Tenth Circuit held failure to follow the advice of counsel, alone, was not sufficient to show breach of duty but would be so if the insurer acted fraudulently or in bad, faith. Hawkeye-Security Ins. Co. represents the majority view enunciated more recently by Reichert v. Continental Insurance Co., 290 So.2d at 733:
“[T]he majority of jurisdictions hold that the obligation of an insurer to defend its insured is not absolute, and does not necessarily include the duty of prosecuting an appeal on the insured’s behalf even though a judgment is rendered against the insured in excess of the insurer’s policy limits. The test employed by the majority is one of good faith and fair dealing on the part of the insurer judged in the light of the rights of the insured as well as those of the insurer.”
A minority of jurisdictions hold where there appear reasonable grounds for appeal, an insurer’s obligation to defend extends to appeal a judgment adverse to the insured. See Chrestman v. United States Fidelity & Guaranty Co., 511 F.2d 129 (5th Cir. 1975); Ursprung v. Safeco Insurance Co., 497 S.W.2d 726 (Ky. 1973); Home Insurance Co. v. Royal Indemnity Co., 68 Misc. 2d 737, 327 N.Y.S.2d 745 (1972); Travelers Indemnity Company v. East, 240 So. 2d 277 (Miss. 1970); Fidelity Gen. Ins. Co. v. Aetna Ins. Co., 27 App. Div. 2d 932; Kaste v. Hartford Accident & Indemnity Company, 5 App. Div. 2d 203, 170 N.Y.S.2d 614 (1958); Arenson v. National Auto. & Cas. Ins. Co., 48 Cal. 2d 528, 310 P.2d 961 (1957).
We think the majority view logical and just; although we have held Interstate is not liable for punitive damages under the policy, we do not look with favor upon an insurance company that abandons its insured and refuses to appeal, relying on its immunity from a claim for punitive damages. The trial court, although sustaining Interstate’s motion for directed verdict as to count two, found Interstate should have appealed on behalf of Guarantee and awarded costs of the appeal to Guarantee. We affirm that finding with the additional order that the jury be allowed to determine damages on remand.
In considering Guarantee’s cross-appeal from a directed verdict in favor of Interstate, we are bound by the following rule from Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977):
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict.”
See also Apperson v. Security State Bank, 215 Kan. 724, 732, 528 P.2d 1211 (1974), and Moore v. Francisco, 2 Kan. App. 2d 526, 583 P.2d 391 (1978).
Resolving facts and inferences drawn from the evidence in favor of Guarantee, we find certain questions in count two of Guarantee’s petition must be submitted to the jury. Before closing, it is important to clarify the actual questions to be submitted for jury determination. As stated earlier, there are basically two issues in count two: failure of Interstate to settle the case and failure to prosecute an appeal on behalf of Guarantee. Although the trial court directed a verdict for Interstate, holding Interstate did not have a duty to settle, it later stated Interstate did have a duty to appeal the case and awarded Guarantee the costs of appeal. We are loath to disturb the trial court’s finding regarding the duty to appeal. Therefore, pursuant to Guarantee’s original petition, the questions for jury determination are whether Interstate had a duty to settle and, if so, the damages for such a breach of duty. Additionally, the jury must determine the damages for Interstate’s failure to appeal the case on behalf of Guarantee.
Regarding the issue of attorney fees awarded to Guarantee pursuant to K.S.A. 40-256: the trial court made the award because he warned both parties in his initial memorandum decision that he would rely on the McNulty exception and hold Interstate liable for the award of punitive damages. Therefore, he reasoned defendant’s failure to settle the claim at that time was without just cause or excuse. We do not find that Interstate’s failure to settle the claim at that time warrants the imposition of attorney fees. In January, 1978, the date of the initial memorandum decision, this court had not ruled on the McNulty exception. We find the question was an issue of first impression and the dispute was at that time a good faith controversy. See Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 452, 517 P.2d 173 (1973). This holding is confined only to the question of imposition of attorney fees and does not bear upon our later discussion of the duty to settle.
We reverse the judgment of the trial court on both counts and remand the case for a new trial on count two pursuant to the rulings herein set forth.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
This is a direct appeal of a conviction of murder in the first degree, after the first conviction had been reversed by this court in State v. Cady, 248 Kan. 743, 811 P.2d 1130 (1991) (Cady I). On appeal, defendant claims that double jeopardy barred retrial and there was not substantial competent evidence to support the finding his confession was made knowingly and voluntarily.
The first trial
Cady, 16 years old at the time of the offense, stabbed and killed his girlfriend. Cady turned himself in, waived his Miranda rights, and made several statements, including a videotaped confession. The videotaped confession was admitted into evidence at his trial. Cady was convicted of first-degree murder and then appealed, claiming: (1) he should have been tried as a juvenile; (2) an instruction on diminished capacity should have been given; and (3) prosecutorial and juror misconduct violated his right to a fair trial. This court found no error on the first two grounds but reversed Cady’s conviction due to prosecutorial misconduct.
The prosecutors’ misconduct started on the second day of the first trial, during a recess. A police detective, who was assisting the prosecutors, overheard a juror remark;. “ ‘That son-of-a-bitch [Cady] is guilty as hell.’ ” The detective immediately informed the prosecutors of the remark. One prosecutor stated to the detective such conduct would require a mistrial. The prosecutors, however, took no immediate action.
The next day, after the jury began deliberations, the prosecutors, without the presence of the defendant or his counsel, informed the judge of the juror’s statement. The judge allowed the jury to continue deliberations and, without informing the defense of the problem, asked if either party objected to discharge of the alternate jurors. The defense agreed the alternates could be discharged. The jury subsequently found Cady guilty of first-degree murder. After the jury was excused, the judge informed the defense counsel of the juror’s remark, but the record was unclear whether the trial judge thought the defense had already been made aware of the problem. Cady moved for a new trial on grounds of juror and prosecutorial misconduct, but his request was denied. On appeal, we found the prosecution had violated Cady’s right to a fair trial by failing to inform the defense it knew of possible juror misconduct, and we reversed the conviction.
The second trial
The following evidence was admitted at the second trial: Cady had been dating Melissa Brown. Melissa’s parents had told her she had to stop seeing Cady. The day before the homicide, Melissa broke up with Cady. Melissa told a teacher at her high school that Cady had threatened to kill her. Cady’s anger at Melissa escalated, and he erupted and ended up being expelled from school. On the day in question, Melissa’s stepfather, after arriving home from work, heard Melissa scream. He went to the bedroom. He saw Cady holding his stepdaughter with one hand and holding a knife in the other hand. The stepfather asked what Cady was doing. Cady replied, “This is what I am here for.” Cady then stabbed Melissa. The stepfather ran downstairs to get his gun and to call the police.
Cady, covered with blood, ran from the house and went to a nearby residence. He told someone at the residence that he had just killed his girlfriend. Cady used the phone to call a family friend and stated over the phone that he had just killed his girlfriend.
A detective responded to the call. Cady walked up to the detective and said he was the one the police were looking for. He told the detective he had just stabbed his girlfriend. Cady was arrested and advised of his constitutional rights as required by Miranda. Cady stated that he understood his rights. Cady was taken to the police station and again advised of his constitutional rights. After signing a waiver of rights form, he again confessed. This confession was videotaped and admitted into evidence.
At trial, Cady testified in his own defense. He stated that after the incident at school, he decided to run away to California with Melissa. He took the knife to protect himself and Melissa if anyone tried to stop them. After Melissa’s sister let him in the house, he stayed to wait for Melissa. When he heard Melissa’s stepfather come into the house, Cady hid in Melissa’s bedroom closet. After Melissa came into the room, Cady opened the closet door. Melissa screamed and began to fight Cady. As Cady attempted to calm Melissa down, she grabbed the knife and it went into her shoulder. Cady stated that Brown’s stepfather then came into the room and asked him what he was doing.
Cady testified that at this point he saw Melissa was in great pain and she had a puzzled look. He testified that he knew that his girlfriend could not “comprehend what had just happened,” so he continued to stab her in the chest. Cady then stated that he had intended to commit suicide but when he heard the police sirens he left the Browns’ house. On cross-examination, Cady admitted that he had killed Melissa by stabbing her several times. Cady knew who he had killed and that what he had done was wrong.
I. DOES DOUBLE JEOPARDY BAR RETRIAL?
The Double Jeopardy Clause of the United States Constitution protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The language of § 10 of the Kansas Constitution Bill of Rights is very similar to the language contained in the Fifth Amendment to the United States Constitution. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does § 10 of the Kansas Constitution Bill of Rights. Therefore, the underlying protection contained in the Double Jeopardy Clause of the United States Constitution is contained in § 10 of the Kansas Constitution Bill of Rights.
In order to implement and define the constitutional guarantees against double jeopardy, the Kansas Legislature enacted two statutes: (1) K.S.A. 21-3107, multiple prosecutions for the same act; and (2) K.S.A. 21-3108, effect of former prosecution. K.S.A. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limitations upon unfair multiplicity of convictions and prosecutions. K.S.A. 21-3108 attempts to cover the complex problems of former jeopardy. State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984).
Cady acknowledges that reversal of a conviction does not automatically bar retrial, particularly when the retrial results from a defendant’s request for mistrial. Cady contends, however, that when the mistrial is caused by prosecutorial misconduct which provokes a defendant into requesting the mistrial, double jeopardy bars retrial. Cady asserts that although reversal of his first trial (Cady I) did not involve a mistrial, he was unable to request a mistrial but was required to move for a new trial in the district court because he was not informed of the juror’s i'emark until he had been convicted and the jury had been excused.
Cady admits his trial counsel never raised the issue of double jeopardy to the trial court in his second trial.’ Cady argues that even though a double jeopardy claim was not raised in the district court, this is an issue of constitutional magnitude, a question of law, and, in the interest of judicial economy, his claim of double jeopardy should be considered in this appeal rather than in a separate K.S.A. 60-1507 action claiming ineffective assistance of counsel.
The State argues Cady’s failure to raise the double jeopardy claim at trial waives that defense, citing Cox v. State, 197 Kan. 395, 416 P.2d 741 (1966). Cox had been tried and convicted, and his conviction was reversed; prior to retrial, he pled guilty. While in the penitentiary, Cox filed a motion in the district court that collaterally attacked his conviction on double jeopardy grounds. The district court found the prohibition against double jeopardy had been violated and vacated the sentence. The State appealed. The Cox court reversed the district court, noting that the defendant had failed to affirmatively raise the defense of double jeopardy in his original appeal, and after his conviction had been reversed on other grounds he entered a plea of guilty to a lesser included offense. The Cox court noted that even if double jeopardy was raised as a defense, it was abandoned by a subsequent plea of guilty. See State v. Carte, 157 Kan. 673, 143 P. 2d 774 (1943). It determined that either action by Cox constituted a waiver of the defense of double jeopardy under prior decisions of both Kansas and federal courts.
We agree that issues may be raised on appeal for the first time where consideration is necessary to prevent a denial of fundamental rights. See State v. Puckett, 230 Kan. 596, 601, 640 P.2d 1198 (1982). In State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984), the issue raised for the first time on appeal was whether a conviction was multiplicitous. This court specifically noted that allowing a multiplicitous conviction to stand violated Dubish’s fundamental right to a fair trial. Neither Puckett nor Dubish control, but to prevent a future claim that ineffective assistance of counsel denied Cady his fundamental right not to be placed twice in jeopardy, we will consider the issue.
Both sides cite as authority for their position Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982). Kennedy had been charged with theft. A series of sustained objections prevented the prosecutor from eliciting certain testimony. The prosecutor returned to the well one more time and asked the witness if the reason he had never done business with the defendant was because the defendant was a crook. The- court granted the defendant’s motion for a mistrial. Prior to his second trial, Kennedy unsuccessfully .argued to the trial court that double jeopardy barred retrial. He was retried and convicted. He appealed that conviction. The Oregon Court of Appeals found the double jeopardy protection of the United States Constitution barred his retrial because the prosecutor’s conduct in the first trial was “overreaching.”
The United States Supreme Court reversed the Oregon Court of Appeals and remanded for further proceedings, but noted there is a narrow exception to the general rule that where the defendant requests the mistrial, double jeopardy does not bar a subsequent retrial. It held that double jeopardy only bars retrial, after a request for mistrial by the defendant is granted, where the prosecutor has intentionally provoked the defendant’s request for mistrial.
Citing U.S. v. Rios, 637 F.2d 728, 729 (10th Cir. 1980), cert. denied 452 U.S. 918 (1981), Cady argues the rule in Kennedy should be extended to cover situations where there is a reversal of a defendant’s conviction by an appellate court due to prose-cutorial misconduct. Cady contends the application of the rule should not depend on which court, i. e., trial or appellate, reverses a defendant’s conviction because of prosecutorial misconduct.
In Rios, the defendant’s motion for mistrial was denied by the trial court, but that decision was reversed on appeal by the 10th Circuit. Although Rios was decided before Kennedy, the 10th Circuit recognized the exception to the general rule that a mistrial requested by the defendant does not bar a second trial under double jeopardy where the prosecutor provokes the defendant’s request for mistrial, and determined that it made no difference in applying the rule whether the trial court or the appellate court granted the defendant’s motion for mistrial. The 10th Circuit affirmed Rios’ conviction, however, because there was no intent by the prosecutor to provoke Rios’ request for a mistrial.
Kennedy applies to situations where the defendant’s request for mistrial was inevitable because the prosecution subverted the defendant’s right to a fair trial. Applying Kennedy to our factual situation, we find the prohibition against double jeopardy does not apply because Kennedy requires that the prosecution intended to goad the defendant into seeking a mistrial. The record in Cady I indicates the prosecution was aware the juror’s remark could be grounds for a mistrial if brought to the attention of the judge. There is no evidence the prosecutors intentionally influenced the juror, thus provoking Cady to request a mistrial.
The constitutional interest protected by Kennedy is that a defendant should be allowed to freely choose whether he or she should request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into the choice, the choice is not freely made, and the prosecution has subverted the defendant’s rights protected by the Double Jeopardy Clause of the Constitution.
It is incumbent on the appellant to furnish a record to support the claim of error. State v. Richard, 252 Kan. 872, 874, 850 P.2d 844 (1993). Nothing in the record on appeal supports a conclusion the prosecutors intended to provoke a mistrial in the first trial; therefore, double jeopardy does not bar Cady’s second trial and conviction.
II. CADY’S VIDEOTAPED CONFESSION
Cady claims the trial court erred by admitting his videotaped confession into evidence at the second trial because he did not knowingly and voluntarily waive his rights under Miranda. Although the tapes had also been admitted at the first trial, that issue was not raised in the appeal of Cady I. Cady objected to the admission into evidence of the videotapes at the second trial.
The State, citing State v. Neer, 247 Kan. 137, 795 P.2d 362 (1990), contends that after a remand issues not raised in the initial appeal are waived in any subsequent appeals. In Neer, after being convicted of aggravated criminal sodomy, Neer was sentenced by the district court. He appealed only his sentence. We affirmed the sentence imposed. Neer’s subsequent motion to the district court to modify the sentence was denied. Neer then appealed the denial of his motion to modify and also sought reversal of his conviction for aggravated criminal sodomy, claiming that the evidence was insufficient.
Neer had not raised the evidentiary issue before the trial court or in his first appeal. The State argued Neer’s sufficiency of evidence issue was not properly before the appellate court because he had failed to raise that issue at trial and in his first appeal. We noted that the general rule in Kansas is that piecemeal appeals are frowned upon. 247 Kan. at 140 (citing State v. Newman, 235 Kan. 29, 31, 680 P.2d 257 [1984]). We acknowledged that a point not raised before, or presented to, the trial court cannot be raised for the first time on appeal. 247 Kan. at 140 (citing State v. Heck, 8 Kan. App. 2d 496, 502, 661 P.2d 798 [1983]).
We determined that for Neer to appeal his original conviction for aggravated criminal sodomy, he must do so within 120 days of the imposition of sentence plus the 10 additional days granted under K.S.A. 22-3608(1). Neer had 130 days from the day he was sentenced to appeal the conviction. See State v. Tripp, 237 Kan. 244, 246, 699 P.2d 33 (1985). More than 130 days had expired between Neer’s sentencing and his appeal. We found under Kansas law, where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised. Those issues that could have been presented in the appeal, but were not presented, are deemed waived. 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.
Cady asserts the State’s contention that this issue has been waived is an unwarranted expansion of Neer. Cady claims that Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 679 P.2d 206 (1984), requires a different result than Neer under the circumstances of this case. That case involved restrictive covenants in a contract of employment. The trial court found the covenants reasonable. An appeal was taken but not from that ruling. The Court of Appeals reversed and remanded on the issues appealed. After the trial court ruled on remand, the matter was again appealed. The second appeal challenged the reasonableness of the restrictive covenants. Although failing to raise an issue generally bars review, this court found the issue of reasonableness was not relevant in the initial appeal and the issue could be raised after remand in the second appeal.
Cady argues that reversal of his first conviction “re-cloaked” him with the presumption of innocence and a refusal to review an error that occurred in the second trial would be unfair. Cady asserts adoption of the State’s interpretation of Neer would, to preserve an issue for a possible second appeal, require the defendant to raise every issue possible, no matter how weak, in the initial appeal.
We disagree with the State’s analysis of Neer. Neer does not state that failure to raise an issue in the first trial or on appeal bars raising the same issue that also arises in a subsequent trial. Under the circumstance’s of this case, the issue whether or not it was error to admit the videotaped confession into evidence is properly before us on appeal and can be addressed.
At a pretrial hearing before the first trial, Cady claimed he had not knowingly and voluntarily waived his right to remain silent prior to making the videotaped confession to the police. The trial court overruled Cady’s objection to the admission of his videotaped statement. To support suppression of that statement, Cady relies on the totality of the circumstances surrounding the confession and not on evidence adduced at the suppression hearing. Cady contends that “[i]n light of [his] age and severe mental condition, it cannot be said” the confession was made knowingly and voluntarily.
In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court held the prosecution cannot use statements, whether inculpatory or exculpatory, stemming from custodial interrogation, unless it proves that procedural safeguards were used to secure the defendant’s privilege against self-incrimination. These safeguards include informing the person in custody, prior to interrogation, of his or her Fifth Amendment rights to remain silent, to consult with an attorney, and to have an attorney present during interrogation. Further, if the person in custody states that he or she wants an attorney, all questioning must cease until the attorney is present. 384 U.S. at 444-45. State v. Leroy, 15 Kan. App. 2d 68, 70, 803 P.2d 577 (1990).
In determining whether an accused’s confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence. State v. Perkins, 248 Kan. 760, 764, 811 P.2d 1142 (1991).
In support of his claim, Cady points to the fact that he was 16 at the time he gave the statement. He had previously been diagnosed by Dr. Sweetland, a clinical psychologist who evaluated Cady’s competency to stand trial, as schizophrenic. It was Sweet-land’s opinion that the “slight rocking behavior” Cady exhibits in the videotape of his confession indicated a deep emotional disturbance. Sweetland also testified there was “tremendous disparity” in Cady’s intelligence test scores in particular sections, which clearly indicated Cady’s education was seriously disturbed by emotional disturbances and learning disability. Cady’s overall I.Q., however, was 93, which is within the average range. Sweet-land opined Cady’s original Rorschach testing gave very clear indications of psychosis. The second test still showed mental illness but not to the extent of the first one. Sweetland also stated the Minnesota Multiphasic Personality Inventory test strongly pointed to psychosis. Sweetland concluded Cady was a very disturbed young man and had been for “many, many years.” Sweet-land testified, in his observation of the videotaped confession: “[Cady] was quite frightened, was drawn in to providing information, certain types of information from the police officers, eager to cooperate . . . .”
It was also Sweetland’s opinion that at the time of the homicide Cady was psychotic and had been hallucinating. Because of his emotional disturbances, his lack of sleep at the time of the homicide, the incident the previous day at the school, and Cady’s fear of losing his girlfriend, Sweetland testified Cady’s judgment was “blurred” and that Cady acted “out of complete primitive psychosis, not out of reason and judgment.” In addition to Sweet-land’s testimony, a school administrator testified Cady was in a learning disabled class. Cady’s father also testified that Cady suffered from oxygen deprivation at birth which resulted in a minimal brain disorder and that Cady had been held back in both kindergarten and first grade.
Due to Cady’s difficulties in his relationship with Brown, he had been temporarily hospitalized and lithium had been prescribed for his schizophrenic and manic-depressive tendencies. At the time of the homicide, Cady was on lithium and was also taking anabolic steroids. The steroids were not prescribed by any physician. Cady had also previously complained to his father of being able to feel germs crawling on his body, and the father testified Cady would take as many as three showers a day in response to this feeling. The day of the incident at the school, after Cady’s father took Cady home, Cady told his father he had also been hearing voices.
Dr. Vandenberg, a clinical and forensic psychologist, was called by the State as a rebuttal witness. Vandenberg only spent about one and one half hours with Cady and did not do any testing. He found Cady to be manic-depressive with schizo typal features. Schizo typal individuals are odd or eccentric but are not schizophrenic. Vandenberg opined Cady was not insane at the time of the homicide. Vandenberg’s conclusions were drawn by reviewing the existing reports and the observations by other persons involved. It should also be noted the videotaped interview began about 20 minutes after the killing.
Cady asserts this court’s standard of review is de novo, citing Fulminante v. Arizona, 499 U.S. 279, 113 L. Ed. 2d 302, 315-16, 111 S. Ct. 1246 (1991). That case noted the United States Supreme Court “normally give[s] great deference to the factual findings of the state court[s]” but that the “ ‘ultimate issue of “voluntariness” is a legal question requiring independent federal determination.’ ” The State contends that if the issue is addressed, the standard of review is whether substantial competent evidence supports the trial court’s determination that a statement is admissible because it was knowingly and voluntarily given, citing Perkins, 248 Kan. 760.
The State also acknowledges that while mental condition is relevant, it is only one of several factors to be considered. Those additional factors include the “duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation.” State v. William, 248 Kan. 389, 409, 807 P.2d 1292, cert. denied 116 L. Ed. 2d 89 (1991).
There is substantial competent evidence to support the trial court’s conclusion that Cady made his confession knowingly and voluntarily. Vandenberg opined that at best Cady was only manic- depressive. Cady’s I.Q. was in the average range, and the police officers stated Cady’s responses to their questions when they arrested him were rational.
An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990).
Even if we assume the trial court erred in admitting Cady’s confession, there is no reversible error if, in the light of other evidence adduced, it would not have changed the outcome of the trial. In addition to the confession, there was testimony that Cady made voluntary inculpatory statements to bystanders and the police officers prior to his arrest. The stepfather testified he saw Cady stab the victim. At trial, Cady testified he stabbed his girlfriend and claimed he was insane. He testified to support his defense of insanity, not in response to the admission of his videotaped statement. If there was any error in admitting the videotaped confession, it was harmless.
Affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff insured appeals the district court’s grant of summary judgment to defendant insurers. The insured filed this action alleging that the insurers breached their contract to defend him in a civil tort action filed in the federal district court by a female employee, who alleged the insured made sexual demands and committed intentional torts of assault, battery, and infliction of emotional distress and that he intentionally inflicted bodily harm upon her. The insured claims that the district court applied the wrong law and incorrectly found that (1) the policies were not ambiguous and (2) there was no coverage under the policies for the alleged acts and therefore no duty for the insurers to defend him.
In July 1978, M.P. was hired by General Motors Corporation (GM) and was eventually assigned to a department of which Thomas S. Spivey was superintendent. Eight years later M.P. filed separate lawsuits against Spivey and GM in the Circuit Court of Jackson County, Missouri, alleging that from 1978 to January 1986 Spivey made demands on her for sex and intentionally and recklessly committed various torts against her, including assault, battery, infliction of emotional distress, and infliction of bodily harm. She dismissed both suits and refiled them in the United States District Court for the Western District of Missouri.
Spivey admitted having a consensual sexual relationship with M.P. but denied all her allegations of intentional tort. Spivey requested that his insurance carriers defend him, but they refused. Two of the carriers that refused to defend Spivey are the remaining defendants in this case, Safeco Insurance Company (Safeco) and American Manufacturer’s Mutual Insurance Company (AMMIC). M.P.’s lawsuit against GM was tried first. The United States District Court found for GM and against M.P. In its findings of fact, the federal judge concluded that M.P.’s relationship with Spivey was welcomed by M.P. and that Spivey did not commit the intentional torts alleged by M.P. On the basis of the findings and judgment in the GM case, Spivey was granted summary judgment in M.P.’s lawsuit against him. After successfully defending against M.P.’s action in federal court without the assistance of the insurance companies, Spivey then filed this action in the District Court of Johnson County against his insurers, alleging breach of contract for failure to defend him in the federal action.
All parties filed motions for summary judgment. For the purpose of tire summary judgment motions, the district court applied Missouri law to the last Safeco policy issued to Spivey. The district court granted summary judgment for Safeco and AMMIC. Spivey appeals the order granting summary judgment to defendants. Spivey asserts numerous issues and sub-issues in his appeal. We have considered each claim. In the interest of clarity, we will discuss only the determinative issues in this opinion. We first, however, note our standard of review.
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. 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 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.]” Barbara Oil Co.v. Kansas Gas Supply Corp., 250 Kan. 438, 445, 827 P.2d 24 (1992).
SUMMARY JUDGMENT — THE SAFECO POLICIES
There are three successive homeowners/condominium-unit owners insurance policies under which Spivey was insured by Safeco, having combined effective dates of June 1974 to August 8, 1981. Spivey claims some of the alleged acts occurred in Missouri while the last policy was in effect; therefore Missouri law applies to that policy. Safeco claims all the alleged acts occurred in Kansas, and Kansas law governs all three of its policies. The Safeco policies defined “occurrence” as:
“An accident, including injurious exposure to conditions, which results during the policy term, in bodily injury or property damage.”
The exclusions provision of the Safeco policies is stated under Exclusion (l)(f):
“This policy does not apply ... to bodily injury or property damage which is either expected or intended from the standpoint of the insured.”
This provision appears immediately after the insuring agreements and before the definitions sections.
INSURANCE POLICY AMBIGUOUS
Spivey claims that Safeco’s policy is ambiguous; therefore, the insurer had a duty to defend him in the federal lawsuit. The district court reviewed the written policy and found it was not ambiguous.
As a general rule, the interpretation or construction and'meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact for determination by the jury. Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993). Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, Syl. ¶ 1, 754 P.2d 803 (1988).
Insurance policies are to be enforced as written so long as the terms do not conflict with pertinent statutes or public policy. Where terms are ambiguous, the policy shall be construed to mean what a reasonable person in the position of the insured would have understood them to mean. A policy is not ambiguous, however, unless there is genuine uncertainty as to which of two or more possible meanings is proper. House v. American Fam. Mut. Ins. Co., 25.1 Kan. 419, Syl. ¶ 3, 837 P.2d 391 (1992).
After reviewing the insurance contract, we find it is not ambiguous.
NO DUTY TO DEFEND
Spivey contends the district court incorrectly determined that there was no “occurrence” under the Safeco policies and therefore no duty to defend. Spivey asserts that the district court erred when it relied on M.P.’s petition in the federal case to determine whether the insurance carriers had a duty to defend rather than following the rule of Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P.2d 403 (1973), which requires the insurer also to consider any facts brought to its attention or which it could have reasonably discovered.
In Spruill, during a dispute over a bill for auto repairs, a customer, Rounkles, claimed one of Spruill’s employees ran over the customer’s foot. The customer sued and Spruill’s insurer, after investigating the matter, refused to defend Spruill in the litigation. After the customer prevailed against Spruill, Spruill sued its insurer, seeking, inter alia, reimbursement for the judgment and attorney fees in the Rounkles case. The insurer denied it had any duty to represent Spruill because the customer’s petition alleged injuries due to Spruill’s employee’s intentional torts. The insurer contended such intentional acts were outside the coverage of Spruill’s liability insurance contract for two reasons: (1) It is against public policy to insure anyone against the results of his or her intentional torts, and (2) the acts were specifically excluded from the definition of “occurrences” against which Spruill was insured. The policy provided the insurer would defend and pay any damages for any occurrence, but excluded intentional acts from the definition of occurrence.
The district court granted the insurer’s motion for summary judgment, and Spruill appealed. Before Spruill, this court had held the duty of an insurer to defend an action for damages against its insured was not measured by proof which may be adduced at the trial or by the outcome of the litigation, but was to be determined by the allegations of the petition in the action and by the terms and provisions of the policy. See Brown v. Green, 204 Kan. 802, Syl. ¶ 3, 466 P.2d 299 (1970). Brown held an insurer is not obligated to defend the action where it would have no liability in the event a judgment is rendered against its insured. The Spruill court noted that the Brown court had failed to consider either the enactment of the new code of civil procedure for Kansas in 1963 or the decision in Milliken v. Fidelity and Casualty Company of New York, 338 F.2d 35 (10th Cir. 1964). The Spruill court then overruled the holding in Brown and Leonard v. Maryland Casualty Co., 158 Kan. 263, 146 P.2d 378 (1944), that an insurer may rely on the plaintiff’s petition alone to determine whether there is a duty to defend. 212 Kan. at 686.
The Spruill court then observed that Spruill’s employees’ act of taking possession of the truck, although intentional, was not the act which caused the customer’s injury. If liability for injury attached, it was caused by the manner in which the employees were moving the truck. Spruill’s policy provided that the injury must be caused by an “occurrence” which was defined as “an accident . . . which results ... in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” 212 Kan. at 684. The insurer’s investigation report disclosed the insured neither expected nor intended bodily injury to result. Under that policy, coverage was avoided only if an act resulted in an intentional injury. We observed that an intentional act, however, may result in an unintended injury. The Spruill court reversed the district court and granted summary judgment to Spruill. It also noted that insurance contracts, by the use of independent and unrelated language, attempt to define the duty to defend. It refused to speculate why policies uniformly do not define the duty to defend as being parallel to the coverage of the policy, but it observed the result may be to extend the duty to defend beyond the extent of the coverage. 212 Kan. at 687-88.
Spivey asserts if the insurer must look beyond the pleadings, that should have been part of the test used by the district court in determining a motion for summary judgment. Spivey argues that the district court failed to apply the rule. We disagree.
The district court noted that all three policies required Safeco to pay all sums which its insured became legally obligated to pay for bodily injury or property damage caused by an accident which results during the policy term. The district court pointed out that M.P.’s petition alleged intentional acts on Spivey’s part, that Safeco’s arguments for summary judgment were directed upon the claims M.P. made in her petition, and that Safeco acknowledged that generally the insurer’s duty to defend is not determined by the pleadings alone. The district court observed that Spivey contended that the “occurrence” language of the policies did not preclude coverage because although he intended to have sex with M.P., he did not intend to injure her. The district court pointed out that Spivey was not sued for having sex with M.P. (an intentional act) but for intentionally injuring her (an intentional injury) by threats with a knife and gun, by shooting a gun at her, and by forcing sexual acts upon her. The district court noted that the term “accident,” as used in the policies, meant an “unintentional act.” Because the alleged acts were intentional, not accidental, the district court concluded that (1) as a matter of law the injuries to M.P., if any, were intentional injuries; and (2) the actions alleged were not occurrences as defined in the Safeco policies; therefore, there was no duty for Safeco to defend the lawsuit against Spivey.
Although the district court did not mention Bell v. Tilton, 234 Kan. 461, Syl. ¶ 2, 674 P.2d 468 (1983), in its memorandum opinion, in Bell we discussed coverage of an intentional act and an unintentional injury. The insurer’s homeowners policy provided coverage for bodily injuries or property damage caused by a covered occurrence. The defendant, Russell Wayne Tilton (Rusty), the 11-year-old son of the homeowners, was an insured. Coverage under the policy was limited by an exclusion which provided: “This policy does not apply ... to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” Two 11-year-old boys, Chris and Dion, spent the night with Rusty at his rural home. Rusty knew the dangers inherent in gun handling, was taught the art of safe gun handling by his father, and had successfully completed the basic hunter safety course. The boys played in the hayloft and there was shooting of the BB gun. Rusty left the hayloft. A “game” developed whereby Chris and Dion would run across the open hay door inside the loft and Rusty, standing outside the barn, fired the BB gun into the open door at the running boys. Rusty saw Chris peek around the side of the hay door opening, took aim, and fired the BB gun at him. The BB pellet hit Chris in the right eye, causing severe injury.
The initial suit filed against the Tiltons alleged both negligence and intentional tort theories. Subsequently, plaintiff dropped his intentional tort contention and relied solely on negligence. The jury awarded Bell $30,800. Plaintiff filed a garnishment proceeding against the insurance company, claiming under the Tiltons’ homeowners policy. In its answer, the insurer asserted it was not indebted to Rusty Tilton under its policy because the insured had intentionally injured the plaintiff. The trial court concluded the circumstances of plaintiff’s injury came within the “expected or intended” exclusion of the Tilton policy and, accordingly, garnishee insurance company had no liability. On appeal, plaintiff argued that because Tilton testified he did not have the specific intent to injure plaintiff’s eye when Tilton fired the BB gun at plaintiff, then the injury is not as a matter of law “intentional” within the meaning of the policy exclusion.
This court, in Bell, noted that numerous cases in other jurisdictions, and two in particular, had addressed the matter of intent with regard to insurance policies which exclude coverage for intentional torts. In Clark v. Allstate Insurance Company, 22 Ariz. App. 601, 529 P.2d 1195 (1975), Clark, who was covered by his parents’ insurance policy which excluded injury caused feloniously or intentionally by or at the direction of an insured, struck a fellow student in the face. Clark, like Rusty Tilton, stated that although he did intend to hit the student in the face with a short jab, he did not intend to hurt the student he struck. After the other student sued, the Clarks’ insurer brought a declaratory judgment action to determine it was not liable as an insurer because the injury inflicted by its insured was the result of an intentional tort. The trial court granted the insurer judgment, and the Arizona Court of Appeals affirmed. The appellate court noted that the contention of young Clark that he did not intend to injure the student he hit did not make the question of intent an issue of material fact which must go to the trier of fact because the act of striking another in the face was so certain to cause harm that a person who did the act intended the resulting harm, and his statement to the contrary did not refute that rule of law.
State Farm Fire & Cas. Co. v. Muth, 190 Neb. 248, 207 N.W.2d 364, modified 190 Neb. 272 (1973), also involved a minor firing a BB rifle and an interpretation of an insurance policy exclusion for “bodily injury or property damage which is either expected or intended from the standpoint of the insured.” 190 Neb. at 249. Affirming the trial court judgment against the in surance company, the Nebraska Supreme Court held that under the language of the exclusion, an injury is either expected or intended if the insured acted with the specific intent to cause harm to a third party. It was immaterial whether the injury which results was specifically intended, i.e., the exclusion would apply even though the injury is different from that intended or anticipated.
This court, in Bell, then observed that under the “expected or intended from the standpoint of the insured” policy exclusion language, it was not necessary for the insurance company to show Tilton specifically intended to strike Bell in the eye with a BB pellet in order to deny liability. Rather, if from the acts, circumstances, and inferences of the case, it appeared Tilton had the desire to cause the consequences of his acts or he believed the consequences were substantially certain to result, his conduct was intentional and the policy exclusion was operative. We found there was substantial competent evidence before the trial court to support its finding that the shooting was intentional. Consequently, we found the trial court did not err in entering judgment for the garnishee and in dismissing the garnishment action. 234 Kan. at 472.
In essence, plaintiff in Bell argued that because the insured testified in his deposition he did not have the specific intent to injure plaintiffs eye when he fired the BB gun at plaintiffs face, the injury is not as a matter of law “intentional” within the meaning of the policy exclusion'. We disagreed. We concluded that where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.
Under the present code of civil procedure, an 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 those facts give rise to a “potential of liability,” even if remote, under the policy, the insurer bears a duty to defend. MGM, Inc. v. Liberty Mut. Ins. Co., 253 Kan. 198, 202, 855 P.2d 77 (1993). The duty to defend rests primarily on the possibility that coverage exists, and the possibility of coverage must be determined by a good faith analysis of all information the insurer may know or could have reasonably ascertained. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurers duty to defend. Spruill, 212 Kan. at 686.
The duty to defend and whether the policy provides coverage are not necessarily coextensive. The duty to defend arises whenever there is a “potential of liability” under the policy. The insurer determines if there is a potential of liability under the policy by examining the allegations in the complaint or petition and considering any facts brought to its attention or which it could reasonably discover. Where a petition alleges an act that is clearly not covered, for example, that the defendant acted willfully and intentionally, there would be no potential of liability under the policy for intentional acts. Where the complaint alleges both a negligent and intentional act, these alleged facts give rise to the potential for liability, and the duty to defend arises. MGM, Inc., 253 Kan. at 202.
M.P.’s petition did not allege both a negligent and intentional act. M.P.’s complaint in the federal action alleged Spivey’s acts were intentional and he intended to injure her. Where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional. A liability provision in an insurance contract excluding coverage for injuries expected or intended from the standpoint of the insured excludes from coverage an injury which the insured intentionally caused. Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 721, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982).
Spivey, in his brief and at oral argument, cites Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 483 P.2d 1072 (1971). In that case, plaintiff’s petition charged Gowing with unprovoked, willful, malicious, vicious, and violent assault and battery. The insurance policy contained provisions that attempted to limit or restrict from coverage bodily injury or property damage caused intentionally by or at the direction of the insured. The Gowing court noted that other provisions of the policy provided coverage “even if any of the allegations of the suit are groundless, false or fraudulent.” 207 Kan. at 79. The court concluded the contract’s language was ambiguous and failed to clearly reveal the exclusion. 207 Kan. at 83. That case does not apply due to our finding that the policies between Spivey and the insurers are not ambiguous.
The trial court, viewing the facts most favorably to Spivey, assumed that part of the conduct alleged by M.P. occurred in Missouri and that Missouri law controlled as to that Safeco policy. The court found that Missouri law is similar to Kansas law as to intentional acts and the intentional injury issue. The court observed that in Missouri “accident” means that which happened “by chance or fortuitously, without intention or design and which is unexpected, unusual and unforeseen.” The court found that, under Missouri law, the injury would be intended because the intentional acts were of a character from which as a matter of law, a court may infer an intent to injure. The court determined that summary judgment was proper under Missouri law because both the act and the injury were intended by Spivey and there was no "occurrence” because the policy defined “occurrence” as an accident. The district court held that under Missouri law the Safeco “intentional acts” exclusion clause of the Missouri policy excluded coverage. The district court found that under either Kansas or Missouri law Safeco was entitled to summary judgment. For purposes of reviewing the ruling on the motion for summary judgment, this court will also assume Missouri law governs the one policy and determine if there is coverage based on Missouri law.
Spivey claims that the district court erred in determining which Missouri law applied and cites American Family Mut. Ins. v. Pacchetti, 808 S.W. 2d 369 (Mo. 1991), as authority. In Pacchetti, a 16-year-old boy, Derek, was visiting in the home of Pacchetti who either injected the boy with cocaine or assisted him in injecting cocaine. The boy died from an overdose of cocaine. The boy’s parents sued Pacchetti, who was covered by a homeowners policy which insured Pacchetti against liability for personal injury and property damage for which he was legally responsible but excluded bodily injury “which is expected or intended by any insured.” Pacchetti’s insurer brought a declaratory judgment action contending that the misfortune was within the exclusion, so that it was not covered by insurance. The trial court entered judgment for the defendants, concluding that the claim was within the coverage of the policy. The trial court found there was insufficient evidence that Pacchetti intended or expected to cause the death and insufficient evidence to infer that he intended or expected to cause injury. The insurance company appealed, and the Missouri Court of Appeals reversed, concluding that “as a matter of law, the injury to Derek was expected.”
Transfer to the Missouri Supreme Court was granted because of the widespread use of an exclusion for injuries intended or expected in liability insurance policies. That court affirmed the trial court, finding that the injury was within the liability coverage of the policy and that the insurer did not automatically bring the exclusion into play simply by showing that cocaine is harmful or that the insured’s acts in providing it to Derek were intentional. The Missouri court observed that many intentional acts are within the coverage of liability insurance policies, even with this standard exclusion. It pointed out that it must be shown not only that the insured intended the acts causing the injury, but that injury was intended or expected from these acts, citing See Steelman v. Holford, 765 S.W.2d 372, 377 (Mo. App. 1989). The Missouri Supreme Court determined that it remained for the insurer to show that this particular insured expected or intended the result which occurred. Steelman was found to be analogous to Pacchetti, but there was no showing that the insured in Steelman acted with the purpose of injuring the plaintiff or anybody else. The Missouri Court of Appeals in Steelman concluded that there wás a fact question as to whether the injury was expected or intended, and affirmed the trial court’s finding of coverage.
The district court in Spivey’s case asserted that Pacchetti does not stand for the proposition that under Missouri law reckless acts are not excluded by an intentional acts exclusion clause. It noted that in Pacchetti, the Missouri court stated that the insurer must show that the insured expected or intended the result which occurred, and it determined that because it was not shown that Pacchetti intended to injure the boy even if he injected him with cocaine, Pacchetti was not dispositive.
To determine whether acts which result in injuries which are a natural and probable result of the act are intentional and can be excluded under Missouri law, the district court instead relied on Hanover Ins. Co. v. Newcomer, 585 S.W.2d 285 (Mo. App. 1979). Newcomer, a named insured under a homeowners policy, and Samantha Locke went to an afternoon party. For several hours they visited various parties, consumed alcoholic beverages, and screamed and shouted at each other. They parted briefly. When Miss Locke entered Newcomers residence, she observed Newcomer with a ceremonial machete hanging from his belt. Newcomer and Miss Locke then started to wrestle over a container of marijuana. Newcomer threw Miss Locke against the wall and then threw pool balls around the room. He then began swinging the machete around the room. While swinging the machete, he struck Miss Locke on the right leg in the groin area. Miss Locke was rescued when a friend entered the room and sprayed Newcomer with mace.
Newcomer did not remember yelling or screaming, but did recall throwing the pool balls and swinging the machete. He chopped the door jambs in the living room and struck the pool table with the machete. He recalled striking Miss Locke with the machete but contended the striking of Miss Locke’s leg was the continuation of a chopping action on the door frame.
Miss Locke filed claims against Newcomer for damages. While the claims were pending, Newcomer’s insurer filed a declaratory judgment action seeking to avoid coverage under the personal liability provisions of its policy. Miss Locke then filed a lawsuit against Newcomer for compensatory damages for intentional assault, punitive damages for intentional assault, compensatory damages for wanton and reckless conduct, and punitive damages for wanton and reckless conduct. The homeowners policy provided under the coverage for personal liability section that the policy did not apply to bodily injury or property damage which was either expected or intended from the standpoint of the insured.
The Missouri court in Hanover first cited Subscribers at Auto. Club, etc. v. Kennison, 549 S.W.2d 587 (Mo. App. 1977). In Subscribers, the court considered whether a dispute was within the exclusion language of a policy, which declared that the policy did not apply to bodily injury or property damage caused intentionally by or at the direction of the insured. The Subscribers court declared:
“Intended results are not only those results which are desired. If a person knows consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. [Citation omitted.] Therefore, an admission of specific intent is not the only way to show intent to cause harm; it can be inferred from facts and circumstances surrounding an act.” 549 S.W.2d at 590-91.
The Missouri court in Hanover then noted that in Butler v. Behaeghe, 37 Colo. App. 282, 548 P.2d 934 (1976), the homeowner insured was denied coverage when he caused impairment of the sight of another when he swung a pipe at him. The Butler court stated:
“Where coverage is excluded if bodily injury is ‘intended or expected’ by the insured, such exclusion is inapplicable if and only if the insured acts without any intent or any expectation of causing any injury, however slight. And conversely, such exclusion is applicable if the insured acts with the intent or expectation that bodily injury will result even though the bodily injury that does result is different either in character or magnitude from the injury that was intended.” 37 Colo. App. at 287.
The Missouri court in Hanover determined that the act of an insured need not be expressly intentional but can be inferred. An injury is expected or intended from the standpoint of the insured if a reason for an insured’s act is to inflict bodily injury or when the character of the act is such that an intention to inflict an injury can be inferred as a matter if law. 585 S.W.2d at 289.
We agree with the district court’s conclusion that under Missouri law, Safeco’s policy excluded coverage if bodily injury is intended or expected by the insured.
SUMMARY JUDGMENT — AMMIC POLICY
From January 1, 1982, to January 1, 1986, Spivey was also insured under an AMMIC Personal Catastrophe Liability Policy issued to General Motors Corporation. The AMMIC policy was an umbrella or excess liability insurance policy with a $50,000 retained limit. The insured, Spivey, was required to maintain underlying insurance of at least $50,000. Spivey carried underlying insurance of $100,000 with State Farm Fire and Casualty Company. The parties agree that the AMMIC policy is governed by Kansas law.
AMMIC incorporated the arguments and authorities raised and cited by Safeco and, in addition, claimed it had no duty to defend because Spivey had settled his claim against the underlying insurer for less than the policy coverage. The district court stated that its rulings on the AMMIC arguments were the same as its rulings on the Safeco arguments. The district court then noted that summary judgment in favor of AMMIC was also proper because the AMMIC policy contained an excess insurance provision and the policy therefore did not qualify as valid and collectable insurance until the limits of the primary policy had been exhausted. It observed that insurance coverage which contains an excess provision is not valid or collectable insurance until the limits of the primary policy have been exhausted, citing Wright v. Newman, 598 F. Supp. 1178, 1197 (W.D. Mo. 1984). The district court pointed out the settlement by the plaintiff with State Farm in the amount of $15,725 did not exhaust the $50,000 retained limit required by the AMMIC policy. The district court concluded that because the settlement with State Farm did not exhaust that policy, AMMIC had no duty to defend or indemnify Spivey under the law.
The district court then noted that Spivey’s alleged conduct were acts intended to injure M.P. The injury to M.P. was intended by Spivey and the result was reasonably anticipated, given the nature pf the conduct by the insured. The district court ruled that there was no occurrence under the AMMIC policy because Kansas public policy prohibits insurance coverage for intentional and malicious acts. The district court, based on its reasoning as to Safeco’s duty to defend its insured, concluded there was no coverage under the AMMIC policy; therefore, AMMIC had no duty to defend its insured.
Based on our previous discussion of the Safeco policy, we agree with the district court’s conclusion that under the exclusions provision of its policy, AMMIC had no duty to defend or to indemnify Spivey.
ATTORNEY FEES
The district court also ruled that Safeco was not liable for attorney fees under K.S.A. 40-256 because the case law relied on by Spivey in support of his claim was factually different from this case, the law was not settled in this area, and there was a good faith legal controversy.
A K.S.A. 40-256 motion or request for attorney fees is not a part of the merits of the underlying action, even though alleged in the petition, because attorney fees are not part of the com pensation for a plaintiff’s injury. Attorney fees traditionally have been regarded by the legislature as costs awarded to the prevailing party.
Affirmed.
Abbott, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal from the district court’s order denying the petition of the couple who sought to adopt Raby Roy B. The natural father had opposed their petition, and they had sought to terminate his parental rights on the ground that he had failed, without reasonable cause, to provide support for the mother during the six months prior to the child’s birth. The Court of Appeals affirmed the district court’s denial of the petition in an unpublished opinion filed June 18, 1993. We granted the couple’s petition for review.
Baby Boy B. was born on March 20, 1992. His mother and father were not married. His mother consented to his adoption by the couple; his father did not.
The couple who sought to adopt Baby Boy B. filed a petition for adoption in the district court and were granted custody of the child pending the hearing on their petition. Their amended petition for adoption alleges that the child’s father “has failed and refused to consent to this adoption.” The couple sought to have his parental rights terminated. In his answer, the father admitted being the father of the child and asserted his rights as a parent.
The hearing on the couple’s petition was held on May 7, 1992, with the Honorable Keith W. Sprouse presiding. The theory which the couple sought to develop was that the father’s consent was unnecessary, pursuant to K.S.A. 1992 Supp. 59-2136(h)(4), for the reason that after having knowledge of the pregnancy, he failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth. At the conclusion of the hearing, the district court judge took the matter under advisement.
On June 2, 1992, the Honorable Paul E. Miller was assigned to “hear and determine” this case. The record does not contain an explanation for the change.
On July 16, 1992, a journal entry of judgment was filed, denying the petition for adoption, setting aside the temporary custody order, and placing custody of the child with the father. The district court denied the couple’s request for a stay pending appeal, and it was ordered that the transfer of custody occur on July 17, 1992.
Two issues are raised by the couple in this appeal:
1. What is the proper standard of appellate review?
2. Did the father provide support to the mother during the six-month period before the child was born within the meaning of K.S.A. 1992 Supp. 59-2136(h)(4)P
We will first address the issue of the proper standard of appellate review. In the only published opinion reviewing a district court’s decision on parental rights pursuant to K.S.A. 1992 Supp. 59-2136(h)(4), the Court of Appeals stated: “The controlling issue is whether the findings of fact by the trial court are supported by substantial competent evidence of clear and convincing quality.” In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 312, 822 P.2d 76 (1991). The requirement that the evidence be “clear and convincing” was specified by the legislature. In Baby Boy S., the Court of Appeals applied general principles which had been stated by this court in In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987). 16 Kan. App. 2d at 312. In F.A.R., we held:
“In an adoption proceeding, the question of whether an individual has failed or refused to assume the duties of a parent for the required period of time pursuant to K.S.A. 1986 Supp. 59-2102(a)(3) is ordinarily a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing.” Syl. ¶ 1.
“When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.” Syl. ¶ 2.
“Generally speaking, adoption statutes are strictly construed in favor of maintaining the rights of natural parents in those cases where it is claimed that, by reason of a parent’s failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required. [Citation omitted.]” Syl. ¶ 5.
“In making a determination in an adoption proceeding of whether a non-consenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered.” Syl. 11 6.
“Before a child can be adopted without the consent of one of the natural parents, the facts warranting an exception as prescribed by statute must be clearly proven.” Syl. 11 10.
On the appeal of the present case, the natural father advocates that the standard of review which this court applied in F.A.R. and which the Court of Appeals adopted in Baby Boy S. is controlling in the present case. The couple and the mother rely on the rule that review should be de novo when the controlling facts are presented by a written record, the reason being that the appellate court has as good an opportunity to consider the record and determine the facts as did the trial court.
There is an exception to the general rule that an appellate court will decide the facts for itself on a written record. The exception has been applied where the testimony of one witness must be credited over that of another. In Boese v. Crane, 182 Kan. 777, 780, 324 P.2d 188 (1958), this court stated the limited application of the rule:
“This rule, however, is not universally applied under all conditions. It has been applied where all the evidence is in written form [citation omitted]; where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form [citation omitted]; but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others [citations omitted].”
The Court of Appeals in the present case noted:
“The record available to Judge Miller is similar to the record provided to the district court in Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P.2d 180 (1958). Karlan was a replevin action decided on the basis of documentary evidence, including a written stipulation as to the testimony that specified witnesses would give if they were present at trial. The Supreme Court described the nature of that stipulation:
‘It should be noted at this point that the stipulation last above mentioned contains statements by witnesses for both the plaintiff and the defendants; that it gives their respective views on controverted phases of the lawsuit; and that in no sense is it to be regarded as an agreed statement of facts. The most that can be said for it is that, while it presented the evidence of each witness in documentary form, it permitted the court to weigh the testimony of all witnesses and decide for itself the weight to be given such testimony in reaching its decision on the decisive issues involved.’ 182 Kan. at 757.
In view of the record presented to the district court, the Supreme Court rejected a request for de novo review:
‘In reaching the conclusions last above announced we have not overlooked contentions strenuously advanced by appellants to the effect that since the only evidence of record is in documentary form this court is required to decide for itself what the facts established, substantially in the same manner it would if this were an original case. We have so held. [Citations omitted.] It must be remembered, however, such rule is subject to some elasticity under certain conditions. In that connection we have pointed out that even though we determine the facts from the printed page we cannot disregard the testimony of one witness and accept as true the testimony of others but, under such circumstances, should follow the ordinary rule, giving credence where the trial court gave credence, unless its findings of fact are illogical, improbable and unwarranted.’ 182 Kan. at 760.”
In their petition for review and in a supplemental brief filed in this court, the couple contend that the record in this case does not contain conflicting testimony. They argue, therefore, that the present case fits the rule for de novo review, of decisions based on a written record rather than the exception for a written record containing conflicting testimony. They focus on the example of disputed facts set out in the Court of Appeals’ opinion: “For example, natural father testified that he offered to give money to natural mother, but that she refused to accept the funds. Natural mother testified that natural father merely offered to loan her money, on the condition that she not give the baby up for adoption.”
The couple contend that the testimony of the mother and father is not conflicting in that he stated what he said and she stated how she interpreted what he said. Their argument is okay as far as it goes. The issue on which the father and mother were testifying is whether or not the father offered support. If, as the couple advocate, the district court had simply accepted the testimony of both witnesses as true, this factual issue would not have been resolved. In order for the district court to have accepted as true both witnesses’ testimony and made this factual determination, it would necessarily have accepted as fact that the father offered support because that is what he testified he did. The unavoidable corollary is that the mother misinterpreted his intent when she assumed that the offer was conditional.
In addition, the couple have focused exclusively on one portion of the testimony. Thus, they have not demonstrated that there are not other instances of testimony “where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others.” Boese v. Crane, 182 Kan. at 780. In fact, there are other instances where the testimony of these witnesses disputes essential facts. For example, the mother testified that she used her food stamps to buy food for the father, his three boys, and herself in September and October 1991. The father testified that she used her food stamps to buy only their milk and that she sold the remaining stamps to her former husband.
The Court of Appeals was not impressed with the cases relied upon by the appellants, stating:
“The cases relied on by appellants to justify de novo review are distinguishable. Stith v. Williams, 227 Kan. 32, 605 P.2d 86 (1980), was a land ownership case tried to the district court on an agreed statement of facts. 227 Kan. at 34. Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 336, 592 P.2d 74 (1979), a declaratory action arising out of a lease, was ‘submitted to the trial court on the oral statements and stipulations of counsel and documentary evidence. No witnesses testified.’ Finally, In re Estate of Broadie, 208 Kan. 621, 493 P.2d 289 (1972), concerned the validity of an antenuptial agreement and a consent to a will. The Supreme Court concluded that the uncorroborated claims of a widow that her husband had undervalued his property were insufficient to set aside an antenuptial agreement on the grounds of fraudulent concealment. The Broadie decision mentions only the deposition testimony of the widow. Although a de novo review is employed, the decision does not indicate that the record contained conflicting testimony.”
The Court of Appeals reviewed Keimig v. Drainage District, 183 Kan. 12, 325 P.2d 316 (1958), and found it is procedurally dissimilar to the present case and not controlling authority for de novo review in the present case. It stated:
“Notably lacking in Keimig is a clear indication that the court resolved factual disputes arising from conflicting testimony. . . . The Keimig opinion does not reflect a process of weighing evidence, preferring one witness’s testimony over that of another, or disregarding one witness in favor of another. See North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 759, 352 P.2d 1060 (1960) (noting that Keimig references numerous authorities for the rule permitting de novo review of stipulated facts).”
In Giblin v. Giblin, 253 Kan. 240, 253-54, 854 P.2d 816 (1993), we said:
“The rationale behind not allowing appellate de novo determination of facts in a case involving witness testimony is that we do not weigh conflicting testimony. There was no conflicting evidence presented, written or oral, to contradict York’s testimony about her conversations with Readey and Lin- ville. Thompson did not even cross-examine York. York’s testimony is arguably no different than the affidavits submitted. Additionally, at the- November 6, 1991, hearing, the parties agreed there was sufficient written evidence for the trial court to decide the case. The trial court even noted this in its memorandum decision. It was at the court’s request that York testified. In this situation, we can determine de novo what the facts establish.
“The appellees also contend this court cannot determine de novo what the facts establish because the standard of review is abuse of discretion. The appellants’ argument concerns the manner in which this court reviews the evidence, not tire standard of review. Abuse of discretion — whether the trial court’s actions were arbitrary, fanciful, or unreasonable or whether any reasonable person would agree with the trial court’s actions — necessitates a review of the evidence. In so doing, this court either can determine de novo what the facts establish or this court can determine if the statutory requirement of having a reasonable basis in fact has been met. Abuse of discretion and a de novo determination of what the facts establish are not necessarily mutually exclusive.”
We agree with the Court of Appeals that the record does include conflicting testimony, and thus the standard of review is whether substantial competent evidence exists to support the district court’s findings.
We therefore must determine whether substantial competent evidence exists to support the district court’s finding that the father did provide support to the mother during the six-month period before the child was bom, within the meaning of K.S.A. 1992 Supp. 59-2136(h)(4). The district court construed K.S.A. 1992 Supp. 59-2136(h)(4) to require the father to provide support “of some consequence and reasonable under all the circumstances existing in this case.” The couple contended that the district court used an incorrect standard of “support” in applying the statute.
K.S.A. 1992 Supp. 59-2129(a)(l) and (2) provide: “Consent to an independent adoption shall be given by: (1) The living parents of the child; or (2) one of the parents of the child, if the other’s consent is found unnecessary under K.S.A. 59-2136.” K.S.A. 1992 Supp. 59-2136(a) provides: “The provisions of this section shall apply where a relinquishment or consent to an adoption has not been obtained from a parent and K.S.A. [1992 Supp.] 59-2124 and [K.S.A. 1992 Supp.] 59-2129, and amendments thereto, state that the necessity of a parent’s relinquishment or consent can be determined under this section.” K.S.A. 1992 Supp. 59-2136(h) provides:
“When a father or alleged father appears and asserts parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act. If a father desires but is financially unable to employ an attorney, the court shall appoint an attorney for the father. Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
(1) The father abandoned or neglected the child after having knowledge of the child’s birth;
(2) the father is unfit as a parent or incapable of giving consent;
(3) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
(4) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior the child’s birth;
(5) the father abandoned the mother after having knowledge of the pregnancy;
(6) the birth of the child was the result of rape of the mother; or
(7) the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition.
“In making a finding under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father!, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.”
The legislature limited the circumstances in which an adoption may be granted without the consent of the father to those seven specified in 59-2136(h)(l) through (7). In the only reported Kansas appellate opinion which has construed 59-2136(h)(4), In re Adoption of Baby Boy S., the Court of Appeals stated:
“This case is analogous to cases where the trial court must determine if a parent has failed or refused to assume the duties of a parent for two consecutive years prior to an adoption pursuant to K.S.A. 1990 Supp. 59-2136(h)(7) (repealing and replacing K.S.A. 1989 Supp. 59-2102[a][3]). The tests and rules applicable in those instances are equally applicable when a trial court must determine whether a father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth.” 16 Kan. App. 2d at 313.
The “tests and rules” applicable to subsection (h)(7) are those which are set out in this court’s decision in F.A.R., 242 Kan. 231. In F.A.R., we held that neither the fitness of the parent nor the best interests of the child is a controlling factor. We said:
‘‘[T]his court has consistently held that adoption statutes are to be strictly construed in favor of maintaining the rights of a natural parent, especially where it is claimed that consent to adoption is not required due to the natural parent’s failure to fulfill parental obligations. E.g., In re Sharp, 197 Kan. 502, 504, 419 P.2d 812 (1966). This court has also held that a parent’s reasons, if any, for inaction may be properly considered by the court in support of an answer to an adoption petition. In re Sharp, 197 Kan. at 508.
“In considering whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered. . . . [I]t is for the trial court to determine the sufficiency of such efforts. . . . Whether the efforts made by appellee were sufficient to meet his parental obligations under all the circumstances will be considered in connection with appellant’s attack upon the sufficiency of the evidence. We hold that it was not error for the trial court to take into consideration the limiting aspects of appellee’s confinement in determining whether he had failed to assume his parental duties.
“. . . The ultimate finding that the natural mother interfered with ap-pellee’s rights to maintain contact with his sons was supported by the evidence, when it is viewed in the light most favorable to appellee. . . . The record contains support for the trial court’s finding that the natural mother interfered with appellee’s rights to keep in contact with his sons. However, the court also recognized the natural reluctance of the mother to take two small children to the prison to visit and was sympathetic to her. It does not appear that the trial judge’s finding of fact on this point was a principal factor in his ultimate decision in this case. It merely was one of the circumstances considered in the overall decision and was certainly not a controlling factor.” 242 Kan. at 235-37.
The couple urge this court to measure the adequacy of the father’s support of the mother by reference to the Internal Revenue Code or the Kansas Child Support Guidelines (Administrative Order No. 83 [1993 Kan. Ct. R. Annot. 71]) or by balancing one party’s need against the other’s ability to pay, as if computing an award of maintenance.
In this regard, the Court of Appeals stated:
“These arguments are not persuasive. Appellants offer no authority that would justify the court in adding to the statute a rigid standard which the legislature has not chosen to use. Had the legislature wished to incorporate the Internal Revenue Code or the Child Support Guidelines into the statute, it could have done so. In fact, a recent amendment to 59-2136, not applicable here, creates a rebuttable presumption that a father has failed or refused to assume the duties of a parent if he has ‘knowingly failed to provide a substantial portion of the child support as required by judicial decree.’ K.S.A. 1992 Supp. 59-2136(h). That amendment references a child support order, not merely an amount which might be calculated on the basis of the guidelines.”
The Court of Appeals agreed that the decision in Baby Boy S. is controlling in the present case, stating:
“The case-by-case approach adopted in In re Adoption of Baby Boy S., In re Adoption of F.A.R., and In re Adoption of B.J.H. requires that we reject a rigid test for measuring adequate support. The language of the statute does not require an inflexible level of support. In fact, In re Adoption of F.A.R. instructs ‘the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability.’ 242 Kan. at 236. The trial court here did not err in applying a ‘reasonable under all the circumstances’ test to decide natural father had provided support to natural mother.”
We agree. In the present case, the focus is on the wording of 59-2136(h)(4). As the father correctly points out, the legislature did “not state that it must be shown that the father failed to support the mother but rather that he failed to provide support for her.” The language used indicates that some but not a specific amount of support is required. The father’s argument is that “support” within the meaning of this statute is an individualized concept and that it need be only a contribution toward, rather than the full amount required for, the mother’s living expenses. That the legislature contemplated only a reasonable contribution is supported, not only with respect to the wording of subsection (h)(4), but also when all parts of (h) are read together. Other parts require the district court to find,, for example, that the father raped the mother, that the father abandoned the mother or the child, or that the father is unfit as a parent. A father who contributed to the support of the mother but failed to fully support her before the birth of the child would not seem to be in the same category or to deserve the same sanction — having his parental rights terminated — as those who raped and abandoned and were unfit. The reasoning of Baby Boy S. and F.A.R., in measuring the adequacy of the support on a case-by-case basis according to the circumstances in each case, applies in the present case. As the trial court correctly held:
“ ‘Support,’ as that term is set forth in K.S.A. [1992 Supp.] 59-2136(h)(4), does not mean all support of the mother, nor is it sufficient if it is incidental or inconsequential in nature. The ‘some’ support standard suggested by counsel for the natural father seems reasonable to the Court. Support must be of some consequence and reasonable under all of the circumstances existing in the case.”
The test to be applied in determining if the natural father’s consent is necessary under K.S.A. 1992 Supp. 59-3136(h)(4) is one of reasonableness under all the relevant surrounding circumstances existing in the case.
In the present case, the surrounding circumstances relevant to the father’s providing support to the mother during the last six months of her pregnancy can be summarized as follows: During the fall of 1991, the mother and father lived together for approximately six weeks. Each had three children by a previous marriage. The father’s children lived with him. During the six-month period before the child whose adoption is at issue was born, the mother’s three children lived with their father, her former husband. When she was not living with the father, the mother lived with her former husband. The mother did not consider that the father was contributing to her support when she lived at his house because he would have incurred the rent and utilities whether she had been there or not. She estimated that the father spent during that time $75-80 on her for entertainment and restaurant meals and $100 on maternity clothes. She testified that in September and October 1991 she bought food for the father, his children, and herself with her food stamps. The father testified that she bought their milk with her food stamps and sold the remaining food stamps to her former husband.
The record contains four checks which total $130 that the father wrote to the mother in the fall of 1991. The mother testified that she could not recall the reasons for the payments.
The mother became employed in mid-October. In November, she no longer received food stamps because her income exceeded eligibility. On Thanksgiving Day, she moved in with her sister. The mother paid rent to her sister.
The State paid her medical expenses. The mother testified that she and the father discussed early in her pregnancy the possibility of “taking on the bill ourselves” so that she could go to the medical care provider of her choice, but that “we chose not to do it that way.”
After the mother moved in with her sister, she continued to see the father. She spent Christmas with him at his parents’ home, and they attempted to get married, but they had failed to obtain a marriage license. He gave her boots and a sweater for Christmas. In January, he wrote a check to her for $31. He took her out to eat approximately once a week in February and March. He sent her flowers on one occasion. They used her car when they went out together, and he filled her car with gasoline approximately three times in February.
The mother testified that several weeks before Baby Boy B. was born, the father offered her $1,000 from his anticipated income tax refund. He also offered to pay her approximately $1,100 for living expenses for the month after the baby was born. She indicated that she refused these offers of assistance because she believed them to be loans conditioned on her not giving up the baby for adoption. The father testified that the offers were unconditional and that he never followed through on them because the mother refused the offers. The father testified that he assisted her to the extent she would allow him to do so. He further testified that the mother said she could not give the baby up for adoption if she took money from him.
It is clear from the record that the mother has continuously insisted that the baby be given up for adoption. The father, to the contrary, has steadfastly insisted on raising the child just as he is raising three children from a previous marriage. This was the major source of dissension between the two and was the reason stated by the mother for not accepting the assistance offered by the father. The district court properly considered her refusal as a factor in determining if the father provided support to the mother. The district court found her refusal a reasonable cause for the natural father’s not paying more support than he did.
Reviewing the evidence in the light most favorable to the father, who prevailed in the district court, we conclude that sub stantial competent evidence exists to support the holding of the district court.
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The opinion of the court was delivered by
Davis, J.:
Plaintiff, Marty Louis Kenyon, appeals from an adverse jury verdict in this personal injury action, claiming that the trial court’s application of the provisions of the Overhead Power Line Accident Prevention Act (OPLA), K.S.A. 66-1701 et seq., constituted reversible error. He contends that OPLA was improperly enacted under Article 2, § 14 of the Kansas Constitution and is, therefore, void.
On November 29, 1990, plaintiff was injured when the metal ladder he was moving at a work site came into contact with an overhead power line. Kenyon filed this action against Kansas Power & Light Company (KP&L), seeking compensation for his injuries. The trial court instructed the jury in accordance with the provisions of OPLA, and the jury returned a verdict assessing zero percent fault against KP&L.
During the 1990 legislative session, the House Appropriations Committee introduced H.B. 3086, “The Overhead Power Line Accident Prevention Act.” Section 6 (b) (which is now K.S.A. 66-1706[b]) was not included in the version passed by both houses of the Kansas Legislature:
"In a civil action in a court of this state when it is shown by competent evidence that damage to any high voltage overhead line owned or operated by a public utility, a personal injury or other damages occurred as a result of a violation of this act, there shall be a rebuttable presumption that the person violating the provisions of this act was negligent as a result of such violation.”
When the enrolled bill was returned by the printer to the legislature, section 6(b) was included. Apparently this went undetected and the enrolled bill, with section 6(b), was signed by the officers of the Senate and the House, sent to Governor Hayden for his signature, and signed by the Governor.
There is no dispute that both houses of the Kansas Legislature passed a version of OPLA that did not contain K.S.A. 66-1706(b). There also is no dispute that the House and Senate officers signed a version of the bill that erroneously contained K.S.A. 66-1706(b). The governor signed the version of the bill containing K.S.A. 66-1706(b). Thus, the bill that passed both houses of the legislature was not the bill signed by the governor.
The trial court found that K.S.A. 66-1706(b) was invalid but severable, “leaving the remainder of the Act valid, enforceable and applicable.” Plaintiff argues that the entire Act is unconstitutional because it was not enacted in accordance with Article 2, § 14 of the Kansas Constitution.
Article 2, § 14 of the Kansas Constitution provides in pertinent part:
“(a) Within ten days after passage, every bill shall be signed by the presiding officers and presented to the governor. If the governor approves a bill, he shall sign it.”
According to Article 2, § 13 of the Kansas Constitution, a bill is “passed” when a majority of the members of each house vote in the affirmative in support of the bill. Thus, our Constitution requires that the bill presented to the governor be the bill on which both houses of the legislature agreed. Because the bill signed by Governor Hayden contained section 6(b) and was not the bill passed by the legislature, plaintiff argues that the entire enactment is unconstitutional and void.
Before discussing this contention, we nóte that the 1993 legislature repealed K.S.A. 66-1701 through 66-1708 and enacted a new bill that includes a version of the previously deleted section 6(b). See L. 1993, ch. 119, § 6. Governor Finney signed H.B. 2410 on April 5, 1993. That statute is not at issue in this case.
Our decision in Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771 (1963), resolves the issue in this case. In Harris, as here, the governor signed a bill that differed from the bill passed by the legislature. In addressing the constitutionality of the law signed by the governor, we summarized the rules applicable to Article 2, § 14 that govern transfer of a bill introduced in a legislature into law:
“[T]he legislature and the governor exercise co-ordinate functions in enacting laws, and the governor is an essential part of the legislation. [Citations omitted.] . . . [U]ntil a bill has the final consideration of the three lawmaking powers, that is, the house, the senate, and the governor, it is not a law. [Citations omitted.] .... [A] bill never becomes a law until the constitutional prerequisites respecting the manner of enactment have been fully complied with.” 192 Kan. at 194.
We concluded in Harris that we did not have the power to change the statute so that it conformed with the bill that the legislature passed:
“The long and short of this case is that,the bill passed by both houses of the legislature was not the bill approved and signed by the governor and this court has no authority to insert what was omitted. The requirements of Article 2, Section 14, are mandatory that the governor sign the same bill which passed the legislature. It follows that the enrolled bill the governor signed . . . was not made into law in the form and manner prescribed, and is a void enactment.
“. . . It is lamentable that error on the part of engrossing clerks and legislative committees should defeat the action of the legislature. But the strict rule calling for full compliance with constitutional requirements is, in the long run, a good one. In some cases it may work a hardship, but, by and large it is beneficial to our republican form of government.” 192 Kan. at 200.
Accord Ziegler v. Junction City, 90 Kan. 856, 136 Pac. 223 (1913) (invalidating enactment signed by the governor because it was never passed by the senate).
KP&L attempts to distinguish Harris and its predecessors, arguing that there is no constitutional infirmity that affects the entire bill in this case. According to its contention, the governor signed the bill passed by the legislature because the bill he signed contained everything that was in the bill the legislature passed, although it just happened to contain an additional provision, section 6(b). According to KP&L’s argument, because the legislature did not pass the additional provision, it was never properly before the governor and may be severed from OPLA.
KP&L’s argument fails to acknowledge that the bill presented to the governor was different from the bill passed by the legislature. The bill signed by the governor contained a provision that the legislature had deleted. Although the legislature’s intent may be clear, the governor’s intent is not. We have no way of knowing whether the governor would have signed the bill if it had not contained section 6(b). If we were to adopt KP&L’s reasoning, we would be minimizing the importance our constitution vests in the governor of this state in the process of enacting laws governing the citizens of this state. The legislature and the governor are equally important:
“In the making of laws under our constitution, the governor and the legislature are coordinate branches. That -is the way the writers of the constitution intended it should be. The one is about as important as the other. The court will not for reasons of expediency reach a conclusion that will enable either one to bypass' the other.” State, ex rel., v. Robb, 163 Kan. 502, 515-16, 183 P.2d 223 (1947).
KP&L attempts to distinguish Harris and Robb on the basis that in those cases the court declined to add language to a statute. KP&L contends that deleting language, as it suggests in this case, is different from adding language. KP&L also argues that Ziegler is distinguishable because it involved a bill that was not approved by one of the houses of the legislature, whereas the bill in this case that was enacted by the legislature was not signed by the governor.
These are distinctions without a difference. Although this court has the power to delete unconstitutional language from an otherwise valid legislative enactment, the deletion of section 6(b) in this case will not' make the Act constitutional. The constitutional infirmity is the manner in which the bill was enacted. We are unable to correct that infirmity by making the language in the Act match the language of the house bill passed by both houses of the legislature. The infirmity is that the governor did not have the opportunity to review and approve or veto the Act as passed by the legislature.
KP&L also argues and the trial court agreed that section 6(b) properly may be severed, leaving intact the remainder of the Act under general common-law principles of severability and in light of the severance clause contained in OPLA. Severability, however, becomes an issue only when a portion of a constitutionally enacted law is deemed to be unconstitutional. Each of the cases KP&L cites involved severance of an unconstitutional portion of an otherwise valid legislative enactment. State ex rel. Stephan v. Carlin, 229 Kan. 665, 630 P.2d 709 (1981) (severing portion of act that violated one-bill/one-subject rule); Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 618 P.2d 837 (1980) (severing portion of act that contained an unconstitutional delegation of legislative power); State v. Next Door Cinema Corp., 225 Kan. 112, 587 P.2d 326 (1978) (severing unconstitutionally vague portion of statute); Wall v. Harrison, 201 Kan. 600, 443 P.2d 266 (1968) (severing portion of act that unconstitutionally extended the terms of county officers beyond that allowed by constitution); State, ex rel., v. Owens, 197 Kan. 212, 416 P.2d 259 (1966) (severing as unconstitutional portion of act authorizing commitment of juvenile offenders to state industrial reformatory); Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P.2d 836 (1958) (severing unconstitutional language in otherwise valid enactment); State v. Goza, 4 Kan. App. 2d 309, 605 P.2d 594 (1980) (severing unconstitutionally vague portion of statute).
Unconstitutional provisions in otherwise valid statutes may be severed under appropriate circumstances. That is not, however, the issue before the court. We are presented here with an entire Act that was enacted in a manner that did not satisfy our constitutional requirements. Accordingly, the enactment is void. Harris, 192 Kan. at 200.
Finally, KP&L urges us to adopt a more liberal rule similar to one adopted by the Florida Supreme Court in Gwynn v. Hardee, 92 Fla. 543, 110 So. 343 (1926). In Gwynn, the Governor of Florida signed a bill that inadvertently contained a section which had been amended out of the bill prior to passage by the legislature. The Florida Supreme Court severed that portion of the bill that had been amended out by the legislature and explained that “the genuine provisions [of the bill] are distinct from and independent of the spurious [section amended out so]. . . that they will not be affected by the latter.” 92 Fla. at 555. Gwynn concluded that “[t]o declare the entire act invalid because it contains the spurious matter would frustrate the legislative will, not because of an unconstitutional act or omission of the Legislature, but because by a clerical error a spurious provision was inserted in the bill after its passage.” 92 Fla. at 558.
The adoption of Gwynn would require us to overrule Harris. We rely on Harris in disposing of the issue before us. In Harris we noted:
“Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where tire intention of the legislature is plain and unmistakable. But the court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.’ [Russell v. Cogswell, 151 Kan. 793, 795, 101 P.2d 361 (1940)].
“The rule is somewhat more limited than asserted by counsel. Generally speaking, courts have no right to correct errors made in an enrolled bill and they will ordinarily take the latter as they find it, and if not constitutionally enacted, will declare it void. [Citations omitted.] Nearly all the cases holding that errors and mistakes may be corrected deal with errors and mistakes apparent on the face of the legislative enactment, either standing by itself or in connection with other well-known facts. Very few of such cases deal with the question whether the procedural steps in enacting the law have been followed; that is, whether the act signed by the governor was the act passed by the legislature. In other words, such cases deal in the main with the construction of the legislative enactment rather than the validity of the procedure or steps of its enactment. [Citation omitted.] In State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R. 2d 750, it was held that the construction of a statute, the function of a court to ascertain its scope and meaning, is not to be confused with the duty of determining its validity when measured by constitutional guaranties.” 192 Kan. at 196.
Finally, plaintiff raises a second alternative issue, arguing that if the trial court properly applied OPLA, it should have instructed the jury concerning K.S.A. 66-1706(c). Because we hold that OPLA is unconstitutional and the trial court improperly applied it to this case, we need not reach plaintiff’s alternative issue.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Victor Vaughn, from his conviction for aggravated robbery.
The robbery occurred in 1981. The defendant was convicted in September of 1991. He alleges on appeal that he was denied a speedy trial and, in the alternative, that the trial court committed trial errors.
On the evening of October 16, 1981, Janet Schrunk, age 17, was the sole employee working at Le Jardín Flowers, a shop in Prairie Village, Kansas. At that time, Angie Surdez, age 15, was the sole employee working at Laura’s Fudge Shop. The fudge shop and flower shop have an inside connecting door. At approximately 8:15 p.m., Angie Surdez indicated to Janet Schrunk that two men loitering outside the shops looked suspicious. Several minutes later, the two men entered the fudge shop.
One man remained in the fudge shop, and tire second man went into the flower shop. The man who remained in the fudge shop put on a mask, took out a gun, and robbed Angie Surdez of both the store’s money and Angie’s purse and its contents.
The second man entered the flower shop and went behind the counter. He displayed a handgun and demanded money. He was given the contents of the cash register and went back through the connecting door to the fudge shop.
Janet Schrunk was able to provide a description of the man who robbed her and made a composite of him for the police. She later looked through some mug books in Kansas City, Missouri, but was unable to locate a picture of the man who robbed her. In April 1982, she was shown a photo lineup which she testified had at least eight pictures in it, and she was able to identify the defendant as the man who robbed the flower shop.
Angie Surdez testified at trial that she also looked at the mug books in Kansas City and was unable to locate a picture of either man. She testified that she did identify the man who robbed her from a photo lineup. She identified the defendant in court in 1991 as looking like the man who went into the flower shop in 1981.
Donald Cox was a detective with the Prairie Village Police Department at the time of the 1981 incident. Cox testified that he presented the photo lineup to the two witnesses some six months after the robbery. Cox testified that he had never indicated to a witness at a photo lineup which person the witness should pick out. Conflicting evidence was presented that Cox had on a prior occasion pointed out the photo of a person he wanted the witness to identify as having committed a robbery.
Cox further testified that a confidential informant, Clay Miller, had named Victor Vaughn as one of the men involved with the robbery of the flower shop and fudge shop. Clay Miller testified at trial that he did not know Victor Vaughn and had never heard of him at the time he furnished confidential information to Officer Cox. He denied that he had furnished Vaughn s name to Cox.
The defendant’s theory was that he was mistakenly identified as being involved in the robbery. The facts concerning this theory will be developed as they relate to the specific issues raised by the defendant.
The defendant was found guilty of aggravated robbery and sentenced to a term of incarceration of 15 years to life. That sentence was doubled pursuant to the Habitual Criminal Act, and the defendant’s sentence was determined to be subject to K.S.A. 21-4618 (the gun statute).
I. CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
The crime for which the defendant was charged was committed on October 16, 1981, and the complaint was filed on May 11, 1982. The defendant first appeared in court on March 7, 1991. He was not convicted until September 11, 1991, more than nine years after the complaint was filed. The defendant contends that this delay violated his constitutional right to a speedy trial.
The United States Supreme Court considered the Sixth Amendment right to speedy trial in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S.Ct. 2182 (1972). There the Court recognized that deprivation of the right to speedy trial does not in itself automatically prejudice a defendant’s ability to defend himself and that there is no fixed time limit to determine when the right to speedy trial has been denied. Barker, 407 U.S. at 521-22. Rather, determination of whether the right has been violated must be based on an analysis of the facts and circumstances of each case.
The Barker Court set forth a’balancing test which weighs the conduct of both the State and the defendant in determining whether the right to a speedy trial has been violated. Four factors are considered: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his or her right, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530. This court has adopted the Barker balancing test for determining whether an accused’s constitutional right to a speedy trial has been violated. State v. Brown, 249 Kan. 698, Syl. ¶ 6, 823 P.2d 190 (1991); State v. Otero, 210 Kan. 530, 532-533, 502 P.2d 763 (1972).
The trial court here heard the defendant’s motion to dismiss on the speedy trial issue on September 9, 1991. In denying the defendant’s motion, the trial court stated:
“[TJhat’s the posture of the law and the law obviously places upon you as a prisoner out of state upon notice of a warrant being filed against you if you choose to seek a timely disposition of that warrant under the Uniform Act on Mandatory Disposition of Detainers. Now, if you do that, fine. If you do not, then you forfeit, in effect, that procedural right.”
The trial judge also stated:
“Mr. Vaughn, it is a one-way street once you are notified of the fact that another jurisdiction wants you on some specific charge. At that point, the ball is in your court, as the expression goes, and it’s up to you to seek and employ the procedural statutes of Kansas to seek a timely disposition of those charges against you. If you don’t do that and if you sit in Missouri or someplace else serving the sentence without taking the appropriate steps under our disposition of detainers procedural act, then that is your choice and it is your consequence.”
Although the defendant did not employ the procedure designated by the Kansas Legislature by which persons imprisoned outside the state may request final disposition of charges pending against them, K.S.A. 22-4401 et seq. (Interstate Agreement on Detainers Act), the trial judge was not correct in stating that this was the only manner by which Vaughn could invoke the right to a speedy trial. A defendants constitutional right to a speedy trial exists notwithstanding his or her lack of compliance with the Interstate Agreement on Detainers.
“It is a well-established rule that the Legislature may, within reason, define what is meant by the constitutional guarantee of a speedy trial.” State v. Dolack, 216 Kan. 622, Syl. ¶ 3, 533 P.2d 1282 (1975). This the legislature did in enacting the Interstate Agreement on Detainers Act. That does not end discussion of the issue, however. Cf. Barker, 407 U.S. at 523-24, 528 (Court rejected restricting speedy trial right to cases where the accused has demanded a speedy trial); Ekis, Petitioner v. Darr, 217 Kan. 817, 826-27, 539 P.2d 16 (1975) (after finding that the defendant had failed to comply with the Interstate Agreement on Detainers, this court continued to apply the Barker balancing test). Analysis of the defendant’s right to a speedy trial under the Constitution is appropriate despite his failure to comply with the Agreement, and his failure to request a trial pursuant to the Interstate Agreement on Detainers is a factor in the balancing test.
Nearly 10 years elapsed from the date this offense was committed to the date the defendant was convicted, and nearly nine years elapsed from the date the defendant was charged with this offense to the date he first appeared. in court. The length of delay, therefore, is substantial.
The defendant was incarcerated in Jefferson City, Missouri, prior to the time the complaint was filed. He received notice of the pending charges as evidenced by his attempts on October 13, 1983, and May 18, 1987, to have the charges dismissed. The 1983 motion included the defendant’s Jefferson City, Missouri, address. The 1987 motion also contained the defendant’s address and notice of his custodial status with the Missouri Department of Corrections.
The State has the duty to bring a defendant to trial; the defendant has no such duty. Barker, 407 U.S. at 527. See Otero, 210 Kan. at 533. However, the Barker Court emphasized that it is difficult for a defendant to prove denial of the right to speedy trial when the defendant has failed to assert that right. Barker, 407 U.S. at 532.
The defendant’s counsel conceded here that he did not formally file a request for disposition of the detainer. However, the defendant claims he made several efforts to resolve this case which show his assertion of the right to timely disposition. He filed a motion for a bill of particulars on October 13, 1983, alternatively seeking dismissal. His May 18, 1987, motion to quash warrant clearly indicates his claim of lack, of prosecution and asserts his right to timely disposition of this case, but the motion does not request a trial. The defendant and his counsel also stated that the defendant hired an attorney in 1988 to look into the status of this case, but that attorney was unable to obtain any information because the prosecuting attorney’s office was unable to find a record of Vaughn’s case. No evidence was offered on this point, and we are unwilling to weigh arguments as evidence.
In Barker, 407 U.S. at 534-35, the Court acknowledged that the defendant’s failure to object to the multiple continuances sought by the State was due to his desire to delay the proceedings in the hopes that his codefendant would be acquitted. Here, the defendant wanted his case dismissed as evidenced by the two motions he filed while he was incarcerated in Missouri.
Defendant never requested a trial. In fact, he was going to great lengths in an effort to avoid a trial and to otherwise dispose of this case. The defendant did not specifically assert the right to speedy trial here, and that fact weighs heavily against him.
The Barker Court indicated three factors which may show prejudice: oppressive pretrial incarceration; anxiety and concern of the accused; and, most important, impairment of the defense. Barker, 407 U.S. at 532.
The defendant was not subject to pretrial incarceration here. He was subject to some anxiety and concern as evidenced by his attempts to resolve this case while he was incarcerated in Missouri. There is no showing that his defense was impaired by the delay. The defendant has not established that he was prejudiced by the delay here.
Multiple evidence in this case was lost due to the delay in bringing the defendant to trial. The lost evidence included police reports. Further, the photo array from which Janet Schrunk iden tified the defendant as the man who robbed her was not preserved. It is speculation, however, whether the missing police reports would have provided additional information concerning the offense, and nothing in the record indicates that preservation of the photo array would have established defects in the procedure.
The defendant relied on an alibi defense at trial. One witness testified as an alibi witness, clearly recalling the October 16, 1981, date in question. The defendant also attempted to rely on evidence that someone else (Jay Brahm) had actually committed the offense. A witness testified that he introduced Eddie Baxter (Vaughn’s codefendant) to Jay Brahm (whom Baxter claimed was with him, rather than Vaughn, when the offense for which Vaughn was convicted was committed) sometime in the middle of October, but he was unable to recall the exact date.
The defendant does not argue that his defense was impaired due to the lost memories of potential witnesses. Nor does he claim he was unable to locate other alibi witnesses. In fact, the delay may have impaired the prosecution from impeaching the defendant’s witness.
“[T]he inability of a defendant adequately to prepare bis case skews the fairness of the entire system. . . . There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” Barker, 407 U.S. at 532.
Here, impairment to the defendant’s defense because of the lost memories of witnesses is only speculative; there is nothing in the record to indicate that other witnesses exist who could not be located or that other testimony is unavailable.
This court in Otero, 210 Kan. 530, applied the Barker balancing test and found that, where the defendant was incarcerated out of state but upon notice of the charges wrote the county attorney in Kansas demanding that he be returned for trial, a delay of more than eight years violated the defendant’s constitutional right to a speedy trial. The court declined to presume prejudice arising from the lengthy delay, but balanced the factors and held that the defendant had been deprived of his right to a speedy trial. Otero, 210 Kan. at 536.
The United States Supreme Court has indicated that prejudice may be presumed. The Court stated that “consideration of prejudice is not limited to the specifically demonstrable, and . . . affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett v. United States, 505 U.S. _, 120 L. Ed. 2d 520, 530, 112 S. Ct. 2686 (1992). The Court went on to state:
“[W]e generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria [citation omitted], it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 120 L. Ed. 2d at 531.
The Court went on to hold that an eight-year delay between indictment and arrest presumptively prejudiced the defendant and deprived him of his right to speedy trial.
“[Njone of the four factors identified [in Barker] is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533. When the right to a speedy trial has been violated, dismissal is the only remedy. Barker, 407 U.S. at 522; Strunk v. United States, 412 U.S. 434, 439-40, 37 L. Ed. 2d 56, 93 S. Ct. 2260 (1973).
We are persuaded that the defendant in this case was incarcerated out of state and failed to exercise a means readily available to him to obtain a speedy trial. The defendant did not seek trial. What the defendant wanted was to have his case dismissed, and he made numerous efforts to do so, including filing actions in Missouri. The defendant was aware that there was a warrant and hold placed on him and knew, or should have known, the proper procedure if he wanted to come back to Kansas for trial. We cannot tell from the record before us whether the defendant was prejudiced or helped by the delay largely because the defendant did not offer evidence to show prejudice. The evidence offered by the State is to the effect that the defendant was not prejudiced, and the defendant’s effort to counter that evidence by speculation is insufficient. We hold that the trial court did not err in finding that the defendant had not been denied his constitutional right to speedy trial, although the trial judge may have given the wrong reason in so holding.
II. UNAVAILABLE WITNESS
The defendant contends that tire trial court erred in refusing to declare Eddie Baxter an unavailable witness so as to permit the defendant to introduce at trial Eddie Baxter’s testimony from the defendant’s preliminary hearing. Fifteen minutes before the fudge shop and flower shop were robbed, there was a robbery at a Fox Photo store some five blocks away. Eddie Baxter was one of two males who robbed the Fox Photo store and the fudge shop. The description of the second robber given by victim Bryan Slater at the Fox Photo store was somewhat similar to that given by Janet Schrunk and Angie Surdez of the defendant, Victor Vaughn, but there were discrepancies between the three descriptions and Victor Vaughn’s actual physical appearance. The trial judge did not allow testimony concerning the Fox Photo store robbery to be introduced in the Vaughn trial.
Baxter attended the preliminary hearing after receiving an out-of-state subpoena from the State. The defendant called Baxter to testify, and the substance of his testimony at the preliminary hearing concerned his involvement in the aggravated robberies of the Fox Photo store and the fudge shop. Baxter testified that he did not know the defendant at the time of the robberies and that the defendant was not with him when he and a third person committed the robberies. The State cross-examined Baxter, attempting to impeach him with his prior convictions involving truth and veracity. Baxter said he had only met the third person who committed the robberies once and was not sure of his name but thought his name was Jay Brahm.
The defendant Vaughn sought to have Baxter declared an unavailable witness at trial. Defense counsel stated, as an officer of the court, that she had attempted to locate Baxter but was unsuccessful. She indicated she had talked to Baxter on the phone on several occasions and that he was evasive and refused to give her a current address or phone number. She typically contacted Baxter by leaving a message with his mother in Springfield, Missouri, and Baxter would then call her collect. Defense counsel stated that Baxter had promised to testify on behalf of the de fendant, both at this trial and at an earlier trial which ended in a mistrial. He had fully cooperated at the earlier trial.
Defense counsel had arranged to meet Baxter at her office on the Sunday before trial and serve him with a subpoena at that time. She stated Baxter had not been in her office since she had been informed of the new trial date. She indicated that the address used by the State was that of Baxter’s mother in Springfield, Missouri, and that she was aware Baxter was no longer at that address. She further stated that she had every reason to expect cooperation from Baxter until Baxter’s mother told her the weekend before trial that the mother had been unable to locate him. Baxter failed to keep the scheduled Sunday meeting and did not appear for the defendant’s trial.
Defendant’s counsel further stated that she attempted to locate Baxter through friends and through his parole officer but was unsuccessful.
The trial court stated that “substantial further efforts on the part of the defense to secure his personal appearance were appropriate that were not accomplished.” We can only speculate as to what the trial court felt counsel failed to do. Defense counsel had no address for Baxter, and had checked with Baxter’s mother, friends, and parole officer, none of whom could furnish his address or knew his whereabouts.
An exception to the hearsay rule is recognized
“if the judge finds that the declarant is unavailable as a witness at the hearing!.] . . . [T]estimony given as a witness in another action or in a preliminary hearing or former trial in the same action . . . when . . . the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered [will be received].” K.S.A. 1992 Supp. 60-460(c).
“ ‘Unavailable as a witness’ includes situations where the witness is . . . (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.” K.S.A. 60-459(g).
The standard for determining if a witness is unavailable follows the “reasonable diligence rule” requiring “a good faith effort to obtain the witness’ presence at trial.” State v. Watie, Heard and Heard, 223 Kan. 337, 340, 574 P.2d 1368 (1978). The term “rea sonable diligence” has not been precisely defined, but it is clear that the availability of a witness turns on the totality of the facts and circumstances of each case. Watie, 223 Kan. at 340; State v. Bey, 217 Kan. 251, 254, 535 P.2d 881 (1975). “The inability of a witness to appear must be established by a ruling of the trial court or by agreement of counsel. The sufficiency of proof of unavailability is a question for the trial court within its discretion and its ruling will not be disturbed unless an abuse of discretion is shown.” State v. Steward, 219 Kan. 256, Syl. ¶ 6, 547 P.2d 773 (1976).
This court has addressed the unavailability of witnesses numerous times. We held no abuse of discretion in finding the witness unavailable in the following cases, for example: State v. Alderdice, 221 Kan. 684, 686-87, 561 P.2d 845 (1977) (subpoena delivered to witness’ mother, and when the State realized witness’ whereabouts were unknown, it dispatched officers to locate the witness; held, witness unavailable based on testimony of the officers who unsuccessfully searched for the witness); Bey, 217 Kan. at 254-55 (State issued subpoena for witness six days before trial, attempted to telephone witness upon realizing that subpoena was not served, discovered witness had moved to a new city, and attempted to have sheriff’s deputies in the new city contact the witness but did not have a new subpoena issued; held, witness unavailable because witness had been willing and cooperative, giving State no reason to anticipate difficulty in serving the subpoena, and issuing a subpoena to witness’ new address would have been useless considering that the sheriff’s office was not able to locate him); State v. Washington, 206 Kan. 336, 338-339, 479 P.2d 833 (1971) (multiple subpoenas had been issued, and investigator for State testified as to his efforts over the previous six months to locate the witness).
The trial court did not request evidence and expressed no dissatisfaction with accepting counsel’s statements about her efforts to locate Baxter. Counsel was present and could have testified had the court based its ruling on counsel’s failure to offer evidence. Obviously, counsel should have offered evidence.
We are persuaded that tire trial court erred in not permitting Baxter’s preliminary hearing testimony to be admitted at the trial.
Defense counsel, at the beginning of the trial and before jeopardy attached, told the court that she had talked to Baxter on the preceding Friday (via a collect telephone call) and that he had been very cooperative and had promised to be in her office on Sunday. When he failed to keep the appointment, she learned that he had not been reporting to his parole officer and that his parole officer had no current address or telephone number for Baxter.
Under the totality of the circumstances, we find it was reversible error to refuse to admit Baxter’s testimony from the preliminary hearing.
III. LIMITING THE EXAMINATION
Defendánt claims that the trial court violated his constitutional rights by limiting his examination of two witnesses. His complaints go to Detective Cox and the photo lineup he showed to Bryan Slater, the victim in the Fox Photo store robbery. He also complains that he was not permitted to examine Bryan Slater concerning the description of the robber who accompanied Eddie Baxter in the Fox Photo store robbery, nor was he permitted to question Slater extensively enough about the photo lineup Detective Cox showed Slater.
The State initially charged both Eddie Baxter and Victor Vaughn with robbery of the Fox Photo store. Bryan Slater, who was working at Fox Photo, identified Eddie Baxter from a photo lineup as one of the men who robbed him. It appears that the State took the position at the preliminary hearing that both rob-beriés wei'e committed by two men, with the evidence suggesting that Eddie Baxter was involved in both incidents, and, therefore, if Victor Vaughn committed the second robbery, he also committed the Fox Photo robbery. The trial judge at the preliminary hearing did not bind Victor Vaughn over for trial on the Fox Photo robbery charge and dismissed that count.
At some time after the preliminary hearing, defense counsel talked to Bryan Slater and learned for the first time that Slater was unable to pick Eddie Baxter out of the initial photo lineup until Detective Cox suggested which picture he should identify.
The trial court ruled the evidence concerning the Fox Photo robbery was totally inadmissible and refused to permit any tes timony concerning that robbery but did permit Bryan Slater to testify that Detective Cox had impermissibly suggested who he should pick out of a ph'oto lineup. Slater was not allowed to testify that the photo lineup involved Eddie Baxter or the time, date, or place of the Fox Photo robbery.
Bryan Slater was permitted to testify as follows:
“Q. (By Ms. Asher [counsel for defendant]) Bryan, were you shown a photographic line-up by a Detective Cox approximately ten years ago?
“A. Yes I was.
“Q. And do you remember how many photographs were in that photographic line-up?
“A. There was eight or ten photographs in the line-up.
“Q. Okay. And was there a particular person in that line-up that you picked out?
“A. Um, not at first but, yéah, I did eventually pick somebody.
“Q. Could you tell us what you did when you looked at the photographic line-up?
“A. Well, I looked at the photographs for quite some time, about five minutes, and then, um, I told Detective Cox that I couldn’t pick anyone from the line-up. That I didn’t think that there was a person was in the line-up and then ....
“THE COURT: Counsel, let’s keep our questions direct for a simple response. Let’s avoid an opportunity for a narrative response that might bring information that we don’t want before the jury.
“Q. (By Ms. Asher) Okay. What did Detective Cox do after you told him you couldn’t pick anybody out of the line-up?
“A. He pointed to one of the pictures and said, ‘Áre you sure it’s not this person? Are you sure it’s not this guy? Might it be this guy right here? Are you sure it’s not this one?’ You know, like that, several times.
“Q. Okay. Did he do anything else? Did he show you anything else?
“A. Well, then I eventually said, yeah, yeah I guess that is the person and then he pulled that photograph away from the line-up and set it in front of me and then he pulled another photograph from the line-up and set them side by side and he said both these photographs are of the same person and I looked at them and they were.
“Q. Okay. And did he tell you anything about Mr. Baxter after that?
“MS. LEWIS [counsel for State]: Well, Judge, I object.
"THE COURT: Counsel, we’re not discussing Mr. Baxter, are we? Let’s talk about the implication and what Detective Cox did only. Let’s not inject names; all right?
“Q. (By Ms. Asher) Did he do anything else in regards to the line-up that you remember, Bryan?
“A. Um, he pointed out the fact that there was two pictures of the same person.”
The defendant argues that the Bryan Slater and Angie Surdez/ Janet Schrunk robberies were committed by the same two men, and therefore he should have been permitted to question Bryan Slater and Detective Cox about details concerning the Fox Photo robbery. Defendant’s theory is that his proffered examination of Bryan Slater and his cross-examination of Detective Cox would have shown that Slater’s description of the man who accompanied Eddie Baxter during his robbery coincided with Angie Surdez’ description of the man who entered the flower shop while she was being robbed, but that neither description fit the defendant. The defendant contends this fits with his theory that Jay Brahm, and not the defendant, committed the robberies with Eddie Baxter. The defendant claims that limiting his examination of Detective Cox and Bryan Slater violated his constitutional rights.
The admission of evidence rests in the sound discretion of the trial judge. See State v. Baker, 219 Kan. 854, Syl. ¶ 3, 549 P.2d 911 (1976); Herbstreith v. de Bakker, 249 Kan. 67, Syl. ¶ 11, 815 P.2d 102 (1991); State v. Pearson, 234 Kan. 906, 923-924, 678 P.2d 605 (1984). The scope of both direct and cross-examination is subject to reasonable control by the trial court. Herbstreith, 249 Kan. 67, Syl. ¶ 11; Pearson, 234 Kan. at 923-24.
“The primary test of admissibility of evidence is its relevancy to the issue in question.”
“Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact.”
“To be relevant, evidence of collateral facts must be confined to the issues, but need not bear directly on them. There must be some natural, necessary or logical connection between such evidence and the inference or result it seeks to establish.” Baker, 219 Kan. 854, Syl. ¶¶ 1, 2, 4.
The evidence proffered by defendant bears a relation to his theory that someone else committed the robbery. The trial court erred in refusing to permit the defendant’s proffered testimony of Detective Cox and Bryan Slater.
“When the state relies on direct evidence, circumstantial evidence that someone other than the defendant committed the crime charged is irrelevant in the absence of other evidence to connect such third person with the crime.” State v. Calvert, 211 Kan. 174, Syl. ¶ 3, 505 P.2d 1110 (1973); accord State v. Brown, 230 Kan. 499, 499-500, 638 P.2d 912 (1982). Here, a victim positively identified the defendant in a photo array within seven months of the incident and again at trial. The State relied on direct, rather than circumstantial, evidence to connect the defendant to the crime. However, Baxter’s testimony would have been evidence connecting a third party to the crime. Therefore, the proffered evidence concerning the description given by Bryan Slater of the man accompanying Eddie Baxter in the Fox Photo robbery is relevant. The trial court erred in excluding it.
IV. SENTENCE
The defendant also argues that the trial court abused its discretion in sentencing him to a base term of 15 years to life when the codefendant received a sentence of only 5 to 20 years for the same offense and in refusing to modify the sentence. The defendant does not, however, appear to claim that a sentence of 15 years to life in itself was unjustified; his claim that it was an abuse of discretion is based merely on the substantially shorter sentence the codefendant received. Having granted a new trial, this issue is moot.
V. ISSUE RAISED BY DEFENDANT
The defendant purported to amend his counsel’s discussion of Issue IV and to add an Issue V. Neither of the defendant’s contentions have merit.
For his amendment of Issue IV, the defendant claims that he received two 15-year to life sentences as well as a 5- to 20-year sentence. This is not supported by the record. He was sentenced to 15 years to life on one count of aggravated robbery, and that sentence was enhanced to 30 years to life pursuant to the Habitual Criminal Act. In any event, our granting of a new trial renders this issue moot.
The defendant’s purported Issue V is also meritless. Issue V raises a Fifth Amendment and Fourteenth Amendment claim as preserved by paragraph 8 of his motion for new trial. Paragraph 8 states: “The Court erred in not granting a mistrial when the State impermissibly questioned a witness as to the identity of the person who robbed her, referring to the Defendant, with the words ‘beyond a reasonable doubt’ thereby invading the providence of the jury.” The defendant contends that “[t]he question and issue of reasonable doubt’ progresses to the closing argument or statements made by the District Attorney to the jury that I could be found guilty by less than reasonable doubt.”
The exchange referred to by this issue is the State’s questioning of Janet Schrunk:
“Q. (By Ms. Lewis) Now, can you look around the courtroom and see if you can identify the man that, if you can identify beyond a reasonable doubt —
“MS. ASHER: — Objection, Your Honor, that is impermissible of tire State to define reasonable doubt.
“MS. LEWIS: I didn’t define it, Judge.
“MS. ASHER: Your Honor, that is an objectionable question.
“THE COURT: Sustained as to the form. Please rephrase.
“Q. (By Ms. Lewis) Can you look around the courtroom and identify anyone or identify anybody that robbed you on that particular occasion on October 16, 1981?”
Any error in the form of the State’s question was cured at the time of trial. The trial court thoroughly instructed the jury, including instructions that the State had the burden of proving its claims beyond a reasonable doubt and that the remarks of counsel do not constitute evidence. The defendant’s rights have not been violated in the manner he asserted in Issue V.
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The opinion of the court was delivered by
Lockett, J.:
The defendant pled guilty to three counts of vehicular battery, K.S.A. 1992 Supp. 21-3405b, a class A misdemeanor. The defendant was fined $1,000 and sentenced to one year’s imprisonment on each count, with the sentences to be served concurrently. The court ordered the defendant to serve 90 days of imprisonment by house arrest, to be followed by probation. The State appeals the court’s order allowing the defendant to serve the 90 days of imprisonment by house arrest rather than imprisonment required by 21-3405b(b)(2). The two issues raised are: (1) Does house arrest constitute “imprisonment” under K.S.A. 1992 Supp. 21-3405b(b)(2), and (2) was the sentence imposed illegal?
Patrick Scherzer, a former county commissioner in Wyandotte County, was charged with two counts of DUI; one count of driving a vehicle on a divided highway in the wrong direction, and six counts of vehicular battery of six different victims resulting from a traffic accident that occurred on December 21, 1992. Pursuant to a plea bargain, Scherzer pled guilty to three counts of vehicular battery. The State dismissed the remainder of the charges.
Prior to pleading guilty, Scherzer had challenged the constitutionality of the vehicular battery statute penalty requirement that a person is not eligible for release on probation, suspension or reduction of sentence, or parole until that person has served at least 90 days’ “imprisonment.” To support his argument, Scher-zer pointed out that aggravated vehicular homicide, K.S.A. 1992 Supp. 21-3405a, a class D felony, where a victim has died, expressly allows for house arrest or other residential confinement in lieu of imprisonment in the county jail, while vehicular battery, a class A misdemeanor, where the victim is not killed but injured, requires the defendant to serve 90 days’ imprisonment without the option of house arrest or other residential confinement. Scher-zer claimed that the differences in penalties between the two statutes constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
At sentencing, Scherzer sought to serve the 90 days of imprisonment by house arrest, and he argued that K.S.A. 21-4603b, the statute defining house arrest, made house arrest synonymous with imprisonment. The State, however, noted that the aggravated vehicular homicide statute specified house arrest could be imposed in lieu of imprisonment, while the vehicular battery statute required imprisonment. The State argued that Scherzer was not eligible for probation, house arrest, or work release until he had actually served 90 days’ imprisonment in the county jail. The State claimed that the legislature intended to exclude house arrest as an option of imprisonment for the crime of vehicular battery. The State also argued that the statute is constitutional. The State requested that the judge impose a $1,000 fine and sentence the defendant to serve one year’s incarceration in the county jail on each count.
The district court fined Scherzer $1,000 for each count and sentenced him to one year on each count, to be served concurrently. The district court then addressed Scherzer’s claims that the penalty imposed by 21-3405b was unconstitutional. The court reviewed the two statutes and their penalty requirements, then noted that vehicular battery required imprisonment prior to imposing other sentencing options. The State argued that the reason the legislature set the different penalties was that vehicular homicide is a class D felony and the offender could receive a longer sentence than a person convicted of a class A misdemeanor (vehicular battery). The district judge acknowledged the State’s argument but found that the legislature had merely overlooked the difference in the sentence requirements and stated it was “inconceivable . . . the legislature meant that if a person kills someone that they can be given house arrest but if they only injure someone they can’t be given house arrest.” The district judge found he would have to impose a harsher sentence for a misdemeanor than for a felony. He then applied State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), for the test of whether the constitutional prohibition against cruel and unusual punishment was violated. The judge reasoned that under such circumstances the penalty provision of 21-3405b offended the constitutional prohibition against cruel and unusual punishment and would be unconstitutional. The judge opined that by reading the vehicular battery statute as allowing the use of house arrest as imprisonment, the statute passed the test in Freeman and was constitutional.
The court granted Scherzer ■ probation to begin after he had served 90 days of imprisonment by house arrest, to be monitored by the Wyandotte County Pre-trial Services. Scherzer was also allowed to spend up to 20 hours a week on work release, with any time spent on work release to be added to his house arrest so that he would still have served a full 90 days of house arrest.
The State subsequently filed its notice of appeal in the Court of Appeals. The notice stated that the sentence allowing the defendant to serve the 90 days by house arrest instead of imprisonment violated the requirement of 21-3405b(b)(2). The same day, the State filed in the district court a motion to stay execution of Scherzer’s sentence. The State alleged that if the sentence was not stayed, the entire imprisonment portion of the sentence would be served before an appeal could be heard and the State would bé left without a remedy if the sentence imposed by the district court was found to be illegal. This was the first time the State had claimed that the sentence imposed by the district court was illegal. The district court did not rule on the motion.
A flurry of appellate activity followed. The State filed a motion in the Court of Appeals to stay the execution of the sentence until the appeal had been resolved. Neither the notice of appeal nor the docketing statement filed in the Court of Appeals stated the basis of or which appellate court had jurisdiction to hear the State’s appeal. On November 4, 1993, this court noted that the appeal had been filed in the wrong appellate court and ordered the case transferred under K.S.A. 20-3018(a) and (c). We then issued a show cause order requesting the State to establish the jurisdictional basis for the appeal. On November 24, 1993, this court issued an order staying execution of Scherzer’s imprisonment by house arrest.
JURISDICTION
The State characterizes its appeal as whether the sentence imposed by the district court is illegal. This court has previously accepted an appeal by the State alleging an illegal sentence, albeit without explaining the jurisdictional authority for our review of the sentence imposed. See State v. Keeley, 236 Kan. 555, 694 P.2d 442 (1985). We note this court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A. 1993 Supp. 60-2101(b). The court also has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504. We have jurisdiction to consider the State’s appeal.
DOES HOUSE ARREST CONSTITUTE “IMPRISONMENT”?
Was the district judge correct in determining that the legislature had merely overlooked the difference in the penalty imposed for aggravated vehicular homicide and vehicular battery? Did the legislature intend “that if a person kills someone that they can be given house arrest but if they only injure someone they can’t be given house arrest?”
A review of the legislative history of the vehicular battery statute supports the conclusion that imprisonment, under 21-3405b, was not intended to include house arrest.
The 1988 legislature, which authorized house arrest, L. 1988, ch. 115, § 7, also amended the aggravated vehicular homicide statute, L. 1988, ch. 47, § 3, and added the offense of vehicular battery, L. 1988, ch. 47, § 3, Ch. 47, § 1. The amendment to K.S.A. 1987 Supp. 21-3405a that allowed the mandatory imprisonment for aggravated vehicular homicide to be met by house arrest occurred in the same legislation that created 21-3405b, the vehicular battery offense, which does not mention house arrest as satisfying the mandatory term of imprisonment. L. 1988, ch. 47. The underlying bill was S.B. 111.
This bill began as a simple 15-line bill in the Senate Judiciary Committee that created the new crime of causing injury while driving under the influence of alcohol or drugs and made it a class E felony. The committee then amended the designation of the crime to vehicular battery and dropped the penalty to a class A misdemeanor. The committee of the whole in the Senate then split the offense into two degrees — the first, a class E felony, involved violations of K.S.A. 8-1567, and the other, vehicular battery in the second degree, a class A misdemeanor, applied if the violation was of K.S.A. 8-1568 or similar city or county laws. At the time the bill left the Senate, there was no requirement for a set period of imprisonment as part of the penalty.
The House Committee on Federal and State Affairs amended it and added the specific penalty provision of ineligibility for probation, suspension or reduction of sentence, or parole until at least 90 days’ imprisonment had been served. On final action by the House, the bill was amended to also include a variety of other related statutory amendments, but the minimum incarceration requirement was struck. At that time, an amendment to make aggravated vehicular homicide, 21-3405a, a class E instead of a class D felony was also added.
The bill was further amended in conference committee. The conference report signed by the six members of the conference committee added back in the 90 days’ minimum imprisonment and also included reference to house arrest as a permissible means of sewing the 90 days’ imprisonment. The conference committee report also added similar language to 21-3405a. The version of the conference committee report shown as being approved by a majority of the House matches the conference committee report. The version of the conference committee • report shown as being approved by a majority of the Senate differs from the House journal version and the signed conference committee report in that the house arrest language is absent from the penalty provisions for the offenses of vehicular battery and aggravated vehicular homicide.
After both houses passed S.B. Ill, it was engrossed, then enrolled and sent to the governor to be signed. The version that was engrossed and then enrolled does not include reference to house arrest for the offense of vehicular battery but does for aggravated vehicular homicide. The governor signed a version of the bill that did not match the conference committee version.
The legislature subsequently amended K.S.A. 21-3405b in 1990 and, in doing so, repealed the former version of 21-3405b. L. 1990, ch. 97, § 4. Nothing in the legislative history of H.B. 2880, which later became L. 1990, ch. 97, indicates the legislature believed that there was an error in engrossing the 1988 version of 21-3405b. The changes made in 1990 to K.S.A. 21-3405b were not substantive and did not affect the relevant penalty provision of the offense.
Scherzer claims that house arrest and work release are similar forms of imprisonment. Scherzer points out that Att’y Gen. Op. No. 84-9, stated that a person on work release was “imprisoned” as required by K.S.A. 1983 Supp. 8-1567 (d) and (e).
On three other occasions, the Attorney General has issued similar opinions. See Att’y Gen. Op. Nos. 83-123, 92-2, and 93-20. Opinion 92-2, in part, states at p. 4:
“This office has previously opined that ‘the term “imprisonment” includes not only actual incarceration in jail, but may refer to any situation in which the defendant’s liberty is restrained and he or she is subject to additional sanctions should an escape be made.’ ”
Opinion 93-20 concludes at p. 3:
"[T]o satisfy the mandatory imprisonment requirements imposed by K.S.A. 8-1567, the individual must be in custody. . . . [Cjonstant surveillance by law enforcement officials in a jail is not required .... The determining factor is the intent of the court and law enforcement officials to retain custody and control of the prisoner.”
An opinion of an attorney general, while sometimes persuasive, is not binding on this court. Greenwood v. Estes, Savings & Loan Commissioner, 210 Kan. 655, 661, 504 P.2d 206 (1972).
In State v. Martin, 14 Kan. App. 2d 138, 783 P.2d 1316 (1989), rev. denied 246 Kan. 769 (1990), the same issue was raised as to whether the statutory requirement of imprisonment for at least 90 days for a third conviction of DUI could be satisfied by being placed in a work release program. The Court of Appeals noted work release was not specifically mentioned in the DUI penalty provision and the term of imprisonment was not defined. The Court of Appeals applied our rationale in State v. Meredith, 236 Kan. 866, 696 P.2d 403 (1985), that time spent in an alcohol treatment program when the individual is not in custody or control of law enforcement officials does not satisfy the imprisonment requirement and determined work release did not qualify as imprisonment. We agree with the Martin court’s conclusion that work release is not imprisonment.
We note that the criminal code resulted from a massive revision undertaken in the 1960s, which was at least partly driven by a desire to eliminate inconsistencies in the existing crimes act. Kansas Judicial Council Special Bulletin: Criminal Code, p. 7 (April 1968). The sentencing article of the criminal code is to
“be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall.be committed for at least a minimum term within the limits provide by law.” K.S.A, 21-4601.
The manifest purpose of the criminal code in general and the sentencing article in particular is to avoid inconsistencies and to allow individualized sentencing dispositions whenever practicable.
Vehicular battery, K.S.A. 1992 Supp. 21-3405b, is unintentionally causing bodily harm to another human being which is done while committing a violation of K.S.A. 8-1566, 8-1567, or 8-1568, or the ordinance of a city or resolution of a county which prohibits any of the acts prohibited by those statutes. The penalty provision of the offense states;
“(b) Vehicular battery is a class A misdemeanor for which the offender, if the crime is committed while committing a violation of K.S.A. 8-1567 and amendments thereto or the ordinance of a city or resolution of a county in this state which prohibits any acts prohibited by that statute shall:
(1) Be fined not less than $1,000;
(2) not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment;
(3) be required, as a condition of any grant of probation, suspension or reduction of sentence, parole or other release, to enter into and successfully complete an alcohol and drug safety action program or a treatment program as provided in K.S.A. 8-1008 and amendments thereto, or both the education and treatment programs; and
(4) have driving privileges suspended, or suspended and restricted, as provided by K.S.A. 8-1014, and amendments thereto.”
Class A misdemeanors are punishable by a jail term of up to one year. K.S.A. 1992 Supp. 21-4502(l)(a). K.S.A. 1992 Supp. 21-3405b(b)(2) was repealed in 1992 and incorporated into K.S.A. 21-3412, battery.
The interpretation of a statute is a question of law, and this court’s standard of review is de novo. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). Statutory construction involves the application of a hierarchy of rules. The initial inquiry into this question must begin with the text of the statute. The rule of statutory construction to which all other rules are sub ordinate is that the intent of the legislature controls, if the intent can be ascertained from the plain language of the statute. Martindale v. Tenny, 250 Kan. 621, 626, 829 P.2d 561 (1992). If the statute is “plain and unambiguous” this court must “give effect to the [expressed] intention of the legislature,” 250 Kan. 621, Syl. ¶ 2, unless “‘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, [then] the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). When the text is unambiguous, there is no heed to consult extrinsic materials, such as legislative history. “No legislative history or extrinsic evidence of how the act evolved is necessary or relevant where the act contains no unrelated or unworthy matters and is clear on its face.” State ex rel. Stephan v. Board of Lyon County Comm’rs, 234 Kan. 732, 740, 676 P.2d 134 (1984).
The State argues that the ordinary meaning of imprisonment is to put someone in prison or jail. In essence, the State is asserting the provision for house arrest in K.S.A. 21-4603b is an alternative sentencing disposition to imprisonment, not an alternative form of imprisonment.
Webster’s Third New International Dictionary 1137 (1986) defines imprison: “1: to put in prison: confine in jail 2: to limit, restrain, or confine as if by imprisoning.” Black’s Law Dictionary 757, (6th Ed. 1990) defines imprisonment as “[t]he act of putting or confining a person in prison. The restraint of a person’s personal liberty.”
K.S.A. 1992 Supp. 21-3110, which defines words used in the criminal code, does not define imprisonment. The Kansas Criminal Code did not define the term imprisonment until the legislature included a definition of imprisonment, for the purposes of the sentencing guidelines act, in L. 1992, ch. 239, New § 3. That definition states: “ ‘Imprisonment’ means imprisonment in a facility operated by the Kansas department of corrections.” It should also be noted that in 1993, the legislature amended K.S.A. 8-1567 and added this definition of imprisonment for violations of city and county ordinances:
‘Imprisonment’ shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.” L. 1993, ch. 291, § 270(2).
Scherzer does not challenge the State’s definition of the term imprisonment. Instead, he asserts the fact the vehicular battery statute does not expressly prohibit house arrest as a form of imprisonment is more important than the fact it does not expressly provide for it. He points out that the house arrest statute, K.S.A. 21-4603b, does not preclude imposing house arrest for class A misdemeanors. He reasons house arrest is not probation, suspension of sentence, or parole, alternative sentencing dispositions defined in K.S.A. 1992 Supp. 21-4602, so, by a process of elimination, it must be an alternative form of imprisonment.
The legislature recognized tire use of house arrest when it granted the court or the Secretary of Corrections the authority to implement a house arrest program for defendants or inmates sentenced by the court or in the custody of the Secretary of Corrections when it enacted K.S.A. 21-4603b in 1988. The statute prohibited defendants who had committed specific crimes or had been denied parole from being placed on house arrest. House arrest is defined by 21-4603b as an individualized program in which the freedom of an inmate is restricted within the community, home, or noninstitutional residential placement and specific sanctions are imposed and enforced. House arrest may include electronic monitoring or voice identification-encoder. House arrest sanctions may include, but are not limited to, rehabilitative restitution in money or in kind, curfew, revocation or suspension of the driver’s license, community service, deprivation of nonessential activities or privileges, or other appropriate restraints on the inmate’s liberty.
Although the legislature had not defined imprisonment prior to 1992, it had set out authorized dispositions for a person who had been found guilty of a crime. The following review of several sentencing statutes indicates that the legislature does not intend house arrest to be imprisonment.
K.S.A. 1992 Supp. 21-4603 states that whenever any person has been found guilty of a crime, the court may (1) commit the defendant to the custody of the Secretary of Corrections or, if confinement is for a term less than one year, to jail for the term provided by law; (2) impose the fine applicable to the offense; (3) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial l-estitution. In felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of probation; (4) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution (in felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of suspension of sentence); (5) assign the defendant to a community correctional services program subject to such conditions as the court may deem appropriate, including orders l-equiring full or partial restitution; (6) assign the defendant to a consex-vation camp; (7) assign the defendant to a house arrest program pursuant to K.S.A. 21-4603b; (8) order the defendant to attend and satisfactorily complete an alcohol or drug education or training program; or (9) impose any appropriate combination of the foregoing sentencing options.
K.S.A. 1992 Supp. 21-4603 allows the judge to impose any combination of dispositions set out in the statute. One choice is imprisonment and another choice is house arrest. From the plain reading of the statute, one can conclude that impiisonment and house arrest are different dispositions available to the judge.
Other statutes indicate that house arrest is a condition of probation. K.S.A. 1992 Supp. 21-4610 sets conditions for pi-obation or suspended sentence. That statute provides the court with au-thoi'ity to impose or modify any general or specific conditions of probation, suspension of sentence, or assignment to a community correctional services pi'Ogram. The court is required to condition any order gi-anting probation, suspension of sentence, or assignment to a community correctional services px-ogram on the defendant’s obedience of the laws of the United States, the State of Kansas and the laws of any other jurisdiction to which the defendant may be subject. Subsection (3) allows the court to impose any conditions of probation, suspension of sentence, or assignment to a community correctional sei-vices program that the court deems proper. One option is to participate in a house arrest program pursuant to K.S.A. 21-4603b.
K.S.A. 8-1567 specifically states a person convicted of driving while under the influence of alcohol or drugs or of driving with a blood alcohol concentration of .10 or more may be placed under house arrest only after serving a specified term of imprisonment:
“(e) On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000. The five days' imprisonment mandated by this .subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. . . .
“(f) On the third or a subsequent conviction of a violation of this section, a person shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,000 nor more than $2,500. Except as provided in subsection (g), the person convicted shall not be eligible for release on probation, suspension of reduction of sentence or parole until the person has served at least 90 days’ imprisonment. . . . The 90 days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.’’ (Emphasis added).
K.S.A. 1992 Supp. 21-3405b(b)(2) provides that a person convicted of vehicular battery is not eligible for release on probation, suspension or reduction of sentence, or parole until the person has served at least 90 days’ imprisonment. In 21-3405a, aggravated vehicular homicide, the legislature modified imprisonment by stating it could be served either in the county jail, by house arrest, or by any other residential confinement. The legislature has used different language in two comparable statutes. The presumption is that the legislature made a conscious choice to use different language in the two statutes and intended a different type of sentence be imposed.
IS K.S.A. 1992 SUPP. 21-3405b UNCONSTITUTIONAL?
Having determined that the required minimum period of imprisonment in K.S.A. 1992 Supp. 21-3405b cannot be served by house arrest, we must address Scherzer’s Eighth Amendment challenge to the statute. Cruel and unusual punishment, as pro hibited by the Eighth Amendment tq the United States Constitution, involves punishment that shocks the conscience or “which seems inhumane or barbarous.” State v. Rouse, 229 Kan. 600, 605, 629 P.2d 167 (1981). 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 Commn, 251 Kan. 240, 243, 834 P.2d 368 (1992).
In State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), Freeman attacked the constitutionality of K.S.A. 1977 Supp. 21-4618, which denied probation to any defendant who had been convicted of an Article 34 crime in which the defendant had used a firearm. Freeman had been convicted of second-degree murder, and because she used a firearm, the statutory penalty excluded probation as a sentencing disposition. She appealed, attacking the statute as cruel and unusual punishment. The Freeman court noted that in determining whether the length of a sentence offends the constitutional prohibition against cruel and unusual punishment, three analyses should be considered:
“(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.”
The Freeman court, after comparing the statutory penalty for second-degree murder, applied the third prong, which compares the Kansas penalty with penalties from other jurisdictions, found the other jurisdictions’ penalties were as great as if not greater than the Kansas penalty, and upheld the constitutionality of 21-4618. 223 Kan. at 367-68.
Of the three prongs of the analysis to determine whether punishment is cruel and unusual, only the second prong is raised by Scherzer. He claims that by comparing the punishment set out in K.S.A. 1992 Supp. 21-3405b with punishments imposed in this jurisdiction for more serious offenses, there are found more serious crimes punished less severely than the offense in question, and therefore the challenged penalty is suspect.
The concern addressed in Freeman is disparity in the length of the sentence, not the place of sei'ving the sentence. Cruel and unusual punishment involves punishment that shocks the conscience or “which seems inhumane or barbarous.” The legislature is the branch of government entrusted with the power to set the punishment for a crime. State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991). The fact the legislature chose to allow house arrest for aggravated vehicular homicide offenders, and not for vehicular battery offenders, does not rise to the level of cruel and unusual punishment.
WAS THE SENTENCE IMPOSED ILLEGAL?
During oral argument, the State conceded Scherzer’s sentence is illegál only if house arrest is not a form of imprisonment. We have defined an “ ‘illegal sentence’ [as] either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory 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. Ruff, 252 Kan. 625, 628, 847 P.2d 1258 (1993). The jurisdiction of the court to impose the sentence or the ambiguity of the sentence is not at issue in this case. The sole challenge is whether this sentence does not conform to the statutory provisions.
K.S.A. 1992 Supp. 21-3405b requires 90 days’ imprisonment be served prior to any suspension of sentence. The district court did not have the authority to allow Scherzer to serve 90 days’ imprisonment by house arrest. The sentence imposed does not conform to the statutory provision and it is an illegal sentence. The matter is remanded to the district court for correction of the illegal sentence. As required by K.S.A. 22-3504, Scherzer is to be given full credit for the time spent under house arrest and ordered to serve the balance of the 90-day imprisonment in the county jail as required by 21-3405b.
Reversed and remanded for correction of the sentence. | [
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The opinion of the court was delivered by
Abbott, J.:
The issues in this appeal are what must be proved to recover “substitution benefits” under an automobile insurance policy and whether attorney fees should be paid by the insurance cari'ier.
The trial court held the minor child did not have to prove an “actual economic loss or any incurred expense” to receive “substitution benefits” under the policy. The Court of Appeals reversed the trial court’s decision in 18 Kan. App. 2d 344, 852 P.2d 520 (1993). The Court of Appeals held a plaintiff must prove actual economic loss in order to recover for reasonable expenses incurred. This court granted plaintiff’s petition for review.
This case was tried on stipulated facts. Tisha J. Hephner was killed in an automobile accident on January 25, 1991. Tisha was the mother of Tiphani J. Hephner, born March 17, 1987.
At the time of her death, Tisha had an automobile insurance policy with Traders Insurance Company which provided Personal Injury Protection (PIP) benefits, as required by the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq.
Tiphani Hephner is Tisha’s sole survivor under the insurance policy and KAIRA. Prior to Tisha’s death, she and Tiphani resided with Tisha’s parents' (Tiphani’s grandparents), Claude and Judy Hephner. Tisha was employed .at the time of her death, and Judy assisted with Tiphani’s care during Tisha’s work hours. Tiphani was born with multiple disabilities, and she attended Rainbows Unlimited for preschool and for physical and speech therapy both before and after Tisha’s death. After Tisha’s death, Claude and Judy cared for Tiphani and formally adopted her on September 20, 1991. Judy died on December 28, 1991.
KAIRA requires that all automobile owners provide motor vehicle liability insurance coverage, including PIP benefits. K.S.A. 40-3101 et seq. PJP benefits include substitution benefits and survivors’ benefits. K.S.A. 1992 Supp. 40-3103(q). “ ‘Substitution benefits’ means allowances for appropriate and reasonable expenses incurred in obtaining other ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed for the benefit of such person or such person’s family, subject to a maximum of $25 per day for not longer than 365 days after the date such expenses are incurred.” K.S.A. 1992 Supp. 40-3103(w). “ 'Survivors’ benefits’ means total allowances to all survivors for: (1) Loss of an injured person’s monthly earnings after such person’s death, up to a maximum of not less than $900 per month; and (2) substitution benefits following the injured person’s death.” K.S.A. 1992 Supp. 40-3103(y). A “survivor” is defined as “a decedent’s spouse, or child under the age of 18 years.” K.S.A. 1992 Supp. 40-3103(x).
The Court of Appeals phrased the issue before it as “Must a plaintiff prove actual economic loss in order to recover for reasonable expenses incurred?” Hephner, 18 Kan. App. 2d at 345. This construction was evidently based on two conclusions of law made by the trial court: (1) “It is sufficient for Plaintiff to recover survivors benefits if the Claimant is within the statutory definition of a ‘survivor’ without the necessity of proving actual economic loss or any incun-ed expense,” and (2) “Since Tiphani Hephner is a ‘survivor’ she falls into the definition of benefits to be provided by ‘substitution benefits’ under Defendant’s insurance policy and the Kansas Statutes. It is not necessaiy for Plaintiff to establish actual economic loss or expenses incurred to recover these benefits.” The Court of Appeals answered its question in the affirmative, holding that a plaintiff must prove genuine economic loss in order to recover substitution benefits. Hephner, 18 Kan. App. 2d at 345-46.
The Court of Appeals based its holding requiring genuine economic loss on three factors. First, the court considered the definition of “incur”: “ ‘To become liable or subject to, to bring down upon oneself, as to incur debt, danger, displeasure and penalty, and to become through one’s own action liable or subject to.’ Black’s Law Dictionary 768 (6th ed. 1990). See Webster’s Third New International Dictionary 1146 (1986).” Hephner, 18 Kan. App. 2d at 345.
The Court of Appeals next discussed the comments to the Uniform Motor Vehicle Accident Reparations Act, which includes a provision for replacement services benefits similar to the substitution benefits under KAIRA. The definition of “survivor’s replacement services loss” under § l(a)(5)(v) of the Uniform Motor Vehicle Accident Reparations Act means “expenses reasonably incurred.” 14 U.L.A. 35, 43 (1990). The comments state that recovery is limited to “reasonable expenses incurred, such as those in hiring a substitute to perform the services. For example, a housewife whose injury prevented her from performing services in the home could not attribute loss to the incapacity itself, but loss would be suffered if domestic help were hired to perform the services.” 14 U.L.A. at 46. In other words, recovery is permitted “to cover the cost of hiring someone to perform the services, rather than to compensate for the mere loss of the ability to perform them.” Hephner, 18 Kan. App. 2d at 346 (citing 1 No-Fault and Uninsured Motorist Automobile Insurance § 11.40, p. 11-46 [1992]).
Finally, the Court of Appeals cited cases from other jurisdictions which support a requirement of genuine economic loss or expenses actually incurred. These cases and others support such a requirement. See France v. Ky. Farm Bureau Mut. Ins., 605 S.W.2d 773 (Ky. App. 1980), rev. denied October 28, 1980; Schaible v. Mich Mutual, 116 Mich. App. 116, 321 N.W.2d 860 (1982), lv. to appeal denied 417 Mich. 920 (1983); Adkins v. Auto Owners Ins Co, 105 Mich. App. 431, 306 N.W.2d 312 (1980) (cited in Hephner), lv. to appeal denied 411 Mich. 912 (1981); Youmans v. Citizens Ins Co, 89 Mich. App. 387, 280 N.W.2d 539, lv. to appeal denied 407 Mich. 894 (1979); Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368 (Minn. 1984); Fandray v. Nationwide Mut. Ins. Co., 313 Pa. Super. 186, 459 A.2d 801 (1983) (cited in Hephner).
Two cases which hold that the plaintiff was entitled to replacement service benefits without having to prove actual economic loss are distinguishable because those cases turned on the language of the statute which made payment of the benefits mandatory. Rindahl v. National Farmers Union Ins., 373 N.W.2d 294 (Minn. 1985); Maros v. Transamerica Insurance Company, 76 N.J. 572, 388 A.2d 971 (1978). The provision for substitution services in KAIRA is different than the provisions in Rindahl and Maros; thus, those cases are of no assistance in the instant case.
The provision in KAIRA for substitution benefits providing coverage for “appropriate and reasonable expenses incurred” requires proof of genuine economic loss. The Court of Appeals did not err in so holding. This does not end the inquiry.
Tiphani argued in her petition for review and in her supplemental brief that she has proven actual expenses were incurred in obtaining ordinary and necessary services from Claude to replace those that her mother would have provided. She notes extensively the services Claude and Judy provided to Tiphani although they had no duty or obligation to do so and the expense she incurred in obtaining their services even though she has not yet paid the amount owed.
The Court of Appeals stated in its opinion that “Claude and Judy did not hire anyone to care for Tiphani; they have incurred no genuine economic loss.” Hephner, 18 Kan. App. 2d at 346. This statement, while correct, is irrelevant. Claude and Judy are not “survivors” under Tisha’s insurance policy and they are not eligible to recover these insurance benefits. Rather, their status and involvement in this case is only as the providers of ordinary and necessary services for Tiphani that her mother would have performed but for her death. In other words, Claude and Judy are the people performing the services Tisha was no longer able to perform. Claude’s name in the caption of this action as Ti-phani’s “next friend” does not make him a claimant under Tisha’s insurance policy. Tiphani is the beneficiary under Tisha’s insurance policy, and Claude is the provider of services. The question, therefore, is whether Tiphani has incurred actual expenses in obtaining replacement services, not whether Claude and Judy incurred such expenses.
Our Court of Appeals has addressed the level of proof required to recover insurance benefits. In DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 521, 661 P.2d 812 (1983), the court noted that a liberal construction of the notice provision of K.S.A. 40-3110 requiring payment of PIP benefits upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred is necessary to attainment of the purpose and objectives of the Kansas Automobile Injury Reparations Act. “[A]n insured has provided ‘reasonable proof’ of his right to recover PIP benefits whenever he furnishes to his insurer a bill for medical treatment which, when viewed with other objective facts furnished to the insurer, shows a clear relation to a covered loss.” DiBassie, 8 Kan. App. 2d at 519. Thus, where the insured provided medical bills corresponding to the injuries listed on his application for benefits and on the accident report, and where plaintiff’s attorney submitted a letter to insurer stating that the injuries were a result of the accident, the insured was entitled to prompt payment of benefits.
Traders argues in its supplemental brief that Tiphani did not provide proof of expenses incurred before instituting this action and therefore Miner v. Farm, Bur. Mut. Ins. Co., Inc., 17 Kan. App. 2d 598, 841 P.2d 1093 (1992), requires that Tiphani’s claim fail. However, nothing in the record shows that Traders raised this issue in the trial court. “[A] point not presented to the trial court will not be considered for the first time on appeal.” Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. ¶ 3, 809 P.2d 1216 (1991).
Several cases support reimbursing substitution services even when the services are provided by family members. The Michigan Court of Appeals compared substitution services benefits under its no-fault insurance (similar to KAIRA substitution benefits) to its workers disability compensation act and held that just as the workers disability compensation act was not concerned with the status of the person providing the services, neither was the no-fault insurance act concerned with the status of the service provider. Youmans, 89 Mich. App. at 391-92. Hence, compensation for substitution services provided by family members is available. See Fortier v. Aetna Casualty, 131 Mich. App. 784, 346 N.W.2d 874 (1984), lv. to appeal denied 419 Mich. 939 (1985); Butler v. DAIIE, 121 Mich. App. 727, 329 N.W.2d 781 (1982); Visconti v. DAIIE, 90 Mich. App. 477, 282 N.W.2d 360 (1979). Further, the Minnesota Supreme Court in Nadeau, 350 N.W.2d 368, implicitly held that substitution services provided by family members are compensable, although the court denied recovery to the insured because she had not proven that she actually incurred expenses for services rendered by her husband.
The provisions in KAIRA for substitution and survivors’ benefits contain no limitation on recovery merely because the services were provided by a relative of the insured or survivor. Therefore, although the services replacing those of Tiphani’s mother were provided by Tiphani’s grandparents, there is no limit in KAIRA for benefits for these services as long as Tiphani actually incurred expenses or liability for expenses in obtaining the services. Claude and Judy had no legal duty to care for Tiphani when Tisha died. They did so gratuitously until they adopted Tiphani on September 20, 1991. Although Judy had helped with Tiphani’s care during Tisha’s work hours before Tisha’s death, Tisha was responsible for most of Tiphani’s care and the care Claude and Judy provided to Tiphani after Tisha’s death far exceeded the limited assistance Judy had previously provided. Claude submitted an invoice to Traders which charges Tiphani $25 per day for custodial care services — this is an expense to be paid by Tiphani. Claude indicated at his deposition an intent to charge Tiphani for his services, even though he admitted that he would not require Tiphani to pay him unless she recovered the substitution benefits provided in Tisha’s insurance policy. Indeed, Claude stated that he regarded Tiphani as currently owing him a debt of $9,125 ($25 per day for 365 days) for the burden of custodial care he provided to her which he was not obligated to provide.
Several Michigan Court of Appeals cases provide assistance in determining whether the invoice and Claude’s deposition constitute sufficient proof that Tiphani is actually obligated to pay Claude $9,125 for the services he provided to her. In Fortier, 131 Mich. App. 784, the court held that records kept by the deceased insured’s children by marking on calendars the services they performed, the amount of time spent performing the services, and the fees charged for the services sufficiently established that the insured’s wife actually incurred expenses in obtaining services to replace those her deceased husband would have provided. There was no mention that the wife had actually paid the children for their services. In Youmans, 89 Mich. App. 387, the child resided with her natural father but was entitled to replacement service benefits under her deceased mother’s insurance policy to pay for expenses incurred when her father agreed or contracted with his new wife to provide the services the child’s natural mother had formerly provided. The court noted that the father’s new wife did not enjoy the rights of a parent nor was she liable for all the duties of a parent, and she did not legally replace the child’s deceased mother.
However, in Schaible, 116 Mich. App. 116, the court did not allow recovery for replacement services. There, the deceased insured’s husband testified that relatives had performed various tasks for him replacing services his wife would have provided, but he had not kept a record of the time spent or the expenses incurred. In fact, although the husband had agreed to compensate his relatives for their services if he won his lawsuit against the insurance company, he had not paid them from an earlier payment from the insurance company for replacement services nor was he able to indicate how much he had agreed to pay his relatives for their services. Schaible, 116 Mich. App. at 122. Thus, the court held that the husband failed to prove expenses incurred, and he was not entitled to recover for replacement services in addition to what the insurance had previously paid. Likewise, in Adkins, 105 Mich. App. 431, although the plaintiff estimated the value of her deceased husband’s services to be $15 to $20 per day, she was only permitted to recover for expenses she actually incurred as established by canceled checks showing she had paid others to perform services for her. See also Nadeau, 350 N.W.2d 368 (services were provided by insured’s husband but were not directly paid for by injured insured; Minnesota Supreme Court held that expenses were not incurred).
The evidence here is similar in some way to each of the above cases. Claude had no duty or obligation to care for his granddaughter (until he and Judy adopted her), yet he agreed to do so, as in Youmans. Neither Claude nor Tiphani kept a record of each service Claude performed for Tiphani, unlike the children in Fortier. However, Claude was not performing isolated services for Tiphani on an as-needed basis. Rather, Claude was providing Tiphani daily care 24 hours a day, 7 days a week; a day-to-day record of this would be unnecessary. Claude did provide written documentation to Tiphani charging her $25 per day for his services. As in Schaible, however, Claude indicated at his deposition that he did not intend to make Tiphani pay for his services if she. did not recover substitution benefits from Traders. Finally, both parties have agreed that the reasonable value of a primary child care provider exceeds $25 per day, similar to the estimate in Adkins. Here, however, an invoice charging for the services was provided, which was lacking in Adkins.
While the question of whether Tiphani actually incurred expenses or a liability for'expenses in obtaining substitution services is obviously a close one, we believe she has established genuine economic loss. Tiphani was three years old and disabled when her mother died. Claude and Judy provided substantial care to Tiphani after her mother died although they were not obligated to do so. Claude provided an invoice charging Tiphani $25 per day for his services, an amount which Traders agrees is less than the reasonable value of a primary child-care provider. Claude considers Tiphani to be indebted to him, even though he admits he will not collect from Tiphani unless she recovers substitution benefits from Traders. Although Tiphani has not yet paid Claude, she has incurred an obligation to pay him as evidenced by the invoice. Liability for expenses can be incurred but payment deferred for a period of time. Cf. DiBassie, 8 Kan. App. 2d 515 (plaintiff not required to provide canceled checks showing payment of medical bills; rather, submission of medical bills constituted reasonable proof of liability for expenses incurred). We hold Tiphani has provided reasonable proof of liability for expenses incurred in obtaining ordinary and necessary services to replace those of her mother.
Traders argues that Claude charged Tiphani for his services only in an attempt to obtain insurance benefits. Somehow, it does not seem appropriate for an insurance carrier to argue it should not have to pay because the insured’s primary motive in doing an act is to obtain insurance benefits. One of the rationales for disallowing replacement services benefits when the services are provided by family members is to insure that expenses have been legitimately incurred and to protect against fraud and collusion. See Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574, 576, 277 S.E.2d 675 (1981) (statute disallowed replacement services benefits when services were provided by family members). But see Fortier, 131 Mich. App. at 791 (replacement services benefits compensable even when services are provided by family member; plaintiff only required to prove she incurred a liability because requiring documentation such as checks, receipts, and bills would not prevent collusion as the parties Could easily pass the documents between themselves). Traders argues that it has paid Ti-phani survivoi’’s benefits totalling $10,800 to date and that she has not paid Claude for his services with that money, thus arguing that she has not legitimately incurred expenses.
There is no requirement in K.S.A. 1992 Supp. 40-3103(w) or elsewhere that substitution services be provided by someone other than a family member. The fact that Tiphani is Claude’s natural granddaughter does not negate the time and money he invested in caring for her after her mother died. It is reasonable that Claude charged Tiphani for his services. Indeed, were Claude not a blood relative Tiphani would be permitted to recover substitution benefits with which to pay her bill to him. Although Tiphani has received $10,800 thus far from Traders, that money was in settlement of the funeral expenses and lost wages for Tisha. Tiphani is not required to use that money, if indeed it has not been used to pay other expenses, to pay for substitution services. That Claude is letting Tiphani defer payment for his services until she receives compensation from Traders does not mean that she has not incurred genuine economic loss. Tiphani should not be prevented from recovering substitution benefits merely because she is able to defer payment for those services until she receives compensation from the insurance company. Tiphani has incurred genuine expenses of $25 per day in obtaining substitution services due to Tisha’s death. Tisha’s insurance coverage provides reimbursement for the expense of substitution services. Traders, therefore, must pay Tiphani the $25 per day she incurred in obtaining substitution services.
The Court of Appeals panel notes that some may find its decision harsh but, if so, the remedy lies with the legislature. A three-year-old disabled child needs care. It is indeed harsh to say that if she has sufficient funds to pay for that care she is entitled to be reimbursed up to the policy limits, but if she has no money but is fortunate enough to have loving, caring relatives who are willing to care for her but do not jump through a hoop by seeing that she somehow pays them she cannot recover benefits to pay them. It does not seem to us to be the legislative intent to punish the poor and reward the more affluent, both of whom have paid the same premium. We, like the Court of Appeals, believe that if we are wrong in what the legislature intended, the legislature has it within its power to require that only reasonable expenses actually paid be reimbursed.
The insurance carrier filed a supplemental brief in this court, raising for the first time the issue whether the adoption by Claude and Judy would bar any claim for substitution benefits for care furnished by them after the date of the adoption. That issue was not raised in the pretrial order or any place in the record before us or in the bi'iefs filed in the Court of Appeals. Having failed to raise that issue in the tidal court (and also the Court of Appeals), the insurance carrier cannot raise it for the first time at this level. Plummer Development, 248 Kan. 664, Syl. ¶ 3.
We reverse the trial court’s award of attorney fees. Genuine disputes existed as to whether Tiphani had provided reasonable proof of her loss and as to whether she was entitled to recover and the insurance carrier did not refuse without just cause or excuse to pay the substitution benefits she requested. K.S.A. 40-3111(b); Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 577 P.2d 1202 (1978).
The judgment of the Court of Appeals is reversed; the judgment of the district court is affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a direct appeal by plaintiff, Donald R. McNemee, from an order of the district court upholding an exclusion in policies covering nonoccupied vehicles as authorized by K.S.A. 1979 Supp. 40-3108(a). The exclusion precludes “stacking” medical personal injury protection (PIP) benefits.
To obtain insurance loss payments on duplicate coverages is often referred to as “stacking,” and the word stacking refers to the ability of an insured to recover under two or more endorsements for a single loss suffered by the insured.
The facts of this case were stipulated by the parties. Highly summarized they are as follows: The plaintiff-insured owned three vehicles, a 1972 Ford van, a 1972 Chevrolet carry-all, and a 1972 Pontiac automobile. Plaintiff obtained three separate insurance policies. All policies contained identical PIP endorsements. Plaintiff was involved in an accident while driving the 1972 Ford van. The van was insured by the Truck Insurance Exchange. Plaintiff filed a claim and was paid the maximum $2,000.00 under the coverage provided in the policy for PIP medical expenses. The total medical expenses incurred by plaintiff totaled over $17,000.00. The plaintiff filed this action to collect PIP medical payments on the two other policies covering the nonoccupied vehicles, the 1972 Chevrolet carry-all and the 1972 Pontiac automobile. The trial court denied recovery and upheld an exclusion in the policies which precluded duplicate payments of PIP benefits.
The plaintiff-appellant, who is the named insured in all three policies, reasons that he paid premiums on all three policies, although no specific premium was charged for PIP medical coverage, and he should be entitled to payments under all policies. His medical expenses exceeded the total of the coverages under all three policies. The plaintiff’s argument is based upon the reasoning in the following analogous cases which involve the uninsured motorist coverage mandated by K.S.A. 40-284. Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969); Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P.2d 507, reh. denied 213 Kan. 84, 515 P.2d 1115 (1973); Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173 (1973); VanHoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P.2d 1354 (1976); Welch v. Hartford Casualty Ins. Co., 221 Kan. 344, 559 P.2d 362 (1977).
On the other hand, the insurance companies in supporting the court’s decision rely on a policy exclusion contained in each PIP endorsement attached to the three policies, and which reads: “Exclusions
“This coverage does not apply:
“(a) to bodily injury sustained by the named insured or any relative while occupying any motor vehicle owned by the named insured which is not an insured motor vehicle” Emphasis supplied.
In a subsequent paragraph in this endorsement appear certain definitions; included is the following:
“ ‘[Ijnsured motor vehicle’ means a motor vehicle of which the named insured is the owner and with respect to which (a) the bodily injury liability insurance of the policy applies and for which a specific premium is charged, and (b) the named insured is required or has elected to maintain security required under the Kansas Automobile Injury Reparations Act;” Emphasis supplied.
The defendant companies point to K.S.A. 1979 Supp. 40-3108(a) which authorizes this and other exclusions as follows:
“Any insurer may exclude benefits required by subsection (fi of section 7 [40-3107] of this act: (a) For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy, or for injury sustained by any person operating the insured motor vehicle without the expressed or implied consent of the insured.”
As to uninsured motorist coverage this court has held, when an injured person fits the definition of “insured” in more than one policy he may “stack” one uninsured motorist endorsement upon another and recover from each successively until the total of the limits of liability of all endorsements is exhausted or until the damages have been compensated. Welch v. Hartford Casualty Ins. Co., 221 Kan. 344.
It is apparent that the policy exclusion with which we are concerned in the present case was inserted in the endorsement to prevent the “stacking” of coverages and that the exclusion is authorized by the statute. The question in this case is whether “stacking” of PIP medical benefits is permitted. We hold that it is not. Any insurer may exclude benefits required by the Kansas Automobile Injury Reparations Act: For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy, or for injury sustained by any person operating the insured motor vehicle without the expressed or implied consent of the insured. When, as in the present case, the exclusion has been inserted in a PIP endorsement, the exclusion is binding on the parties. The exclusion is authorized by statute and governs the extent of personal injury protection benefits recoverable when inserted in an insurance contract.
We are not alone, for many states requiring personal injury protection benefits do not permit “stacking.” See State Farm Mut. Auto. Ins. Co. v. Castaneda, 339 So. 2d 679 (Fla. Dist. Ct. App. 1976); Ga. Casualty Sec. Co. v. Waters, 146 Ga. App. 149, 246 S.E.2d 202 (1978); Guerrero v. Aetna Cas. & Sur. Co., 575 S.W.2d 323 (Tex. Civ. App. 1978); Yarmuth v. Government Emp. Ins. Co., 286 Md. 256, 407 A.2d 315 (1979).
It is noteworthy that the State of Florida has a provision in its PIP statute, section 627.736(2)(a), which authorizes an exclusion to prevent “stacking” of PIP benefits and which is identical to the exclusion provided in our statute, K.S.A. 1979 Supp. 40-3108(a).
Appellant calls our attention to Wasche v. Milbank Mut. Ins. Co., 268 N.W.2d 913 (Minn. 1978), and Van Tassel v. Horace Marm Mutual Ins. Co., 296 Minn. 181, 207 N.W.2d 348 (1973). The Van Tassel case was relied on by our court in Clayton v. Alliance Mutual Casualty Co., 212 Kan. at 650, to justify “stacking” of uninsured motorist coverages based on what the court determined to be public policy reasons. However, the legislature has declared a different public policy for this State with reference to PIP coverage by enacting K.S.A. 1979 Supp. 40-3108. This statute permits an exclusion to prevent “stacking” of PIP benefits when the exclusion is written into a PIP endorsement.
In the Wasche case the Minnesota Supreme Court struck down a clause in an insurance policy which attempted to prevent the “stacking” of PIP benefits. The Minnesota court stated:
“Absent an express statutory prohibition of stacking in the no-fault context, insurers offer no compelling reason to deny stacking of compulsory basic economic loss coverages while stacking of uninsured-motorist coverages is recognized and permitted.
“Against the background of our holdings stacking uninsured-motorist coverages, we believe that, had the legislature intended that stacking could now be prohibited under the no-fault act in either the uninsured-motorist or the no-fault context, it would have so provided. This it did not do. . . . Should we have
misconceived the legislature’s intent, we invite a clear expression. As we fully recognize, the issue is one where the public interest can best be served by a legislative, rather than a judicial, resolution of the problem.’.’ 268 N.W.2d at 919-920.
It is clear that had the Minnesota legislature provided for a statutory exclusion similar to K.S.A. 1979 Supp. 40-3108 or the Florida section 627.736, the result in Minnesota would have been totally different.
The plaintiff-appellant, McNemee, has attempted to draw support from the fact Kansas permits stacking of uninsured motorist coverages, and therefore says the legislature must have intended to “stack” PIP benefits, as both coverages are creatures of the legislature and remedial in nature. In support, the plaintiff-ap pellant relies on numerous Kansas Supreme Court decisions striking out various exclusions in automobile policies which attempt to limit or dilute uninsured motorist coverage.
The fatal flaw in this and in the uninsured motorist analogy is clear. Uninsured motorist protection (K.S.A. 40-284) and PIP benefits are both mandated by the Kansas legislature, but nowhere in the uninsured motorist statute does the legislature grant any type of authorized exclusion prohibiting “stacking.” This distinction is fundamental, crucial, and paramount when examining uninsured motorist case law and in considering the stacking of PIP benefits.
This same uninsured motorist analogy was raised in Florida and disposed of in the State Farm v. Castaneda decision. That court in distinguishing the Minnesota cases reasons:
“This authority is not persuasive, since the Uninsured Motorist provision of the Florida Statutes does not contain any authorized exclusions, whereas certain express exclusions are contained within the sections pertaining to PIP benefits, as noted above. Moreover, the PIP benefits exclusion which was authorized by the Florida legislature and included in the State Farm policy is clear, unambiguous and specific. As such, it requires no construction or interpretation. Oren v. General Accident Fire and Life Assur. Corp., 175 So. 2d 581 (Fla. 3d DCA 1965). Thus, the exclusionary provisions in the State Farm policies relating to PIP benefits are valid and binding on the Plaintiff.” 339 So. 2d at 681.
Under the facts and circumstances of this case, when three automobile insurance policies were issued to a named insured covering three different vehicles and the insured was injured while driving one of the vehicles, he is not entitled to “stack” PIP benefits. If, as in the present case, the additional policies cover nonoccupied vehicles and the policies contain the exclusion authorized by K.S.A. 1979 Supp. 40-3108(o), the insured is limited to recovery of the amount of PIP benefits provided for in the policy which covers the vehicle occupied by him at the time of his injuries.
In view of the foregoing, the other questions need not be decided. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from judgments entered in an action to foreclose mortgages on Lot 4, North Olathe Industrial Park, a subdivision in the City of Olathe, Johnson County, Kansas. The plaintiff, Shawnee State Bank, was the'holder of a second mortgage. North Olathe Industrial Park, Inc. (Industrial Park) was the record title owner of Lot 4.
The defendant-third party plaintiff, Rosedale State Bank and Trust Company (Rosedale Bank), was the holder of a first mortgage covering Lot 4 and additional adjacent lots. North Olathe Warehouse Associates, a Missouri limited partnership (Warehouse Associates), was the record title owner of the adjacent lots. In purchasing the adjacent lots Warehouse Associates had assumed and agreed to pay the indebtedness against all the lots including Lot 4.
After a trial to the court the following judgments were entered: (1) Shawnee State Bank obtained a judgment against Industrial Park for $31,883.10 with interest and for foreclosure of the second mortgage on Lot 4; (2) Rosedale Bank obtained a judgment against Industrial Park and Warehouse Associates for $28,655.65 with interest and for foreclosure of the first mortgage on Lot 4; and (3) Industrial Park obtained a judgment against Warehouse Associates for $25,000.00, which indebtedness arose from the contract by which Warehouse Associates assumed and agreed to pay the amount of the first mortgage indebtedness on Lot 4.
The facts giving rise to these judgments are extremely complicated. The foregoing is merely an overview given for the purpose of enabling the reader to evaluate the facts which follow.
Lot 4 was one of thirteen lots subdivided and platted in North Olathe Industrial Park. This property was subdivided by a corporation referred to as CL&D. CL&D purchased the property and gave to the sellers a purchase money mortgage due within a year. CL&D failed to make the principal payment due and the sellers demanded payment. CL&D eased the pressure by selling two of the lots and applying the proceeds on the indebtedness. CL&D also had obtained financing to construct a building on some of its lots. Financing was by the Shawnee State Bank which held a note for a substantial sum secured by a mortgage.
CL&D finally transferred the remaining eleven lots to Industrial Park subject to the mortgages held by the former owners and by the Shawnee State Bank. Industrial Park then borrowed $160,000.00 from Rosedale Bank on a short-term loan and first mortgage covering the lots. A portion of the proceeds of this loan was used to pay the original owners and the balance was paid to the Shawnee State Bank. Industrial Park in its attempt to obtain financing got in touch with David L. Curry. He was a mortgage broker. The period of the short-term financing had to be extended. Curry was unable to obtain permanent financing on these lots for Industrial Park. Warehouse Associates, together with Mortgage Services, Inc. which was a general partner of Warehouse Associates, became interested in purchasing the lots from Industrial Park. A purchase agreement was entered into on October 15, 1975. Warehouse Associates agreed to purchase all of the lots, except Lot 4, for $210,000.00. Industrial Park, in an effort to salvage something, retained title to Lot 4. The entire agreement was contingent on Warehouse Associates being able to assume the Rosedale Bank loan and obtain an extension on the term of the loan for an additional twelve months.
During the extension period Warehouse Associates received a permanent loan commitment from Plaza Savings & Loan for $185,000.00. A $25,000.00 “hold back” was later required because of potential building and construction liens. In order to close the sale in a manner satisfactory to Plaza Savings, Industrial Park executed two deeds. One deed was executed to Lot 4 and delivered to Security Title Company, Inc., and the second deed covering the balance of the adjacent lots was executed to Warehouse Associates. Both deeds were held by Security Title as escrow agent. When the loan from Plaza Savings came through and the money was made available approximately $135,000.00 was paid to Rosedale Bank for release of its mortgage on all lots, except Lot 4. This left a balance of $25,000.00 due Rosedale Bank on Lot 4. The balance of the loan proceeds was used to clear construction liens existing against the lots, to pay $13,000.00 to Shawnee State Bank and to pay other sums due Mortgage Services, Inc. Warehouse Associates was able to obtain the extension agreement on the indebtedness from Rosedale Bank by assuming and agreeing to pay the $25,000.00. Thereafter Security Title executed a deed conveying title to Lot 4 to Industrial Park. The deed was subject to the mortgage of the Rosedale Bank, and Industrial Park assumed and agreed to pay the same.
Thereafter Industrial Park, which previously had become indebted to the Shawnee State Bank, refinanced its indebtedness with said bank and executed a second mortgage on Lot 4 to secure the indebtedness. As time passed Industrial Park failed to pay the interest due on this loan, and Shawnee State Bank initiated this lawsuit which resulted in entry of the judgments previously outlined, together with an order directing the sale of Lot 4 to satisfy the two mortgage liens.
Although Industrial Park did obtain a joint judgment in this action for $25,000.00 against North Olathe Warehouse Associates, a Missouri limited partnership, and Mortgage Services, Inc., a general partner of North Olathe Warehouse Associates, it appeals from all judgments, claiming various errors on the part of the trial court. We will consider the points raised.
Appellant argues it was relieved from the primary liability on the mortgage to Rosedale Bank when Warehouse Associates assumed and agreed to pay the amount due on the mortgage on Lot 4. It contends the primary obligation which it previously had assumed became one of surety. See Federal Land Bank v. Butz, 156 Kan. 662, Syl. ¶ 2, 135 P.2d 883 (1943). It further argues when the due date of its surety obligation was extended by Rosedale Bank without its knowledge or consent it was thereby relieved of further obligation on the loan.
The difficulty with this argument is that it is based on a faulty premise for Industrial Park did have knowledge of and did consent to the extension. We note that the agreement for the sale of the lots adjacent to Lot 4, which agreement was between Industrial Park and Warehouse Associates, was contingent on Warehouse Associates being able to assume the Rosedale Bank loan and to extend the term of the loan for an additional twelve months. Industrial Park not only had knowledge that an extension was to be sought by Warehouse Associates, but it agreed to an extension when it signed the agreement to sell the property.
An additional reason appears why Industrial Park cannot support such a claim. The sale agreement with Warehouse Associates was entered into on October 15, 1975. Next the Rosedale Bank and Warehouse Associates executed the extension agreement on the indebtedness. Thereafter Security Title executed a deed conveying title to Lot 4 to Industrial Park subject to the Rosedale Bank mortgage, which Industrial Park as grantee assumed and agreed to pay. It is apparent that this agreement to assume the indebtedness postdated the extension agreement. So, when Industrial Park accepted the deed as grantee it not only had knowledge of the remaining indebtedness but it also accepted the primary obligation to pay the same. The trial court was correct in refusing to accept these arguments of appellant.
In closing the sale of the adjacent lots under the agreement between Industrial Park and Warehouse Associates, certain distributions of funds were made by the escrow agent, Security Title Company. Appellant, Industrial Park, sued to recover some of the payments distributed, as being made by Security Title without authority. We will consider the propriety of these distributions next.
The first item was for $5,000.00. Industrial Park argues this amount was paid to David Curry for selling the property and was illegally paid because he was not a licensed real estate salesman or broker. The real estate contract provided:
“8. Seller agrees to pay to Mortgage Services, Inc., the sum of Five Thousand Dollars ($5,000.00) at the time of closing.”
David Curry was president and managing officer of Mortgage Services, Inc. There is nothing in the record to establish that the amount was not properly paid to Mortgage Services, Inc., as provided in the contract. The statute relied on by appellant is K.S.A. 58-3019 which requires a person engaged in the business of a real estate broker or salesman to have a Kansas license before that person may maintain an action in the courts of Kansas to collect a fee or compensation for the sale of real estate. In the present case, the $5,000.00 was paid and no action to recover the amount had to be filed. Therefore, the statute never came into play. In addition, the payment was made in accordance with a provision in the written agreement of these parties and the trial court approved the payment without determining the exact purpose for which it was paid. Mortgage Services, Inc. had rendered services in finding a source of mortgage funds to enable the parties to complete the sale. The allowance does not appear to be illegal or improper.
Industrial Park quarrels with the allowance of two additional items paid out by the escrow agent when the loan was closed. The first appears to have been a $3,000.00 item paid for engineering fees incurred by Industrial Park and the second was an additional $3,400.00 paid to Mortgage Services, Inc. on the authorization of David Curry. The trial court determined that these items were properly paid from the loan proceeds. No more specific findings appear. Appellant denies that David Curry had authority to authorize these payments. Agency is denied by Industrial Park.
In reviewing the record it appears that Industrial Park did get in touch with David Curry at the outset to assist it to obtain financing for the purchase of the lots. Curry obtained short-term financing from Rosedale Bank. When permanent financing was not forthcoming, Curry then suggested a sale by Industrial Park to Warehouse Associates. Curry arranged the sale in such a way that Industrial Park could retain title to Lot 4. Curry was in the mortgage and commercial loan business. Berle Lee, an officer of Industrial Park, testified that Curry “represented us in, you know, in acquiring the loan and that type of thing.” Curry and Berle Lee met with an officer of Security Title, the escrow agent, several times before the sale was closed. Curry and Lee discussed the closing of the transaction with an officer of Security Title. Curry testified at trial that Orval Landis, the president of Industrial Park, and the corporation’s accountant met with a Mr. Shanahan of Security Title to prepare a list of debts that had to be paid prior to closing. A list of those debts was gathered by Shanahan. They had been incurred by Industrial Park and were to be paid from the $25,000.00 “hold back” fund. Curry testified that Lee knew these potential liens existed and if they were not paid Industrial Park would not be able to convey clear title. When questioned about the authorization given to Curry or Security Title to pay these bills, Lee testified that he did not know if the president or secretary of Industrial Park gave such authority or not. The contract of sale provided that the property was to be free of liens. Curry was present at the closing and did authorize payment of the various items.
The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent. The authority of an actual agent may be either express or implied. Theis v. DuPont, Glore Forgan, Inc., 212 Kan. 301, 306, 510 P.2d 1212 (1973).
It is an express agency if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal. An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent. Gardner v. Rensmeyer, 221 Kan. 23, Syl. ¶ 1, 557 P.2d 1258 (1976); Greep v. Bruns, 160 Kan. 48, Syl. ¶ 4, 159 P.2d 803 (1945). Under the facts and circumstances we believe Industrial Park by the actions of its officers induced others to rely on the ostensible or apparent authority of Curry and that it became bound thereby. The appellant accordingly was bound by Curry’s authorizations to Security Title at the closing of the sale agreement. The trial court properly denied appellant’s claim of unauthorized distribution of sale proceeds.
The final issue raised in this appeal concerns a claim by appellant that Warehouse Associates, a Missouri limited partnership, failed to comply with the requirements of K.S.A. 56-123b before doing business in Kansas. The appellant argues that because of such failure the partners became liable as general partners on the $25,000.00 judgment entered by the trial court against the limited partnership. In support of its position appellant cites both a California and a Texas case for the proposition that a limited partner becomes liable as a general partner when a foreign limited partnership does business within a state without complying with filing statutes. It is not necessary for us to examine that question in this case.
K.S.A. 56-123b, then in effect, provided in pertinent part:
“(a) No limited partnership organized under the laws of any jurisdiction other than this state shall do any business in this state until it shall have filed with the secretary of state an application for authority to do business in this state as a foreign limited partnership.”
Appellant contends in its brief that Warehouse Associates was not a properly registered foreign limited partnership until February 3, 1976, when the articles of limited partnership were recorded in the office of the Register of Deeds of Johnson County. However, appellant is in error as to when a foreign limited partnership may do business. Under K.S.A. 56-123b a foreign limited partnership is authorized to do business in this state on the date the application is filed with the Secretary of State, not when it is filed with the register of deeds of a county. The filing with the Secretary of State in the present case occurred on January 30, 1976. It does not appear the partnership was doing business in Kansas before January 30,1976. That was the date the parties completed the sale to Warehouse Associates and disbursed the sale proceeds.
However, another reason appears why appellant cannot prevail. Appellant failed to join the individual partners in this action. No attempt was made to name them or to obtain service of process upon them before the case was tried. It cannot now shift the liability for the judgment from the limited partnership to the individual partners.
Various other contentions are made by the parties against whom judgments were entered. We have examined only those contentions raised by North Olathe Industrial Park, Inc.; it alone appealed from these judgments. We find that upon the whole record substantial justice has been done and the judgments of the trial court are affirmed. | [
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The opinion of the court was delivered by
Six, J.:
The two primary issues for review concern a defendant’s right to confront a witness who appears at trial by deposition and the appropriate hard 40 sentencing instruction under K.S.A. 1992 Supp. 21-4625(6). We also comment on the admission of photos of the victim, the absence of an instruction on involuntary manslaughter, and the interplay of instructing on mitigating and aggravating factors during a hard 40 sentencing hearing.
Edwin Willis, Jr., was convicted of the premeditated first-degree murder of his wife. K.S.A. 1992 Supp. 21-3401. The trial court, in a separate sentencing proceeding, followed the jury’s recommendation and imposed a mandatory 40-year term of imprisonment. Our jurisdiction is under K.S.A. 1992 Supp. 21-4627 (automatic review of a mandatory hard 40 sentence).
Willis made no objection .to the deposition at trial. The standard of review on the deposition issue is. influenced by Willis’ constitutional right of confrontation. We are required to determine beyond a reasonable doubt whether the admission of the deposition had little if any likelihood of changing the trial result. State v. Knapp, 234 Kan. 170, Syl. ¶ 7, 671 P.2d 520 (1983). We are unable to make such a determination.
We reverse on the witness confrontation issue and remand for a new trial. We also provide new instruction language for a hard 40 sentencing proceeding under K.S.A. 1992 Supp. 21-4625(6).
Facts
Willis, his wife Debra,’and their four children lived in a trailer park in rural Reno County. Willis was repairing his truck on September 14, 1991, the date of the homicide. He began drinking beer around 11:00 a.m. and continued through the day. Willis testified that Debra, twice that evening, accused him of drinking. She smelled a can of pop he was drinking and grabbed him by the shirt. He put up his hand to freé himself and Debra fell backwards to the ground. According to Willis, Debra was not hurt and walked off. He did not see her again. Willis reported to a sheriff’s deputy that his wife was missing.
Debra’s decomposed body was found 12 days later under a bridge four and one-half miles from her home. The area under the bridge had not been flooded between her death and the discovery of the body. The body was identified through the use of dental records. An autopsy was conducted by Dr. W. Wike Scamman. Extensive postmortem deterioration and maggot infestation were consistent with his conclusion that the victim had been dead in a warm environment for 13 days. The autopsy report states that there was “[n]o evidence of traumatic death, although strangulation, smothering or poisoning cannot be excluded and are a likely cause of death.”
Willis became a suspect in the murder investigation. One of the detectives investigating the case testified that Willis was asked toward the end of an interview how Debra had died and whether she had suffocated. Willis replied that “it could have possibly been from when he went to the body, knelt down next to the body and had his face next to her face and kicked some piling of sand in her breathing areas of her mouth and nose.” Willis denied that he either intentionally pushed sand in her face or choked or strangled her. Detective Hagen testified that Willis said that he had attempted resuscitation by opening her mouth, cleaning the sand out, blowing into her mouth four or five times, and making some chest compressions. At trial (held on May 11-13, 1992), Willis denied playing a role in his wife’s death. He indicated that the detectives’ testimony concerning his statements were not true.
A deposition of Dr. Scamman taken three days before trial was read to the jury. Willis did not object. Willis was represented by counsel during the taking of Dr. Scamman’s deposition. However, Willis was not present, nor had he waived his right to be present.
Dr. Scamman indicated that due to the extensive deterioration of the body he was unable to determine the cause of death. Dr. Scamman was told by the prosecutor that the Kansas Bureau of Investigation located sand in Debra’s larynx, hyoid, and the left bronchus. The prosecutor during the deposition, asked Dr. Scam-man whether such a finding would be consistent with a smothering that would occur by placing a person’s head down in loose sand, and Scamman replied, “Yes, it could be.” The following interchange occurred:
“Q. [Prosecutor] Would you expect to find sand within a person’s lungs, in a normal autopsy situation?
“A. [Dr. Scamman] No. It would kind of depend on the amount, if she was thrown — thrown off of a bridge, it could be — and her face stuck in the sand, it could be some sand would have gone into the nasal pharynx, and possibly into the trachea. The other thing is, there were a lot of maggots down in the lungs, as well; they could have carried some sand down. If they went across the sand crawling down into the lungs, they could have, I suppose, taken some sand down into the bronchi. But I wouldn’t expect very much sand could be carried down in that manner.”
After finding Willis guilty, the jury heard testimony in a separate hard 40 sentencing proceeding. The jury found that Willis, under K.S.A. 1992 Supp. 21-4625(6), had committed the crime in an especially heinous, atrocious, or cruel manner and the existence of the 21-4625(b) aggravating circumstance was not outweighed by any mitigating circumstances.
Willis’ Confrontation Rights
Willis asserts that his absence during the deposition of Dr. Scamman deprived him of his right under the Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights to confront all witnesses against him. He further contends that his failure to waive his right violated K.S.A. 22-3211(7) (“[w]henever the court authorizes the taking of a deposition, other than a deposition upon written interrogatories, the court shall make a concurrent order requiring that the defendant be present when, the deposition is taken”) and K.S.A. 22-3405 (“[t]he 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 agree.
No hearing was held on the need for Dr. Scamman’s deposition. The only comment at trial as to the reason for admitting the deposition testimony was a statement by the trial judge that Dr. Scamman “is unable to be here.” (See K.S.A. 22-3211(8) for a list of circumstances permitting the use of deposition testimony.) We indicated in State v. Busse, 231 Kan. 108, Syl. ¶ 2, 642 P.2d 972 (1982), that a defendant can waive the right to be present at a deposition as long as the waiver is made freely and voluntarily, with full knowledge of the possible consequences and with advice of counsel. There was no showing in the case at bar that Willis was informed of his right to be present at Dr. Scamman’s deposition or that he waived this right. The absence of an objection by trial counsel is not binding upon Willis under these facts. See Crease v. State, 252 Kan. 326, Syl. ¶ 4, 845 P.2d 27 (1993).
K.S.A. 22-3211(3) provides that the prosecuting attorney may apply to the court for an order authorizing the taking of the deposition of an unavailable witness. The court, on such application, “shall set the matter for hearing and shall order the defendant to he present at such hearing.” (Emphasis added.) K.S.A. 22-3211(7) mandates that the court order defendant to be present at the deposition. Willis contends that the prosecutor’s failure to apply to the court for authorization to take the deposition means that a court order authorizing the taking of the deposition does not exist and a concurrent order requiring Willis’ presence at the deposition was never made. Consequently, he asserts that the testimony was inadmissible hearsay under K.S.A. 1992 Supp. 60-460(c)(1) because the deposition was not taken in compliance with law. A bench inquiry during appellate argument probing whether the State or Willis initiated the deposition was unsuccessful. The prosecutor responded that Willis wanted it, the State arranged it, and both counsel drove to Topeka to depose Dr. Scamman.
Because Willis’ confrontation rights were denied, we must find beyond a reasonable doubt, if we affirm the trial court, that his absence and the admission of the deposition had little if any likelihood of changing the result of the trial. Crease, 252 Kan. 326, Syl. ¶ 5. We are unable to do so. The Sixth Amendment to the Constitution of the United States provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965), the Supreme Court held that this is a fundamental right and is made obligatory on the states by the Fourteenth Amendment. Similarly, § 10 of the Bill of Rights of the Kansas Constitution secures to the accused in all criminal prosecutions the right “to meet the witness face to face.”
Dr. Scamman’s testimony was crucial to the State’s theory that Willis intentionally murdered his wife by holding her head down in the sand. During his deposition, Dr. Scamman was examined by the State concerning his autopsy report.
“Q. Doctor, I am handing you what we have marked as State’s Exhibit 1, and ask if that is a copy of your report.
A. Yes, it is.
Q. Your final diagnosis states that: . . Strangulation, smothering or poisoning cannot be excluded, and are a likely cause of death.’ Since you prepared this report, have you changed that opinion in any way?
A. No.”
The prosecutor sought to bolster the sand theory with Scamman’s testimony that the presence of sand in the larynx, hyoid, and bronchus would be consistent with smothering. The sand theory was advanced during the prosecutor’s closing argument: “How did Debra Willis die? ... I think the evidence does indicate how she was killed. That she was smothered by her head being placed down in the sand. That is why the sand is in the larynx, in the hyoid and in the right bronchus.”
Willis had a right to be confronted by Dr. Scamman. The essence of assisting in one’s defense depends upon being confronted with the evidence and witnesses. See Coy v. Iowa, 487 U.S. 1012, 1017, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988) (face to face meeting essential to fairness). Willis’ right to be present during Dr. Scamman’s deposition was fundamental to a fair trial. The pathologist’s conclusions concerning possible causes of death were an integral part of the State’s case.
We considered an accused’s constitutional right to confront witnesses in State v. Hooks, 202 Kan. 68, 446 P.2d 770 (1968). Hooks was charged with grand larceny for stealing money from a cash register. As part of the State’s case, the deposition of Eula Gregory (a resident of Oklahoma) was read into evidence over Hooks’ objection. The deposition related the details of a similar “till-tapping” incident in a store where Eula worked as a clerk. Hooks was not present at the taking of the deposition. Retained counsel was present and cross-examined the witness extensively. Hooks’ confrontation rights under the United States and Kansas constitutions were violated. We ordered a new trial. 202 Kan. at 69-71.
We identify an additional problem with the use of Dr. Scam-man’s deposition. The procedures for taking depositions outlined in K.S.A. 1992 Supp. 60-230(e) (required to be used in criminal actions under K.S.A. 22-3211[6]) were not followed. Dr. Scamman did not sign his deposition. The record does not indicate either that it was submitted to him to read or- that he waived review.
We approved in State v. Staab, 230 Kan. 329, 337, 635 P.2d 257 (1981), Judge Spencer Gard’s commentary that although signing a deposition is not extremely important, reading the deposition is crucial. The witness is the only one who can waive the reading requirement. The court reporter in Staab had made an appointment with the witness to read the transcript. The witness failed to keep the appointment. We determined that these circumstances constituted a waiver of the reading requirement. No such waiver is present in the case at bar.
The State responds that defense counsel failed to object to either the introduction of Scamman s deposition or to the manner in which the deposition was taken. According to the State, the trial court indicated that the pathologist was unavailable and Willis concurred with that finding and ratified the procedure through his failure to object.
The State observes that we “will not for the first time consider issues on appeal which have not been presented or determined in the district court,” quoting State v. Kelly, 204 Kan. 717, Syl. ¶ 1, 466 P.2d 351 (1970). The State stresses that even if we consider the deposition issue, any admission error was harmless. The State asserts that Willis has failed to affirmatively show either that he was prejudiced or that the outcome of the trial would have been different if the deposition had not been admitted.
The failure of Willis’ trial counsel to object to the admission of the deposition testimony does not necessarily preclude our review. Although ordinarily we will not consider an issue which has not been raised in the trial court, we have the power to do so in exceptional circumstances. In Willis’ case, consideration of the new issue is necessary to serve the interests of justice and to prevent a denial of fundamental rights. State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992):
The State suggests that the autopsy report was admissible under K.S.A. 22a-235 and that the deposition merely restates the findings of the report; consequently, the admission of the deposition could not have had an impact on the trial’s outcome. According to the State, the autopsy report indicated that smothering was a likely cause of death; consequently, the deposition only adds the fact that the discovered sand was consistent with the smothering conclusion. Furthermore, the State emphasizes that the only new information within the deposition concerned the alternate ways in which the sand could have entered Debra’s body. The State asserts that the sand entry information was beneficial to Willis, so he cannot claim prejudice.
We have observed repeatedly that under the Kansas and United States Constitutions the right of the accused to a face-to-face confrontation while the accuser is testifying is fundamental. State v. Chisholm, 245 Kan. 145, 149-50, 777 P.2d 753 (1989). A primary interest secured by the Sixth Amendment confrontation clause is the right of cross-examination. State v. Hamons, 248 Kan. 51, 62, 805 P.2d 6 (1991). See Ohio v. Roberts, 448 U.S. 56, 63, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980).
The Roberts discussion of unavailability and reliability serves as a useful guide for the constitutional confrontation clause analysis in the case at bar. 448 U.S. at 65. First, as Willis notes, the unavailability of Dr. Scamman was not explicitly demonstrated except for the statement of unavailability by the trial judge. The basis for the trial court’s declaration of unavailability is absent from the record. We are unable to either consider the propriety of the trial court’s conclusion in a manner similar to the analysis in Staab, 230 Kan. at 337, or to follow the unavailability test set out in Roberts, 448 U.S. at 65. Second, the reliability and trustworthiness of the deposition is in doubt. Dr. Scamman did not sign the deposition. The record is silent on whether he reviewed tire deposition and waived the signature requirement. K.S.A. 1992 Supp. 60-460(c) relating to depositions and prior testimony does not apply in criminal actions when the accused is denied the right to meet the witness face to face.
Resolution of tire confrontation issue turns on the question of whether Willis was prejudiced by the constitutional and statutory violations. We acknowledge the presence of other evidence linking Willis to the killing; however, a constitutional right is involved. The autopsy report’s final diagnosis was inquired into by the State during the deposition. We are unable to determine beyond a reasonable doubt that the admission of the deposition testimony had little, if any, likelihood of changing the result at trial. Crease, 252 Kan. 326, Syl. ¶ 5. We reverse and remand for a new trial.
The Hard 40 Sentence
At the time of Willis’ trial, neither our opinion in State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992), nor PIK Crim. 2d 56.01-B (1992 Supp.) were available for review by the trial court and counsel. The trial court’s instruction did not contain the Bailey definitions of “heinous,” “atrocious,” or “cruel.”
The trial court instructed the jury on the one applicable statutory aggravating circumstance (K.S.A. 1992 Supp. 21-4625[6]):
“Yoxi are instructed in arriving at your determination of punishment of Edwin Willis, you must first determine whether at the time this case was committed the following aggx-avated circumstance existed as to Edwin Willis beyond a reasonable doubt. The aggravated circumstance you may consider shall be limited to the following:
“1. The defendant committed the crime in an especially heinous, atrocious or cruel manner.”
The trial court followed the jury’s recommendation and imposed the hard 40 sentence.
Vagueness
Willis contends that the aggravating circumstance which formed the basis for his hard 40 sentence has been found to be unconstitutionally vague by the United States Supreme Court. Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988). Willis observes that Maynard viewed the terms heinous, atrocious, and cruel as not adequately channeling or limiting a juiy’s discretion, thereby failing to protect a defendant from an arbitrary and capricious decision. Maynard is a death penalty case.
Willis recognizes that in Bailey, we rejected a claim that the K.S.A. 1992 Supp. 21-4625(6) aggravating factor is unconstitutionally vague in the context of the hard 40 proceeding. He observes that our reasoning relied, in part, on the fact that the terms had been defined in a manner which had been approved in Foster v. State, 779 P.2d 591 (Okla. Crim. 1989), cert. denied 497 U.S. 1032 (1990). He emphasizes that in Shell v. Mississippi, 498 U.S. 1, 112 L. Ed. 2d 1, 111 S. Ct. 313 (1990), a death penalty case, the Court rejected the claim that definitions similar to those approved in Bailey satisfied vagueness problems.
Willis indicates that in the case- at bar, the trial court failed to define the terms heinous, atrocious, or cruel. Consequently, he contends that “a jury recommendation which is based upon such unclear, ambiguous, and subjective terminology” failed to comport with due process or with the Eighth Amendment protection against cruel and unusual punishment. Willis reasons that the analysis in death penalty cases is instructive even though we have not recognized such precedents as controlling.
We reasoned in Bailey that “[m]ost of the cases involving the constitutionality of such post-trial [sentencing] proceedings arise in the context of the death penalty legislation and are, accordingly, of limited precedential value.” 251 Kan. at 171. In Lockett v. Ohio, 438 U.S. 586, 605, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Court recognized the following:
“Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques — probation, parole, work furloughs, to name a few — and various postconviction remedies, may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.”
Our rationale in Bailey regarding the precedential value of death penalty cases in the hard 40 context is consistent with Lockett. However, Lockett also may be read as supporting the contention that tire relevant analysis from death penalty cases should be used when considering hard 40 issues because the “flexible techniques” and “postconviction remedies” also are absent in the hai'd 40 sentence.
We found in Bailey:
“[T]he contention that this aggravating factor [21-4625(6)] is unconstitutionally vague in the context of the hard 40 legislation to be without merit and especially so in light of the definitions included in the instructions herein. It would be impossible to devise a laundry list of particular forms of killing that would encompass the intended subject. Thus, the statute has to rely on adjectives.” 251 Kan. at 174.
We have followed Bailey in analyzing K.S.A. 1992 Supp. 21-4625(6). See State v. Cromwell, 253 Kan. 495, 514, 856 P.2d 1299 (1993); State v. Phillips, 252 Kan. 937, 946-47, 850 P.2d 877 (1993); State v. Kingsley, 252 Kan. 761, 791, 851 P.2d 370 (1993); and State v. Walker, 252 Kan. 279, 300-01, 845 P.2d 1 (1993). Cromwell, Walker, Kingsley, and Phillips defined the terms heinous, atrocious, and cruel in a manner similar to that endorsed in Bailey.
The hard 40 sentence should be reserved for special cases (it is for the jury and the trial court to determine if Willis’ case may be one of them). Otherwise, the legislature would have mandated the hard 40 sentence in all first-degree murder cases.
We revisit the Bailey analysis of Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988) and Foster v. State, 779 P.2d 591. The Bailey reasoning appears in the comments to PIK Crim. 2d 56.01-B-Murder in the First Degree— Mandatory Minimum 40 Year Sentence — Aggravating Circumstances. We alluded to difficulties with the Bailey/Foster analysis in Phillips, 252 Kan. at 946. We did not include the complete instruction from Foster in our discussion in Bailey. Phillips did not consider the difficulties alluded to because we found the issue was not before us. Counsel and the defendant in Phillips had affirmatively approved the instruction as given. 252 Kan. at 946. Willis’ counsel did not object to the 21-4625(6) instruction.
The jury in Foster received the definitional instruction discussed in Bailey plus the following: “The phrase ‘especially heinous, atrocious, or cruel’ is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.” 779 P.2d at 592-93. The torture/physical abuse aspect of the revised Oklahoma instruction appears to have been crucial to the Foster court’s conclusion that the instruction did not violate the constitution. The torture/physical abuse instruction is absent from the instructions that we have approved in Bailey and its progeny. The case at bar may be the “borderline case” mentioned in Bailey, 251 Kan. at 175, in that the manner of death was different than the stomping in Bailey, 251 Kan. at 159, and Walker, 252 Kan. 279 (Bailey’s companion case), the kicking and stomping in Phillips, 252 Kan. at 938, or,the knocking the victim unconscious, multiple stabbing in the chest, and throat slitting in Kingsley, 252 Kan. at 762.
We have reversed the case at bar on witness confrontation grounds. The case is remanded for retrial. We select this opinion to supplement the Bailey!K.S.A. 1992 Supp. 21-4625(6) instruction. We adopt the instruction to be used in: (1) Willis’ retrial, (2) hard 40 sentencing cases after the date of this opinion, and (3) all cases on appeal as of the date of this opinion in which vagueness of a 21-4625(6) sentencing instruction has been asserted as an issue on appeal.
Sentencing Under the Hard 40 Statute
Apparently Kansas is the only, state with the hard 40 sentence of mandatory imprisonment. We suggest that the hard 40 sentence exists as a legislative compromise between the proponents and opponents of the death penalty. We have reviewed several cases since enactment of the hard 40 sentence in 1990. The legislature intended the hard 40 mandatory term of imprisonment to apply to a defendant responsible for a particular type of premeditated murder. The prosecutor initiates the possibility of the hard 40 sentence by filing a written notice and serving it at the time of arraignment. K.S.A. 1992 Supp. 21-4624. The experience gained from exercising appellate review of Bailey and its progeny dictates that we supplement the previously approved K.S.A. 1992 Supp. 21-4625(6) instruction now found at PIK Crim. 3d 56.01-B.
We adopt as constitutionally acceptable the following hard 40 sentencing instruction to use under K.S.A. 1992 Supp. 21-4625(6):
The State of Kansas contends that the following aggravating circumstances are shown from the evidence:
The defendant committed the crime in an especially heinous, atrocious, or cruel manner. The term “heinous” means extremely wicked or shockingly evil; “atrocious” means outrageously wicked and vile; “cruel” means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.
A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim's uncertainty as to [his] or [her] idtimate fate. (Emphasis indicates die new language.)
The new language is adopted from Walton v. Arizona, 497 U.S. 639, 654, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). We have added “serious” as a modifier to “mental anguish” and to “physical abuse.” In Walton, the Supreme Court observed that it had expressed approval of a definition that would limit Oklahoma’s “especially heinous, atrocious, or cruel” aggravating circumstance to murders involving “some kind of torture or physical abuse.” 497 U.S. at 654-55. The Supreme Court in Walton points out that when it endorsed the “some kind of torture or physical abuse” language in Maynard, 486 U.S. at 364-65, it also stated that such a construction was not the only one “that would be constitutionally acceptable.” 497 U.S. at 655. The Walton opinion instructs that “[t]he construction given by the Arizona Supreme Court to the cruelty aspect of the Arizona aggravating circumstance is virtually identical to the construction we approved in Maynard.” 497 U.S. at 655. Wé have reviewed the Foster language (“some land of torture or physical abuse”) approved in Maynard and elect, with slight modification, the Arizona version approved in Walton. We have added the word “serious” as a modifier to “mental anguish” and to “physical abuse” to convey our blending of the Foster[Walton analysis.
We note that the PIK Crim. 3d 56.01-B instruction as well as the comment will require revision to conform with the new language adopted herein.
Instructions, Burden of Proof, and Mitigating Circumstances
Willis contends that two instructions, Nos. 3 and 5, incorrectly required the jury to find the existence of mitigating factors by unanimous vote. He argues also that the verdict form contained a similar unanimity requirement.
Willis discusses Lockett v. Ohio, 438 U.S. 586, and highlights the fact that the Court determined that “[a]ny statute that prevents the sentencer from giving independent mitigating weight to such considerations is ‘unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.’ 438 U.S. at 605.” Willis believes that the jury was effectively precluded from considering mitigating factors by the use of the beyond a reasonable doubt standard.
We rejected a similar contention in State v. Walker, 252 Kan. at 307, and do so here.
Involuntary Manslaughter
Defense counsel requested that the jury be instructed on involuntary manslaughter, asserting that the killing was unintentional. The State did not comment on the request. The trial court denied the request, explaining:
“The court . . . will instruct on murder in tire first degree, murder in the second degree, and voluntary manslaughter. And the record speaks for itself as far as the court is concerned. There is no evidence under which I felt that this could go to the juiy on involuntary manslaughter and I will not instruct on that.”
We need not comment further because upon retrial the propriety of giving lesser included offense instructions will depend on the evidence introduced.
Photographs of the Victim’s Body
Defense counsel objected to the admission of photographs of Debra’s body taken at the crime scene. Willis does not take issue with four of the photographs (State’s Exhibits 12, 13, 14, and 15) which show the body’s location. However, he believes that State’s Exhibits 11 and 16, which are close-ups of the body, are revolting and serve no valid or legitimate purpose. Willis recognizes that we rarely find admission of gruesome photos to be an abuse of discretion. Willis asserts that Exhibit 11 neither illustrates the nature and extent of the injuries inflicted by the killer nor corroborates the testimony of any witness regarding the cause of death.
We question the relevancy of Exhibit 11 based on the current record. Exhibit 11 is a photograph of the body after it had been moved. It shows a decomposed and decaying corpse displayed on a white sheet. Exhibit 11 does not depict the body as it was found. The ravages of time and the elements have reduced the body to its exhibited state. Upon retrial, relevancy as well as any other appropriate admissibility questions will be ruled on by the trial court as it exercises its discretion in determining admissibility. See State v. Minski, 252 Kan. 806, 817, 805 P.2d 809 (1993).
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an appeal by Debra G. Herman from the order of the district court granting summary judgment in favor of the defendants, Columbia Savings Association, F.A., (Columbia Savings) and various individuals, on her cause of action for hostile work environment, sexual harassment in violation of 42 U.S.C. § 2000e-2(a)(l) (1988), and retaliatory discharge. This case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Debra Herman was employed by Columbia Savings and its predecessor from April 1986 until she was fired on April 5, 1990. She was the regional mortgage loan operations manager, and her supervisor was the regional mortgage loan vice-president, Dan Welch.
Welch started working at Columbia Savings in the fall of 1987. Herman described Welch as “a real social person.” She testified that during the first six months to one year of his employment there, Welch “was constantly touching, rubbing my neck, very intimate as far as physical contact, in the office, in front of other people,” which made her feel uncomfortable and embarrassed. She denied that Welch ever touched any part of her body other than her neck, back, and shoulders. She testified that he conducted himself in the same way toward “several others also.”
She also testified that “[t]he dirty jokes, the innuendos spoken, were daily.” She explained what she meant by “innuendos” in the following way: “Rude gestures, different phrases that he would say that would — calling one of the employees, well, she’s really stacked, the rude comments, the jokes.”
On one occasion when Columbia Savings employees had gone out socially, Herman and Welch went to their cars, which were parked side-by-side. According to Herman, Welch “started to lean me back up against my car. He started to kiss me. I laughed at him at the time, because he was very drunk.” She testified that she also had been drinking and that she “[djidn’t think a whole lot of it at the time.”
It appears that this incident occurred in June 1988. Herman testified that Welch never again touched her neck or back or put his arm around her or tried to kiss her. Nor did he make “sexual' comments” to her, although he continued to tell jokes and use sexual innuendos when in a group.
Herman testified that as a result of the attempted kiss, she stopped going out socially with the other Columbia Savings employees. Welch commented to her that she had become antisocial. Herman testified:
“After that point when things started becoming uncomfortable — I prior to that spent a lot of time with Dan. We worked very closely together on problems in business, day-to-day activities. Again, I tried to avoid any situation where I might be alone with him, including in his office.”
Herman testified that from the time Welch started at Columbia Savings, he drank “quite heavily,” but at first it did not affect his work. By March or April. 1988, however, he was coming into the office inebriated and missing appointments. Herman testified that the employees in the loan department “were covering for him.” She stated:
“Communication virtually stopped with everyone. We just were kind of in limbo. We didn’t know — he was responsible for the department and making certain decisions, but we couldn’t get decisions made or get them — get him to answer or get him to tell us.”
Herman testified that the morale of the employees in the loan department was affected and that she “was very frustrated.”
Herman also complained about Welch’s conducting a sexual relationship with Sheryl Heitman, another Columbia Savings employee. The affair began sometime in 1988, probably after June 1988. Welch was married. Herman viewed his involvement with Heitman, along with his drinking, as accounting for his absence from the office during working hours. Herman testified that she sometimes saw Welch’s car in the parking lot at Heitman’s apartment. When she returned to the office one evening in the fall of 1988, Herman heard giggling, laughing, “moans and groans” from Welch’s office and a woman saying, “Oh, Dan.” Herman identified the woman’s voice as Heitman’s.
Herman testified that after June 1988, Welch “was leaving me alone.” It was at that time, however, when the hostile work environment of which Herman complains developed. Herman testified ■ that the relationship between Welch and Heitman “caused a very, very hostile work environment for not just myself but for many people.” Herman testified:-
“It was very, very uncomfortable to work'aroufid — and very embarrassing, to work around the atmosphere when Sheryl is sitting on Dan’s desk with her legs crossed, with her skirt clear up, and there’s — and this is in the lobby and there’s customers everywhere, when realtors and builders know this and ask employees, you know, who’s the blond and what’s going on, makes it very uncomfortable for everyone.”
Herman also testified that
“[Welch and Heitman are] gone out of the office. He’s not there to make decisions or to help. He’s not there when he’s supposed to be. He tells people — he sets up appointments and the closing. They have to cancel it. And which creates a lot of work for a lot of .people to redo.”
In summary, Herman believed that Welch’s absence from the office, his drinking, and his relationship with Heitman affected Herman directly by increasing the amount of work she had to do in supervising the employees in the loan department. She believed that Welch’s failures were “a reflection on” her because realtors and customers did not understand why “things weren’t done as promised by Dan Welch.”
Charles D. Steigler, Jr., was regional manager and senior vice-president of Columbia Savings. In June 1989, Steigler and Welch talked to Herman about making some staff cuts. They also advised her that there were rumors being spread about Welch and Heit-man and that the rumors were not true. Herman subsequently met individually with Steigler and.told him for the first time of her belief about the relationship between Welch and Heitman.
Steigler then conducted a staff meeting at which he denied the rumors that Welch and Heitman were having an affair. He testified that he told the staff: “Basically, we’ve got work to do. Whatever’s happened, I checked it out. I don’t concur with it. We’ve got work to do. Let’s tend to your business.” Two tellers quit immediately after the meeting. One of them told Steigler she knew the rumors to be true.
Steigler testified that the employees were divided between those who believed and those who did not believe that Welch and Heitman were having an affair. He described the office environment as “uncomfortable” for awhile. He seems to have been of the opinion that the departure of the two tellers reduced the level of discomfort, but he said that the environment remained uncomfortable until Debra Herman left in April 1990.
Additional facts will be stated as necessary to our discussion of the issues raised in this appeal.
The first issue is whether the district court erred in granting summary judgment in favor of the defendants on Herman’s sexual harassment claim in the form of an abusive or hostile work environment.
“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. 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.” Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 1, 863 P.2d 355 (1992).
“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. [W]here . . . reasonable minds could differ as to the conclusions drawn, from the evidence, summary judgment must be denied. [Citation omitted.] ... If factual issues do exist, they must be material to the case to preclude summary judgment.” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
In the present case, the basis for the district court’s ruling was that Herman “never made a showing that she was discriminated against because of her gender.” In pertinent part, the district court’s decision states:
“Defendants are correct in their claim that plaintiff must show some form of gender based discrimination to support her Title VII claim. Wolff v. Berkley Inc., 938 F.2d 100, 103 (8th Cir.). In order to. support her claim, the plaintiff must establish a prima facie sex- discrimination case. Benton v. Kroger Co., 640 F. Supp. 1317, 1322 (S.D. Texas 1986). In Fair v. Guiding Eyes for the Blind Inc., 742 F. Supp. 151, 155 (S.D.N.Y. 1990), it was held that a showing must be made that but for the fact of her sex, the plaintiff would not have been the object of harassment. In other words, to establish a claim under Title VII, 'the plaintiff must show that she was treated differently than similarly situated persons of the other gender.’ Id, at 156. Furthermore, in Miller v. Aluminum Company of America, 679 F. Supp. 495 (W.D. Pa. 1988), the court held that an alleged affair was simply inadequate to support a claim for violation of Title VII.
“In this case, the plaintiff has failed to demonstrate the requirements of a Title VII claim. She has simply never made a showing that she was discriminated against because of her gender. Indeed, the [defendants] claim in their response that ‘The rumors of the alleged affair very definitely affected the Topeka branch office of Columbia Savings by dividing it between those that believed and those who didn’t.’ Clearly, this allegation indicates that the alleged affair affected every individual in the office, regardless of sex. Conversely, plaintiff has failed to prove that she was ever harassed on the basis of her sex.
“Plaintiff attempts to support her Title VII claim with a conclusion that this ‘was the type of conduct that affects women in the workplace more than men.’ This is simply not supported by the evidence. At any rate, this claim is subsumed by both the Fair case and the Miller case, both of which dealt with the concept of a ‘hostile work environment.’ ”
In its recent decision in Harris v. Forklift Systems, Inc., 510 U.S. _ 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993), the United States Supreme Court considered the “definition of a discrimi-natorily abusive work environment’ (also known as a ‘hostile work environment’) under Title VII of the Civil Rights Act of 1964.” 126 L. Ed. 2d at 300. Certiorari was granted for the specific purpose of resolving the question whether conduct which did not produce a serious effect on the claimant’s psychological well-being was actionable. 126 L. Ed. 2d at 301. The Supreme Court unanimously rejected the psychologically injurious standard. The standard “reaffirmed” in Harris “takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” 126 L. Ed. 2d at 302.
The Supreme Court’s concise opinion in Harris serves as a primer on the subject of sexual harassment that takes the form of a hostile work environment. What is clear from that opinion and germane to the present case is that hostile work environment claims, like all other Title VII claims, are claims that members of one sex (race, religion, etc.) are treated differently from members of another. Title VII makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to . . . conditions ... of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(l). In other words, Title VII is violated by disparate treatment of, in this case, men and women. In a case such as the present one, Title VII comes into play when there is discriminatory conduct sufficiently severe or pervasive to create a work environment abusive to employees because of their gender. 126 L. Ed. 2d at 302. In the Supreme Court’s words,
“Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would i-easonably be perceived, and is perceived, as hostile or abusive, Meritor [Savings Bank v. Vinson, 477 U.S. 57, 67], there is no need for it also to be psychologically injurious.
“This is not, and by its nature cannot be, a mathematically precise test. . . . But we can say that whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” 126 L. Ed. 2d at 302-03.
In the present case, the district court found that the evidence simply did not support Herman’s claim that she, along with the other women in the office, had been subjected to disadvantageous conditions of employment to which men in the office were not subjected. Herman contended that there was disparate treatment of women in that the charged atmosphere of the workplace was more offensive to them.
Another argument which Herman hints at is that the impact rather than the treatment was disparate. Without stating it as a legal theory, Herman spelled out circumstances from which she wanted the district court to infer that the hostile work environment at Columbia Savings at the time of the alleged affair between Welch and Heitman caused or contributed to causing the turnover of five female employees.
Even if Herman had developed the legal theory and provided some authority for an impact as opposed to a ti-eatment analysis being appropriate to this individual sexual harassment/sex discrimination case, summary judgment would have been proper due to the deficiencies in her proof. Herman shows that five female employees quit or were fired during the period when Welch and Heitman were alleged to have been sexually involved. It is the defendants’ position that any hostility in the work environment resulting from Welch’s involvement with Heitman was the same for male and female employees. Herman argues that it triggered the end of their employment for five women but no men. For this evidence to have any significance, Herman would have to show with some simple figures the demographics among the workers who potentially were affected by Welch’s conduct. If all those potentially affected were women, the fact that more women than men left would not be meaningful in this context.
Moreover, the reasons advanced by Herman for the women leaving their employment at Columbia Savings seem to be, at best, too many steps removed from sexual harassment to be actionable under Title VII. There is no claim that any of the women left because they were targets of Welch’s sexual advances or subject to his physical contact or jokes and innuendos. Herman has provided citations to legal authority for the proposition that a woman need not be singled out as the object of harassment to have a Title VII claim against an employer that permits or maintains an atmosphere where harassment is pervasive. That, however, is not the issue here. The issue is that sexual harassment really is not what is being complained about. Herman includes in her recitation of facts incidents of advances, contact, jokes, and innuendos, but those incidents are not alleged to have caused the women to leave Columbia Savings.
The complaints of the five women who left are only incidentally linked to sexual activity. Welch, according to Herman, was neglecting his work and acting in an unprofessional manner due in part to his preoccupation with Heitman. The resentment of other employees was stirred because they believed that they were burdened with compensating for Welch’s shortcomings and was compounded when management took the position that their complaints were unfounded and, in fact, fabricated. The only sexual activity involved is the alleged affair between Welch and Heit-man. It, along with his drinking, is alleged to have been detrimental to his job performance. We do not believe that an actionable Title VII claim may be made simply from allegations that female employees had to take up the slack for a male supervisor who was shirking his duties while involved in a consensual affair with another supervisor.
Federal courts faced with claims of hostile work environments created by an affair between noncomplaining employees have concluded that such circumstances fall short of violating Title VII. In Miller v. Aluminum Co. of America, 679 F. Supp. 495 (W.D. Pa.), aff'd 856 F.2d 184 (3d Cir. 1988), the plaintiff complained that her supervisor unjustly criticized her work while exempting a co-worker from criticism because the co-worker was involved in a sexual relationship with the plant manager. She also complained of being snubbed, being assigned to menial jobs, and being subjected to embarrassment when the co-worker betrayed her confidences to the plant manager. 679 F. Supp. at 500-01. The district court stated that the conditions of which Miller complained were “not poisonous enough to create an actionable hostile work environment” and that “[hjostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim.” 679 F. Supp. at 502.
In Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990), the plaintiff complained that the sexual affair between her supervisor and a female employee who was the plaintiffs subordinate created a hostile work environment, Drinkwater contended that she should not be oppressed because her male supervisor’s attraction to a co-worker interfered with the workplace. The Third Circuit Court of Appeals found support for Drinkwater’s legal theory in the EEOC Sexual Harassment Guidelines, 29 C.F.R. § 1604.11(a) (1985). 904 F.2d at 859. The Court of Appeals also examined relevant case law, which it described as “still relatively sparse.” 904 F.2d at 859. The court noted that the hallmark of this line of cases is that “it is the environment, not the relationship, that is actionable. The relationship may contribute to the environment, but it is the workplace atmosphere that is critical.” 904 F.2d at 861. The court observed:
“A sexual relationship between a supervisor and a co-employee could adversely affect the workplace without creating a hostile sexual environment. A supervisor could show favoritism that, although unfair and unprofessional, would not necessai'ily instill the workplace with oppressive sexual accentuation. The boss could treat everyone but his or her paramour badly and all of the subordinates, save the paramour, might be affected in the same way.” 904 F.2d at 862.
Under New Jersey law, which die federal court was obliged to apply, “this kind of situation does not create a claim for sexual harassment.” 904 F.2d at 862. Unable to distinguish the facts alleged by Drinkwater, the court concluded that summary judgment against her was proper. The court concluded that Drink-water had not come forward with sufficient evidence to show that the workplace environment caused her to suffer because of her sex. 904 F.2d at 863.
In the present case, the district court commented in a similar vein that the evidence that the rumors of an affair between Welch and Heitman divided the employees into two camps, believers and nonbelievers, established that all employees regardless of gender were affected. Evidence of a division in the ranks does not seem, however, to be a sound evidentiary basis for the conclusion that the effect did not depend on gender. This portion of the district court’s reasoning is unnecessary to its conclusion.
In summary, we find that the entry of summary judgment against Herman on her gender discrimination claim was proper. The burden of her proof was that due to Dan Welch’s conduct the workplace environment at Columbia Savings would reasonably be perceived as hostile or abusive to female employees and not so to male employees. This she failed to do.
The evidence tending to show that it was women who were exposed to disadvantageous conditions consisted of Welch’s unwelcome advances to Marlene Sisson and Herman. Sisson testified that on one occasion Welch “grabbed me around the waist and pulled me back against him.” The reasons which Sisson gave for leaving Columbia Savings, however, do not include this incident and seem to be gender-neutral. She complained of “a lot of tension” due to her female supervisor bringing personal problems to work with her and to Welch being unavailable physically and temperamentally for consultation. She also complained of her employer’s failure to train her in closing procedures as promised. Herman testified that at the end of a social evening when she and Welch both had been drinking, he tried to kiss her. That incident was in June 1988, and she testified that there were no more unwelcome advances. Her counsel denied that she was basing her claim on the attempted kiss.
The other evidence which Herman produced was of the embarrassment and additional work which employees experienced as Welch’s job performance suffered. Herman did not produce evidence which demonstrates that women but not men were exposed to these conditions. Thus, even though these disadvantageous conditions were created at least in part by Welch’s con sensual sexual relationship with Heitman, they do not give rise to a gender discrimination claim under Title VII.
Herman did not make a prima facie case of sex discrimination. From the evidence produced in conjunction with the motion for summary judgment, she is unable to sustain the ultimate burden of showing that the conditions created by Welch’s conduct, in particular his consensual relationship with another employee, would reasonably be perceived as hostile to the women and not the men employees. As stated by Justice Ginsburg in her concurring opinion in Harris: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” 126 L. Ed. 2d at 304. We find the district court’s entry of summary judgment was proper.
The next issue is whether the district court erred in granting summary judgment in favor of the defendants on Herman’s retaliatory discharge claim. The reasons given by Columbia Savings in April 1990 for terminating Herman were her poor work performance, insubordination, failure to get along with others, and bad attitude. The precipitating event was Herman’s removing the loan file of Mike Martin from the office' and turning it over to her attorney, who discussed it in a telephone conversation with Allen Harnisch, vice-president and general counsel of Columbia Savings. Herman contends that she actually was fired because she reported irregularities in the mortgage loan file of Mike Martin. Without deciding whether there was merit to Herman’s claims of irregularities, the district court concluded that she could not prevail on her retaliatory discharge count because she could not show that the alleged irregularities amounted to violations of “‘rules, regulations, or the law pertaining to public health, safety, and the general welfare’ ” (quoting Palmer v. Brown, 242 Kan. 893, 900, 752 P.2d 685 [1988]).
Herman had participated in the denial of an earlier application to Columbia Savings for a bond loan to Martin and his wife. The earlier application by the Martins for a bond loan was denied, at least in part, because Mike Martin was a Columbia Savings employee and regulations prohibited bond loans being made to employees. In her response to the motion for summary judgment, Herman controverted the defendants’ statement that the earlier Martin application was denied solely because it was for a bond loan. She stated that an additional reason for denial was the Martins’ failure to qualify “pursuant to Columbia Savings Regulations on qualification.” The evidence does not support her position. For example, Herman cited pages of Steigler’s deposition which tend to support the defendants’ statement rather than her own. Steigler testified:
“The loan process dragged on for a long time with the end result being that we denied the loan because he didn’t qualify for the bond money because he was an employee which Mike Martin, I think, conversed with Dan Welch and possibly mentioned something to me, was very upset that if anybody should have known that rule, Deb Herman should have known that rule. It wasn’t a matter of qualifying or not qualifying. It wasn’t a matter as far as financial or credit. It was a matter of he could have been turned down on day one by Deb Herman saying that we can’t make a loan with employees.”
Several months after denying the Martins’ application for a bond loan, Columbia Savings gave them a purchase money mortgage loan. The defendants state that the loan was for $49,222.60; Herman states that the mortgage and note were for $50,000. The parties agree that the collateral was valued at $95,000.
Even if Herman’s allegations of violations of the guidelines and/ or regulations were true, it would not have changed the trial court’s ruling. The district court ruled that the internal policies and guidelines of Columbia Savings were not a rule, regulation, or law pertaining to public health, safety, and the general welfare within the meaning of Palmer, 242 Kan. 893, Syl. ¶ 3. There, the court stated:
“To maintain an action in tort for retaliatory discharge for ‘whistle-blowing,’ an employee has the burden of proving by clear and convincing evidence, under the facts of tire case, a reasonably prudent person would have concluded the employee’s co-worker or employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare; the employer had knowledge of the employee’s reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report. However, the whistle-blowing must have been done out of a good faith concern over the wrongful activity reported rather than from a corrupt motive such as malice, spite, jealousy or personal gain.”
Herman’s first-line argument seems to be that the underwriting guidelines of Columbia Savings are rules pertaining to the general welfare. She contends that the cost currently borne by taxpayers for the collapses of savings and loan associations is the detriment suffered when internal policies and guidelines are violated. Rather than arguing that Columbia Savings’ internal guidelines are the sorts of rules which necessarily were within the anticipation of the court when Palmer was decided, she seems to be arguing that the general welfare would be served if they were to be included within the Palmer category.
Herman’s argument is expressed in part in terms of “public policy.” She argues that the court should declare it to be the public policy of the State of Kansas to encourage savings and loan employees to report irregularities in loan files. Her springboard for this argument is the following language from Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 211, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990):
“As we pointed out earlier, there are activities which an employee-at-will may engage in for which the employee cannot be discharged. One of the activities for which an employee may not be fired is that activity commonly known as ‘whistle-blowing.’ In essence, public policy dictates that an employee-at-will may not be discharged for reporting an unlawful or improper act of his or her employer. Relief for the tort of retaliatory discharge is available where the discharge contravenes a clear public policy.” (Emphasis added.)
Herman confuses the public policy of prohibiting terminations due to whistle-blowing, as in Pilcher, with the more basic idea of categorizing a savings and loan association’s granting a loan where the application does not meet underwriting guidelines as “an unlawful or improper act of his or her employer.” Whether the granting of such a loan constitutes an unlawful or improper act is the question which the district court answered in the negative. That is, the district court correctly concluded that it did not violate “rules, regulations, or the law pertaining to public health, safety, and the general welfare.”
Herman does not argue that Pilcher broadened the scope of conduct from unlawful to improper which may be reported and give rise to a retaliatory discharge claim. Palmerinvolved unlawful conduct. In contrast to the present case, Pilcher involved improper conduct by local government.
Palmer was the administrator of the in-house laboratory for Associates in Family Care, P.A. (AFC). She sued AFC and the AFC doctors, alleging that she was discharged for giving information to authorities which supported her suspicions that at least one of the doctors was billing Medicaid for lab work which had not been performed. 242 Kan. at 894-95. The issue for the court’s consideration was whether her discharge for reporting her employer’s alleged violation of the law could be a tort. In reaching its conclusion that Palmer had stated a cause of action in tort, the court noted that “Medicaid fraud is a felony under both state and federal law.” 242 Kan. at 899.
Pilcher was discharged from her position as a case manager in the community corrections agency in Wyandotte County. She alleged that she was discharged “because her superiors believed she was the source of an article in the Kansas City Times which was highly critical of certain hiring practices engaged in by the county.” 14 Kan. App. 2d.at 211. The Court of Appeals concluded that Pilcher’s evidence satisfactorily “showed all of the elements required by Palmer.” 14 Kan. App. 2d at 212.
We find Herman’s evidence does not meet the elements required by Palmer. In Palmer, we said:
“To maintain such action, an employee has die burden of proving by clear and convincing evidence, under the facts of the case, a reasonably prudent person would have concluded the employe’s co-worker or employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare; the employer had knowledge of the employee’s reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report. However, the whistle-blowing must have been done out of a good faith concern over the wrongful activity reported rather than from a corrupt motive such as malice, spite, jealousy or personal gain.” 242 Kan. at 900.
The district court’s entry of summary judgment was correct.
The final issue is whether the district court erred in denying Herman’s motion to amend her petition to add a claim for retaliatory discharge under Title VII.
42 U.S.C. § 2000e-3(a) (1988) provides in pertinent paid:
“It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.”
Herman filed her petition on December 5, 1990. It contained two counts: retaliatory discharge for reporting irregularities in the Martin loan file and sexual harassment under Title VII. On August 20, 1992, Herman filed a motion seeking leave to amend her petition to add a claim for retaliatory discharge under Title VII.
The defendants opposed the motion to amend. On November 4, 1992, the district court asked counsel for Herman to respond to argument advanced by the defendants that the proposed amendment did not state a cause of action. In addition, oral argument was held. On December 21, 1992, the district coui-t issued a memorandum decision denying the motion to amend. The rationale of the district court was that Title VII did not apply because there was no merit to Herman’s sexual harassment claim under Title VII. Here, Herman charged that she and other employees were the subjects of sexual harassment in violation of Title VII. She sought to amend her petition to add the claim that she was discriminated against by her employer because she made that charge.
Herman cites to a federal case, Jennings v. Tinley Park Comm. Consol. Sch. Dist. 146, 864 F.2d 1368 (7th Cir. 1988), which supports her position that she need not prove that the employer’s conduct violated Title VII. The Seventh Circuit Court of Appeals stated: “The plaintiff need not establish that the action she was protesting was actually an unlawful employment practice; but rather only that she had a reasonable belief that the action was unlawful. Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045-1046 (7th Cir. 1980).” 864 F.2d at 1372.
The defendants contend that Herman’s proposed amendment did not state a cause of action. First, they argue that the claim was time barred because when Herman sought to add it, more than 90 days had passed since the EEOC had issued her right-to-sue letter. They do not cite any authority for their position. There does not seem to be any merit to this argument. K.S.A. 60-215(c) provides in pertinent part as follows: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”
Second, the defendants contend that the “proposed amendment had no substance under Title VII.” This appears to be the rationale of the district court, with the added twist that the defendants assert that Herman did not believe that she or the other employees were being subjected to sexual harassment. This seems to be a reference to the Seventh Circuit’s requiring the plaintiffs belief that the conduct was unlawful to be reasonable. See 864 F.2d at 1372.
The defendants also object to the amendment on the ground that Herman delayed too long before seeking leave to add the count for retaliatory discharge under Title VII. They state that discovery was closed by the time she filed her motion to amend. They contend that additional discovery would have been necessary if the amendment had been permitted. They contend that “the expense and delay of new discovery would have been prejudicial” to them.
Herman argues that there were no surprises in her proposed retaliatory discharge under Title VII claim because she already had pled retaliatory discharge and violation of Title VTI. She denies, therefore, that the defendants would have been prejudiced by the amendment.
Even though Herman’s retaliation and employment discrimination claims both had been explored in the course of discovery, the defendants had no reason to inquire about a link between the two. In her response to the defendants’ initial motion to dismiss or strike, Herman stated that “the Plaintiff has not pled a retaliatory discharge claim under Title VII.” It seems entirely plausible, therefore, that some additional discovery would be necessitated by the proposed amendment. It is questionable that the amount or type of additional discovery would be -overly burdensome or prejudicial to the defendants.
With regard to appellate review of a district court’s decision on amending pleadings, this court has stated: “A trial court is given broad discretionary power under K.S.A. 60-215 to permit the amendment of pleadings, and its actions thereto will not constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party.” Williams v. Amoco Production Co., 241 Kan. 102, Syl. ¶ 2, 734 P.2d 1113 (1987). In Williams, the plaintiffs initially claimed damages for crop loss to two sections (1,280 acres). Although it was 10 years later and 4 months before trial, they were allowed to amend their pleadings to add a damage claim for 1,700 additional acres, and this court found no abuse of discretion. 241 Kan. at 109-10.
In Schierenberg v. Hodges, 221 Kan. 64, 558 P.2d 133 (1976), this court revei'sed the district court’s entry of summary judgment against the plaintiff and also concluded that he should have been permitted to amend his petition. Factors mentioned by the court in its consideration of the amendment issue were that “[t]he case was not an old one on the court’s docket” and that plaintiff had not examined certain pertinent “records until they were introduced in evidence at the hearing on the motion for summary judgment.” 221 Kan. at 66.
In James v. City of Wichita, 202 Kan. 222, 447 P.2d 817 (1968), the plaintiffs original petition against the city was defective in that it did not include allegations that she had complied with a statute which required notice to be given to the city before suit was filed. The city conceded that James had satisfied the statutory precondition, 202 Kan. at 225, but she had failed to aver performance of it. The city’s opposition to the amendment was on the ground that the limitations period expired between initiation of the suit and James’ request for leave to amend. Relation back under K.S.A. 60-215(c) obviated the objection, and there was no prejudice to defendants. Thus, the case was remanded with instructions to permit the amendment. 202 Kan. at 227-28.
In the present case, the district court stated its reason for denying leave to amend. It is not obvious from the circumstances that the district court’s discretion was abused, as was obvious in Schierenberg and James. As discussed above, the defendants contend that they would have been prejudiced by the amendment, but their contention is questionable. On the other hand, it is questionable why Herman’s Title VII l'etaliatory discharge claim was not raised until some 20 months after the petition was filed. In addition, we have affirmed the trial court’s granting of summary judgment in favor of the defendants on the discriminatory hostile work environment claim. “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.” In re Marriage of Soden, 251 Kan. 225, Syl. ¶9, 834 P.2d 358 (1992). We cannot say that no reasonable person would take the view adopted by the district court. We therefore find no abuse of discretion.
The judgment of the district court is affirmed.
Six, J., not participating.
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The opinion of the court was delivered by
Six, J.:
This case arises from an employment contract dispute between an oncological radiologist and the St. Francis Regional Medical Center in Wichita (St. Francis). The jury awarded the radiologist, S. Sakuntala Dutta, M.D., $552,756 as damages for loss of income due to the breach by St. Francis of a written employment contract. The hospital appealed.
The trial court granted the hospital’s motion for summary judgment, finding that Dutta was not entitled to a due process hearing under provisions of the hospital’s medical staff bylaws. Dutta cross-appealed the due process ruling.
The Court of Appeals set aside the verdict and remanded for a new trial on the damage issue. Trial court rulings and the jury verdict as to all other issues were affirmed. We granted Dutta’s petition for review of the two issues now before us: (1) damages, and (2) the denial of a due process hearing. We affirm the Court of Appeals on the due process hearing issue. Justice McFarland has recused. The judgment of the Court of Appeals reversing the district court on the damage issue is affirmed by an equally divided court.
Facts
We recite the facts as stated by the Court of Appeals:
“Dutta is a radiologist who began working in the radiology department of the hospital July 1, 1987, as an employee of Dr. Maurice Krause, the medical director of the hospital’s radiology department. The hospital terminated Dr. Krause’s employment as medical director on August 5, 1988, but encouraged Dutta to remain with the hospital. On August 8, 1988, Dutta and the hospital entered into a written employment contract with a primary term of 90 days. If a new medical director had not been hired by the hospital within the 90-day period, the agreement was to be automatically extended for a second 90-day period.
“Following a period of recruitment and interviews, the hospital offered Dr. Donald Tan the position of medical director of the radiology department on October 5, 1988. Dr. Tan and the hospital executed a contract on April 24, 1989, making Dr. Tan the medical director of the radiology department. The contract granted Dr. Tan the right ‘to provide radiation oncology services on an exclusive basis’ subject to the exception of allowing Dutta to continue her practice of radiation oncology at the hospital. On April 24, 1989, the hospital notified Dutta the 90-day contract had expired and Dr. Tan was the new medical director. The letter provided in part:
‘It is our intent at this time to establish an exclusive contract with Dr. Donald C-S Tan for medical direction and radiation therapy services at SFRMC. Your medical staff privileges to practice radiation therapy at SFRMC will not be affected by this action. You will be allowed to maintain your current office space for radiation oncology activities; however, you should make alternative arrangements for your billing and collection activities.’
“Dutta and Dr. Tan practiced independently of each other in the same facility, but Dr. Tan was unhappy with this arrangement. Dr. Tan requested exclusive privileges on October 13, 1989, stating he could not continue as medical director without exclusivity.
“An exclusive contract was authorized by the hospital and Dutta was notified on February 2, 1990, she would not be permitted to provide radiation therapy services at the hospital after May 1. By letter, Dutta twice requested a hearing on the hospital’s decision to revoke her right to use hospital facilities. Both requests were denied.
“Dutta’s last day at the hospital was May 1, 1990. Just before she left the hospital, she began working two days per week at a hospital in Halstead. While at Halstead, Dutta learned of an opening at the Hutchinson Clinic in Hutchinson. Dutta interviewed for the position and agreed to work three days a week at the clinic. Dutta signed an agreement with the Hutchinson Clinic on June 18, 1990. Sometime in August of 1990, she terminated her employment at Halstead. Dutta worked full time at the Hutchinson Clinic from August of 1990 through June of 1991. At that time, although her work had been satisfactory, the Hutchinson Clinic replaced Dutta with another physician.
“Dutta presented evidence about the purpose of the requirement in her contract with the hospital that the new medical director be mutually acceptable to both parties. Dutta stated she informed Douglas Stanley, the attorney who represented her in contract negotiations with the hospital, that the new medical director ‘has to be compatible, you know, I have to like that person, I should feel comfortable to work with him.’ Doug Stanley testified the ‘mutually acceptable’ language in Dutta’s contract referred to ‘her entering into a business relationship, a partnership with the person coming in. That was the whole discussion in terms of mutually acceptable. There was never any discussion . . . about medical credentials of the person.’ Lynn Zatzkin, a hospital administrator, testified the parties included the phrase ‘mutually acceptable’ in the contract because ‘[w]e both agreed that we wanted the person being recruited to be compatible with Dr. Dutta.’
“Dutta admitted she understood her contract with the hospital obligated her to negotiate a business relationship with the new director in good faith. Dutta further indicated it is standard practice among physicians who are establishing business relationships to set up an employer-employee relationship for at least a year before a partnership is formed. Dutta emphasized, however, at the time of the negotiations with the hospital, she had already been employed by Dr. Krause for a year and had discussed forming a partnership with him. Dutta believed, based on her prior year of service at St. Francis, the new medical director should be required to form a partnership with her immediately.
“The facts regarding Dutta’s compensation are these: When Dutta began working at the hospital as an employee of Dr. Krause, her contract provided a salary of $150,000 per year. The August 1988 agreement with the hospital provided Dutta was to receive $2,000 per month from the hospital and be allowed to retain all of the billings she generated through the treatment of patients. Dutta’s tax accountant, Gary Freeman, testified Dutta’s earnings between August of 1988 and May of 1990 averaged $30,880 per month or $370,560 per year. Dutta’s accountant estimated she earned $286,512 during the year she worked at Hutchinson.
“Dr. Carl Bogardus, Chairman of the Department of Radiation Therapy at the University of Oklahoma, testified regarding Dutta’s probable loss of future income. Bogardus indicated as a result of her termination, Dutta would suffer approximately $648,480 in lost income. Bogardus’ opinion was it would take Dutta at least one year to find comparable employment to that which she had lost at the hospital and during that year she would have no income. In response to a question about Dutta’s probable earnings after finding a job, Dr. Bogardus replied:
‘Well, it obviously is a steadily increasing number. You start on day one with no income and the income gradually builds up. By the end of your first year you would be making about half your potential income. By the end of the second year you would probably at least be making three-quarters and on into full income by the end of your'third year.’ ” 18 Kan. App. 2d at 246-49.
Denial of the Due Process Hearing
Count I of Dutta’s petition alleged a denial of due process in failing to grant her a hearing under the St. Francis medical staff bylaws. The trial court granted the hospital’s motion for summary judgment, dismissing count I before trial. The Court of Appeals observed:
“None of the parties claim any genuine issue of material fact which would bar summary judgment. Whether the bylaws constitute a contract of employment is not an issue in this case as the hospital admits it is bound by its own bylaws. The only issue is whether the hospital bylaws required a hearing before a committee of the medical staff prior to the hospital decision to revoke Dutta’s right to use the facilities and equipment of the radiology department.” 18 Kan. App. 2d at 249.
The interpretation and legal effect of written instruments are matters of law. Federal Land Bank of Wichita v. Krug, 253 Kan. 307, Syl. ¶ 1, 856 P.2d 111 (1993). Our standard of review is unlimited on a question of law. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991).
St. Francis contended that it could deny Dutta access to equipment without altering her staff privileges; consequently, the due process hearing right was not triggered. 18 Kan. App. 2d at 250.
The Court of Appeals emphasized that Dutta’s staff membership remained intact and that the decision to revoke her access to the radiology facilities was purely a business decision. 18 Kan. App. 2d at 251. We agree with the trial court and the Court of Appeals.
The dispute centers around a discussion of the bylaws, Article VII, Section 1(a), which states:
“Section 1. Right to Hearing
a. Any practitioner who receives notice of a recommendation of the Executive Committee or the Board of Directors, if it initiated the recommendation, that will adversely affect his appointment to or status as a member of the Medical Staff or his exercise of clinical privileges will be entitled to a hearing before an ad hoc committee of the Medical Staff, except as otherwise so provided in the Bylaws.”
Additionally, Section 1(c) indicates:
“c. All hearings will be in accordance with the procedural safeguards set forth in this Article VII to assure that the practitioner is accorded all rights to which he is entitled.”
Section 1(a) sets out two contexts in which a physician will be entitled to a hearing: when a decision adversely affects a physician’s status as a member of the medical staff or when a decision adversely affects clinical privileges. Hearings under both situations are expressly controlled by the Article VII procedural safeguards. Because Dutta is still a member of the medical staff, the only question is whether the decision to preclude her from access to the radiology department adversely affects her exercise of clinical privileges.
As St. Francis observes, Article VII, Section 6, entitled “Conduct of Hearing,” Subsection (j) states: “The hearing provided for in these Bylaws is for the purpose of resolving, on an intra-professional basis, matters bearing on professional competency and conduct.” Dutta’s position would require that Section 6(j) be ignored. Section 6(j) mandates that decisions associated with adverse competency determinations are to be considered in a due process hearing and expressly indicates the intended subject matter: The “hearing provided ... is for the purpose of resolving” professional competency and conduct matters. (Emphasis added.)
Furthermore, Article IV, entitled “Medical Staff Membership Clinical Privileges Status,” Section 1 states:
“Section 1. Nature of Medical Staff Privileges
“Membership on the Medical Staff of St. Francis Regional Medical Center is a privilege, and not a right of any practitioner, which shall be extended only to professionally competent practitioners who continuously meet the qualifications, standards, and requirements set forth in these Bylaws, Rules, and Regulations. Appointment to the Staff will confer on the appointee only those clinical privileges granted by the Board of Directors in accordance with tírese Bylaws, Rules and Regulations.”
Clinical facility use is a privilege, not a right. Section 2, entitled “Clinical Privileges Delineation,” Subsections (a) and (b) further explain the nature of this privilege and the relationship between medical staff members and hospital administration:
“a. A practitioner may be granted privileges in accordance with these Bylaws, Rules, and Regulations and the policies of the Medical Staff and Board of Directors, subject to approval by the Board of Directors. The granting of clinical privileges does not of and by itself constitute membership or eligibility for membership in the Medical Staff. Clinical privileges will be granted and monitored by the Medical Staff of St. Francis Regional Medical Center.
“b. Every practitioner practicing at the Medical Center by virtue of Medical Staff membership or being granted clinical privileges, shall, in connection with such practice, be entitled to exercise only those clinical privileges specifically granted to him by the Board of Directors, except as provided in Section 5 and 6 of this Article.”
A grant of medical staff membership does not guarantee a companion grant of clinical privileges. Article IV, Section 3(a) provides further support for this view: “Membership on the Medical Staff of St. Francis Regional Medical Center does not denote the right to exercise the clinical privileges requested.”
Dutta indicates that the Court of Appeals ignored the fact that the St. Francis bylaws expressly set forth the limited circumstances in which a practitioner will not have a right to a hearing. She maintains that the Court of Appeals ignored Article VII, Section 1(a) of the bylaws and improperly relied on Article VII, Section 6(j). Dutta asserts that the loss of access to the necessary equipment adversely affects the exercise of her clinical privileges so she must be given a hearing under Article VII, Section 1(a).
Dutta is fearful that the Court of Appeals’ reasoning will allow hospitals to fabricate pretextual business justifications to eliminate practitioners who are not to the hospital’s liking. She believes the decision of the Court of Appeals will make it easier for hospitals to avoid complying with the procedural requirements of their bylaws.
St. Francis argues that Dutta invites us to disregard a material provision in the bylaws, Article VII, Section 6(j). The hospital believes that this express provision provides an independent basis for affirming the Court of Appeals’ decision.
St. Francis asserts that the Court of Appeals’ decision is supported by the distinction between the use of facilities and a grant of clinical privileges. The hospital contends that clinical privileges do not constitute an employment contract or guarantee that a practice will have a guaranteed economic value. Consequently, when St. Francis granted Dr. Tan an exclusive contract, it did not make an adverse decision concerning Dutta’s qualifications to have clinical privileges.
Amicus The American College of Radiolog)' (ACR) supports Dutta’s contentions, asserting that St. Francis’ action would adversely affect Dutta’s status as a member of the medical staff because she could no longer be active in patient care and could not exercise her clinical privileges. According to ACR, the Court of Appeals’ emphasis on the fact that Dutta could still admit patients was “formalism,” not reality. No reasonable person would choose to have services ordered by Dutta and performed by the new oncologist and then pay two radiation oncologists rather than one.
ACR reasons that personnel decisions can affect the quality and availability of medical care, regardless of the basis for the decisions. ACR emphasizes that public policy demands that the medical staff be given the opportunity to identify and assess the medical care ramifications of excluding or including particular physicians. ACR argues that the governing board, which normally is comprised of lay persons unschooled in medical science and practice, should have the benefit of the medical staff’s expert judgment.
Amicus The Kansas Hospital Association supports the arguments advanced by St. Francis.
We believe the bylaws, when considered as a whole, support the conclusion of the Court of Appeals that Dutta was not entitled to a hearing because the hospital’s managerial decision was based on business considerations. The Court of Appeals distinguished a case relied on by Dutta, Lewisburg Community Hosp. v. Alfredson, 805 S.W.2d 756 (Tenn. 1991), on the basis that St. Francis’ bylaws limit a physician’s right to a hearing to those matters bearing on professional competency and conduct. 18 Kan. App. 2d at 253. We agree. The threshold issue in Lewisburg was whether the bylaws formed a contract with the plaintiff radiologist as a member of the medical staff. 805 S.W.2d at 759. St. Francis, in the case at bar, has admitted the contractual relationship. We find no reference in Lewisburg to a bylaws provision limiting hearings to matters of professional competency. The hospital bylaws in Lewisburg were construed to require the hospital to permit the use of certain facilities by physicians granted clinical privileges in a particular specialty. 805 S.W.2d at 761. No such requirement appears in the St. Francis bylaws. The weight of authority supports the conclusion of the Court of Appeals. Lew-isburg appears to be the only contrary authority. We are unpersuaded by the reasoning in Lewisburg. A parallel medical employment issue was recently reviewed in Bartley v. Eastern Maine Medical Center, 617 A.2d 1020 (Me. 1992). Bartley held that because the staff privileges of the plaintiff emergency department physicians had not been revoked or reduced, the physicians were not entitled to notice and hearing under the hospital bylaws. The physicians in Bartley were notified that they could no longer work in the emergency room unless they negotiated new employment contracts with the hospital. The physicians’ staff privileges were not terminated when the hospital made different arrangements for staffing the emergency department. The Bartley court noted that there is a distinction between a grant of privileges and the right to exercise privileges. Bartley found that the hospital bylaws did not apply to the emergency room physicians’ terminations because there had been no allegation of unprofessional conduct or privilege reduction. 617 A.2d at 1021. See Collins v. Associated Pathologists, Ltd, 844 F.2d 473, 481 (7th Cir.), cert. denied 488 U.S. 852 (1988); Engelstad v. Virginia Mun. Hosp., 718 F.2d 262, 268 (8th Cir. 1983); Lewin v. St. Joseph Hospital of Orange, 82 Cal. App. 3d 368, 391, 146 Cal. Rptr. 892 (1978); Anne Arundel Gen. Hosp. v. O'Brien, 49 Md. App. 362, 371-73, 432 A.2d 483 (1981); Holt v. Good Samaritan Hosp. & Health Ctr., 69 Ohio App. 3d 439, 445-46, 590 N.E.2d 1318, (1990); and Alder v. Montefiore Hosp. of W. Pa., 453 Pa. 60, 80-81, 311 A.2d 634 (1973), cert. denied 414 U.S. 1131 (1974).
The Damage Issue
The Court of Appeals found that the evidence supported Dut-ta’s claim to a damage award. However, the jury’s determination as to the amount was rejected, and the case was remanded for a new trial on the issue of damages only. Justices Lockett, Six, and Abbott believe: (1) the jury’s award is within the perimeters of the trial testimony; (2) the Court of Appeals has improperly invaded the province of the jury. Chief Justice Holmes and Justices Allegrucci and Davis agree with the analysis of the Court of Appeals. The court is equally divided on the damage issue; consequently, the judgment of the Court of Appeals reversing the judgment of the district court and remanding is affirmed. See Pierce v. Pierce, 244 Kan. 246, 247, 767 P.2d 292 (1989).
Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed. Judgment of the district court is affirmed in part, reversed in part, and remanded.
McFarland, J., not participating. | [
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The opinion of the court was delivered by
McFarland, J.:
These consolidated appeals concern two real estate tax foreclosure proceedings. Issues raised in the various appeals and cross-appeals concern:
1. The propriety of the district court’s method of cost allocation under K.S.A. 79-2803;
2. the propriety of the district court’s determination that certain costs should be included in the allocation; and
3. whether the district court erred in setting aside the sale of one tract.
The district court used the same method of cost allocation in each case. The court established the, method of cost allocation in dispute in case No. 91 C 202 (appeal No. 69,200) and adopted said method in case No. 92 C 302 (appeal No. 69,199). There is no claim that the facts in the two cases warrant a different method of cost allocation being employed in each, or that the two cases are distinguishable in any respect. Rather, the plaintiff, Board of County Commissioners (Board), contends that the method of cost allocation it had prepared was fair, equitable, and in accordance with K.S.A. 79-2803, and that the district court erred in rejecting it in favor of the method developed by the court. For the sake of simplicity, we shall refer to appeal No. 69,200 as the Caywood appeal and appeal No. 69,199 as the Currie/Brown appeal.
The pertinent facts in the Caywood appeal are as follows. On June 20, 1991, the Board brought an action, pursuant to K.S.A. 1992 Supp. 79-2801, to enforce its tax liens for unredeemed real estate by public sale of 208 separate parcels of real estate. Ann-Joleta Caywood was the owner of parcel No. 52 situated at 4510 S. Handley Avenue, in Wichita. Ms. Caywood was duly served. On September 6, 1991, judgment was entered for delinquent taxes, penalties, and interest on said tract. On October 10, 1991, said tract was sold by public sale for $19,500.00. The sale was confirmed on October 25, 1991.
On November 6, 1991, an order approving apportionment of costs, charges, and expenses was filed by the Board. The order, along with its attachments, set forth the Board’s methodology of cost, expense, and balance allocation pursuant to K.S.A. 79-2803. Ms. Cay wood’s delinquent taxes, interest, and penalties totalled $2,703.11. Her cost allocation was $10,286.16, leaving her a refund of $6,510.73.
Thereafter, Ms. Caywood filed a motion to modify the orders concerning the cost allocation, contending that the Board’s allocation of costs did not comply with K.S.A. 79-2803 in that the Board’s method of allocation did not equitably apportion the costs of the tax foreclosure sale.
At the hearing, the Board presented the method it had utilized in allocating costs plus two alternative versions. Ms. Caywood presented her own version. The district court developed and adopted its own version. In so doing, the court held: (1) Its allocation of costs complied with K.S.A. 79-2803; (2) the Board should use that method to equitably apportion costs; (3) the Board’s method of cost allocation was unconstitutional as violating the Fourteenth Amendment’s due process and equal protection clauses; and (4) the Board’s method of cost allocation was not equitable as required by K.S.A. 79-2803 because it resulted in the owner of the parcel which received the highest bid at the sale paying too large a share of the costs of the proceedings.
The Board’s method referred to was the original version which had been utilized to make the initial allocation of costs herein.
The pertinent portion of K.S.A. 79-2803 is as follows:
“The court shall as soon as practicable after the sale equitably apportion the cost and charges, and the expenses of the proceedings and sale to each tract, lot or piece of real estate, and the total costs, charges and expenses of the proceedings and sale, less the amount thereof paid by redemptioners shall be deducted from the gross sum received from the sale of all of said lots, tracts, and pieces of real estate, and the balance shall be equitably apportioned to each tract, lot, or piece of real estate that sold for more than its share of the costs, charges, and expenses of the proceedings and sale, and tax liens on all real estate sold or redeemed in said action shall be satisfied and discharged of record.”
At this point it is necessary to discuss the Board’s method and the court’s chosen method. Lest the opinion mire down in math-matical calculations, we will, as much as possible, confine ourselves to a narrative statement of the methods and their results. Under the Board’s method, the net cost of the sale ($36,183.96) and the total selling price of all 112 parcels sold in the sale ($68,595.00) were utilized to determine a cost ratio of .52750142. Applying the cost ratio to the $19,500.00 selling price of the Caywood property resulted in a cost allocation to it of $10,286.16. After deducting this amount, plus the amount of the tax lien ($2,703.11), the Caywood balance refund was fixed at $6,510.73. The net effect of the Board’s method is that each parcel’s allocation of cost is a fixed percentage of that property’s selling price. Note: In arriving at the net cost of sale, costs paid by owners redeeming prior to sale ($4,725.00) were subtracted from a gross cost figure of $40,908.96.
The district court, in its method, utilized the same $36,183.96 net cost figure. This was the amount to be allocated among the 112 parcels which were sold. The district court first divided the net cost figure by the number of parcels to arrive at a $323.07 first-round allocation. Many of the parcels sold for less than this figure. On these properties, the difference between the cost allocation and the selling price formed the basis for the second round of computation. This difference, in the aggregate amount, was $14,527.65. This was allocated among the 33 parcels selling for more than $323.07 — giving a second-round allocation of $440.23. This procedure continued until all costs had been allocated. The Caywood property (parcel No. 52) ended up with a cost allocation of $1,161.12. Under the court’s method, Ms. Caywood’s refund of the balance would be $15,635.77. One of the major differences between the Board’s method and the court’s method is that, under the court’s methodology, costs came off tire top; that is, all proceeds from the sale of a particular tract were available to satisfy its cost allocation. For example, under the court’s method, if a property sold for $50.00, the entire $50.00 went to costs, with the difference between the $50.00 and the $323.07 first-round allocation being carried over to the kitty making up the second-round allocation. Under the Board’s version, only a fixed percentage of the selling price of each parcel went to cost allocation.
The procedural sequence of events has, to some extent, skewed the arguments on this issue. The Board’s method of cost allocation was, apparently, initially presented to the court for approval on an ex parte rather pro forma basis. The journal entry was ap proved. It was only when Ms. Caywood’s motion to modify that order was heard that the court scrutinized the method utilized in arriving at cost allocation and its effect as to the Caywood property. The court then found the method of cost allocation to be inequitable and developed its own method. As a result of this sequence of events, the Board, in essence, is asking us to review the matter on the basis of reviewing the Board’s allocation as an act of the Board — valid unless arbitrary, capricious, unlawful, etc.
K.S.A. 79-2803 does not impose the duty of equitable allocation of costs on the Board. The court has the duty to allocate costs equitably. The Board’s method is a method which it is proposing to the court as a means for the court to comply with its statutory duty. The court is not required to have a legal basis for rejecting this proposal before adopting some other method. Further, this is not a situation where one method is correct and all other possible methods are wrong. In this one case, as will be recalled, the Board presented three different methods at the hearing. The court’s ultimate duty is to equitably apportion the costs of the particular sale before the court.
The court found the Board’s method was inequitable as it resulted in too high a percentage of the costs being placed on the Caywood parcel. The court was not required to find the Board’s method was inequitable before developing and adopting its own method of apportionment. The court also stated the Board’s method was contrary to the Fourteenth Amendment’s equal protection and due process clauses as to Ms. Caywood. However, the constitutional comments are basically surplusage in the context of the issue before us — and they, at most, are a further rationale in support of the court’s finding that the Board’s method was inequitable as to Ms. Caywood. The court did not strike down some official act of the Board on constitutional grounds. The court was giving reasons why the method proposed by the Board for the court to fulfill the court’s statutory duty was unacceptable to the court. Under the circumstances, we believe it is unnecessary to determine the validity of the court’s statements relative to constitutional requirements.
Under the facts and circumstances herein, we conclude that the Board has not shown that the method of apportionment adopted by the court was contrary to K.S.A. 79-2803 or inequitable.
The same method of apportionment was adopted by the court in the Currie/Brown appeal. Ms. Currie’s property was parcel No. 68 in a tax foreclosure action commenced on March 20, 1992. A total of 155 parcels were listed in the petition. Delinquent taxes, penalties, and interest on the Currie property were $6,069.04. The Currie property sold for $32,500.00. The Board sought to allocate costs utilizing the same method it had proposed in the Caywood case. The net costs to be apportioned were $19,621.18. The aggregate selling price of the properties sold was $102,340.00. The cost ratio figure was .19172543. Under the Board’s method, the Currie property’s cost allocation would be $6,231.03. As in the Caywood case, alternative methods of cost allocation were presented by the Board and Ms. Currie. The court adopted the same method it had utilized in the Caywood case. Costs of the sale were allocated equally among the 101 properties actually selling in the sale — $194.27 per parcel. For parcels selling for less than $194.27, the difference between the $194.27 cost and the actual selling price made up the kitty for the second round of allocation. There were 51 parcels in the second round of allocation. This process continued until all costs had been allocated. Under the court’s method, Ms. Currie would have a balance of $26,084.96 refunded to her, representing a selling price of $32,500.00 less $6,069.04 in delinquent taxes, penalties, interest, and $346.20 in cost allocation.
Under the facts and circumstances herein, we conclude that the Board has not shown that the method of apportionment adopted by the court was contrary to K.S.A. 79-2803 or inequitable.
In their cross-appeals, Caywood and Currie contend that excessive and improper costs were included for allocation.
The first challenge is to the amount of docket fees included therein for cost allocation. In the Caywood case a docketing fee of $13,520.00 was paid (208 parcels X $65.00 filing fee). In the Currie/Brown case a docketing fee of $10,075.00 was paid (155 parcels X $65.00 filing fee).
Both Caywood and Currie contend the proper fee for the filing of one petition is $65.00 regardless of the number of parcels included therein upon which tax foreclosure is sought.
We review the issue as a question of law entitled to unlimited review. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991).
K.S.A. 1992 Supp. 60-2001 provides, in pertinent part:
“(a) Docket fee. Except as otherwise provided by law, no case shall be filed or docketed in the district court, whether original or appealed, without payment of a docket fee in the amount of $61,50 to the clerk of the district court.
“(c) Disposition of docket fee. The docket fee shall be the only costs assessed in each case for services of the clerk of the district court and the sheriff. The docket fee shall be disbursed in accordance with K.S.A. 20-362 and amendments thereto.
“(d) Additional court costs. Other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute. Other fees shall include, but not be limited to, witness fees, appraisers’ fees, fees for service of process outside the state, fees for depositions, alternative dispute resolution fees, transcripts and publication, attorneys’ fees, court costs from other courts and any other fees and expenses required by statute. All additional court costs shall be taxed and billed against the parties as directed by the court. No sheriff in this state shall charge any district court in this state a fee or mileage for serving any paper or process.”
Note: Additional statutory charges bring the docketing fee to $65.00.
K.S.A. 1992 Supp. 28-170 provides, in pertinent part:
“(a) The docket fee prescribed by K.S.A. 60-2Q01 and amendments thereto shall be the only costs assessed for services of the clerk of the distinct court and the sheriff in any case filed under chapter 60 of the Kansas Statutes Annotated.”
The only basis asserted to justify the payment of a separate $65.00 filing fee for each parcel included in the petition was that the administrative judge required it.
Clearly, the above-cited statutes contemplate that one $65.00 docket fee is required for the filing or docketing of a case. The petitions seeking tax foreclosure on the Caywood property (case No. 91 C 202) and on the Currie property (case No. 92 C 302) each constituted one case despite the fact that tax foreclosure was sought on multiple parcels in each petition. There is nothing in the statutes relating to tax foreclosure proceedings indicating a separate docketing fee is to be charged to each parcel. K.S.A. 1992 Supp. 79-2801 speaks of “filing a petition” and that
“[t]he petition shall request that the court determine the amount of taxes, charges, interest and penalties chargeable to each particular tract, lot or piece of real estate, the name of the owner or party having any interest therein and that the court adjudge and decree the amount due to be a first and prior lien upon the real estate and that the same be sold at public sale for the satisfaction of the lien, costs, charges and expenses of the proceedings and sale and other necessary relief. The petition shall be filed in duplicate and a copy delivered by the clerk to the county treasurer, who thereafter shall accept no payments of taxes upon the real estate included in the petition except as provided by K.S.A. 79-2801 to 79-2810, inclusive, and amendments thereto.”
K.S.A. 79-2802 provides:
“In such action the county attorney or county counselor may join as many parties as defendants as there are parties interested in the real estate described in the petition, whether such defendants are jointly interested in the property described or not, and may unite in one action all persons having or claiming to have any interest in any of the real estate described; but the court in its decree shall ascertain and determine the amount of taxes, charges, penalties and interest to the date of the filing of the petition, chargeable to each particular tract, lot, or piece of real estate, and in the decree state the name or names of the particular defendant or defendants who has or who appears to have any interest in the tract, lot or piece of real estate upon which a lien is fixed by order of the court.”
The amount of the docket or filing fee required to be paid to commence an action in the district court is strictly a matter of statutory law, is uniform throughout the state, and may not be altered by local court rule or judicial fiat. The filing of each of the two petitions herein required a $65.00 filing or docketing fee per petition. We conclude that all filing or docketing fees paid in excess of that were improper and should not have been included in the allocation of costs. The district court erred in holding otherwise. On remand, cost allocation should be recomputed as to the Caywood and Currie properties, excluding the improper filing fee costs.
Ms. Caywood also cross-appeals on the issue of whether the district court improperly included excessive title search costs in its cost allocation. In her case the Board paid for 284 title searches at $59.50 each ($16,898) and 49 “recertifications” at $24.50 each ($1,200.50). Ms. Caywood’s property was not involved in any recertification. As only 208 parcels were included in the tax foreclosure petition, Ms. Caywood contends the title search costs included in the cost allocation were excessive.
Apparently there were 284 properties in the tax delinquent group for which foreclosure was contemplated. Some were deleted prior to the filing of the petition by virtue of the delinquent taxes being paid and for other reasons. In any event, only 208 parcels were considered ripe for foreclosure at the time of the filing of the petition.
On the showing herein, we cannot conclude that the district court erred in including the entire title search costs incurred in its allocation of costs.
This brings us to the only issue relative to appellee Brown. The Board contends that the district court erred in setting aside the sale of parcel No. 28 (Ms. Brown’s property) on the basis of insufficiency of service. Service by publication was had as to Ms. Brown. The court held that Ms. Brown “was at all times in possession of the property and resides there, and she’s entitled to notice.” Ms. Brown was given 30 days to pay the delinquent taxes, costs, and penalty, or the property would be resold.
K.S.A. 1992 Supp. 60-307(a)(3) provides that service by publication may be made
“[i]n actions which relate to or the subject of which is real or personal property in this state, if any defendant has or claims a lien or interest, vested or contingent, in the property, or the relief demanded consists wholly or partly in excluding the defendant from any interest in the property, or in actions for partition or for foreclosure of a lien, if the defendant is a nonresident of the state or a foreign corporation or if the party with due diligence is unable to make service of summons upon the defendant within the state.”
Once the plaintiff files an affidavit setting forth the rationale for seeking service by publication, it may proceed with service by publication. K.S.A. 1992 Supp. 60-307(c)(4). Within seven days after the first publication, a copy of the publication notice must be sent to the defendant. K.S.A. 1992 Supp. 60-307(e). Plaintiff followed those procedural steps.
The Board contends the “due diligence” requirement of K.S.A. 1992 Supp. 60-307(a)(3) was met. A RSTD (Residential Service— Tacked to Door) summons return was filed showing the summons was tacked to the door of the property on April 28, 1992. The summons gave no information as to prior attempts, but the Board’s counsel stated this procedure is not utilized until two prior attempts at personal service had been made. No officer testified to any prior attempts. Service by certified mail was not attempted.
After the sale, Ms. Brown made a special appearance seeking to set aside the sale on the basis of lack of service of process. At the hearing thereon the following information was presented. The property had an appraised value of $31,800.00. The amount of delinquent taxes and interest against it was in the amount of $3,253.99. The parcel sold for $6,000.00 at the sale. Ms. Brown had lived at the residence for 30 years. She was in her 80’s and had difficulty getting around. Her position is that her first knowledge of the tax foreclosure proceedings occurred when she was served with an eviction notice.
Inherent in the trial court’s holding is a finding the Board did not exercise due diligence in making service of summons upon Ms. Brown. This is a negative finding. On appeal a negative finding will not be disturbed absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. EF Hutton & Co. v. Heim, 236 Kan. 603, 610, 694 P.2d 445 (1985).
We find no error or abuse of discretion in the district court’s order setting aside the sale as to Ms. Brown’s property (parcel No. 28).
The judgment in each case is affirmed in part and reversed in part, and the cases are remanded for further proceedings. | [
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On October 30, 1992, this court placed respondent on probation for a period of one year, subject to the following conditions: (1) that his legal practice be supervised by attorney Kristin Hutchison; (2) that he continue to pay restitution to those injured by his professional misconduct and that he make periodic reports on the status of restitution to the Disciplinary Administrator’s office; and (3) that he continue to receive treatment for his sleep apnea condition from qualified professionals. In re Meyer, 251 Kan. 838, 840 P.2d 522 (1992).
This court finds that the Disciplinary Administrator has filed a probation report verifying that respondent has fully complied with all conditions imposed upon him by this court and recommending that respondent be discharged from probation.
Therefore, this court, having reviewed the files and recommendations of the Office of the Disciplinary Administrator, finds that respondent Darrell D. Meyer should be discharged from probation.
It Is Therefore Ordered that respondent is discharged from probation and from any further obligation in this matter and that this proceeding is closed.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to respondent. | [
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The opinion of the court was delivered by
Abbott, J.:
This appeal involves the trial court’s dismissal of a partition action because the land was subject to a real estate agreement which contained a “right of first refusal” provision. The Court of Appeals affirmed the trial court in an unpublished opinion filed May 14, 1993.
The facts are undisputed. The property was purchased in 1962 by Theodore Gore, Robert M. Beren, and Theodore I. Leben. They entered into an agreement effecting the cotenancy. The agreement contained a “preemptive right” or “right of first refusal” provision which is now the center of controversy. The provision provides:
“The parties hereto further agree that should any party hereto desire to sell all or any part of his interests in either or both of said parcels of land, he shall promptly give written notice to the other co-tenants with full and complete information concerning the terms of the proposed sale, and the other co-tenants shall then have an option and prior right for a period of twenty (20) days after the receipt of said written notice to purchase the interest of the party desiring to sell said interest on the same terms and conditions which the selling party proposes to sell. There shall be no preferential right to purchase where any co-tenant wishes to mortgage his interest or to dispose of his interest by sale or transfer thereof to a corporation in which said co-tenant owns or controls a majority stock interest. Any sale contemplated by this paragraph shall refer to and mean a bona fide sale.
“This agreement is binding upon the parties hereto and their respective heirs, administrators, executors and personal representatives.”
Theodore Gore is deceased. His interest in the property is now owned by his widow, Rosalyn W. Gore, the plaintiff in this case. Theodore I. Leben’s interest was transferred to T.J. Land & Cattle Company, a corporation. Mid Kansas Jewish Federation, Inc., also owns an undivided interest in three of the seven parcels of land subject to the agreement. The defendant, Robert M. Beren, is the only remaining signatory of the agreement who owns an undivided interest in the property.
On July 16, 1991, representatives of the Gore and Leben interests offered to purchase Beren’s interest in the property or to sell to Beren their interests in the property. Beren declined to buy or sell in accordance with the terms stated in the July 16, 1991, letter.
Rosalyn W. Gore then filed this partition action. Beren answered that the 1962 agreement waived, modified, or revoked the right to partition the subject real estate. Gore named the other cotenants as defendants. T.J. Land & Cattle Company and Mid Kansas Jewish Federation, Inc., have not entered an appearance in the case and are not participating in this appeal.
The case was submitted to the trial court for decision based on a stipulation of'facts and trial briefs. The trial court found:
“1. The 1962 Agreement (Agreement) executed by Theodore Gore, Robert M. Beren, and Theodore I. Leben created a right in these parties commonly referred to as a ‘right of first refusal’ or a ‘preemptive right,’ which requires any party to the Agreement who desires to sell his undivided interest to:
“a. obtain a bona fide offer from a third party to buy the undivided interest on specific terms the third party is ready, willing and able to comply with;
“b. promptly give written notice of the proposed sale to the other parties to the Agreement;
“c. include in the written notice full and complete information of the terms and conditions of the sale;
“d. allow the other parties to the Agreement twenty days to purchase the undivided interest on the same terms and conditions the third party is willing to give.
“2. By entering into the Agreement, the original parties thereto waived their right to partition the property until such time as they complied with the terms of the Agreement summarized in paragraph 1 above.
“3. The Agreement is valid and binding on the original parties to the Agreement and is enforceable by any original party against any other original party and any successors in interest to such original party. Consequently, the Agreement is binding on plaintiff who has succeeded to the interest of her husband, Theodore Gore.
“4. The July 1991 letter relied on by plaintiff fails to comply with the requirements of the Agreement summarized in paragraph 1 above.
“Wherefore, having found that plaintiff’s predecessor in interest waived his right to partition to plaintiff’s undivided interest in the subject property without first complying with the Agreement and that plaintiff’s July 1991 letter does not constitute compliance with such Agreement, the Court holds that plaintiff has no right to bring the current action seeking partition and that such partition action must be dismissed.”
On appeal, Gore contended that the preemptive right (right of first refusal) provision does not absolutely waive the right to partition and, alternatively, that the provision violates the rule against perpetuities. The Court of Appeals did not address the waiver of partition issue but affirmed the trial court, stating:
“In the present case, the trial court interpreted the agreement in such a way that it does not violate the rule against perpetuities. The trial court held the contract is enforceable only by the original parties to the agreement — all lives in being.
“We are unable to hold that no reasonable person would rule as the trial court did.
“The trial court interpreted the contract, feasibly, to avoid application of the rule against perpetuities. It did so reasonably and properly.”
Gore sought review by this court, which we granted.
Gore argued at trial and in her brief in the Court of Appeals that the preemptive right provision of the Agreement did not absolutely waive her right to partition. The trial court found that Gore’s predecessor in interest did waive the right to partition until such time as Gore received a bona fide offer from a third party and provided notice of such offer to Beren, giving Beren the opportunity to exercise his right of first refusal.
This court has addressed the scope of rights a property owner has, including the right to partition.
“Partition provides a method whereby two or more persons who own property together may put an end to the multiple ownership, so that each may own a separate portion of the property or, if a division in kind is not feasible, the property may be sold and each owner given an appropriate share of the proceeds. It is said to be a right much favored in the law because it secures peace, promotes industry and enterprise, and avoids compelling unwilling persons to use their property in common. 59 Am. Jur. 2d, Partition, sec. 3, p. 773. The right of partition is said to be an incident of common ownership. 68 C.J.S., Partition, sec. 21, p. 33.” Miller v. Miller, 222 Kan. 317, 320, 564 P.2d 524 (1977).
In Miller, 222 Kan. 317, Syl. ¶ 4, we stated:
“The right of partition is considered an incident of common ownership. It is based on the equitable doctrine that it is better to have the control of property in one person than in several who may entertain divergent views with respect to its proper control and management. The general rule therefore is that all property capable of being held in cotenancy is subject to partition by judicial proceedings, the partition being either in kind or by appraisal and sale.”
See Mulsow v. Gerber Energy Corp., 237 Kan. 58, 61, 697 P.2d 1269 (1985); Hall v. Hamilton, 233 Kan. 880, 882, 667 P.2d 350 (1983).
Beren argues that in the agreement among Beren, Leben, and Theodore Gore the right to partition was waived by implication unless the party seeking partition first obtains a bona fide offer from a third party and then offers to sell his or her interest to the other parties to the agreement. Conversely, Gore argues that, although a preemptive right provision in a contract may waive the right to partition, “such a preemptive right provision is only a conditional waiver of the partition right, and not an absolute waiver,” suggesting that by offering to sell her interest to Beren she complied with the Agreement and her right to partition was restored. Neither party disputes that the terms of the agreement entered into by Theodore Gore are binding on Gore as her husband’s successor in interest. See Ortmann v. Kraemer, 190 Kan. 716, 719, 378 P.2d 26 (1963).
“[I]t is well established that a cotenant may waive his right of partition by an express agreement.” Ortmann, 190 Kan. at 720.
“Although partition is a right much favored, nevertheless it has generally been held that a cotenant is not entitled to partition where he has entered into an agreement not to partition. The agreement acts as an estoppel, or constitutes a waiver of the right to partition. . . . Not only is the cotenant who entered into the agreement not to partition bound thereby, but the courts have recognized that a cotenant deriving title through an instrument containing such an agreement is also bound.” 59A Am. Jur. 2d, Partition § 58, p. 43.
Waiver of the right to partition may also be implied.
“The courts have generally recognized that the agreement not to partition may be implied, as well as express. An agreement not to partition is implied where the purpose of the transaction would be defeated by partition. For instance, an agreement giving cotenants rights of first refusal implies an agreement not to bring a partition action in lieu of a sale to the cotenants.” 59A Am. Jur. 2d, Partition § 61, p. 45.
But see Drachenberg v. Drachenberg, 142 N.J. Eq. 127, 134, 58 A.2d 861 (1948) (“The right of partition between co-tenants is an absolute right which should not be denied in the absence of an explicit agreement not to resort to partition.”).
Neither this court nor our Court of Appeals has specifically held that an agreement not to partition may be implied; however, this court has implied that such is the case. See Home-Stake Production Co. v. Tri-State Pipe Co., 197 Kan. 163, 169, 415 P.2d 377 (1966) (“We find nothing in the agreement diluting the right to partition and nothing which can be considered as impliedly prohibiting it.”).
The parties here cite numerous cases from other jurisdictions which have held that a preemptive right or right of first refusal provision impliedly or expressly waives the right to partition until the provision is complied with. See Harrison v. Domergue, 274 Cal. App. 2d 19, 21, 78 Cal. Rptr. 797 (1969) (“An agreement giving rights of first refusal to the other tenants implies an agreement not to bring a partition action in lieu of a sale to the cotenants.”); Schwartz v. Shapiro, 229 Cal. App. 2d 238, 253, 40 Cal. Rptr. 189 (1964) (“[T]he absolute right to partition has been modified by [a] writing to the extent that before partition can be had the selling owner must first offer his interest to the co-owner. Upon the non-selling owner’s refusal or failure to exercise his right to purchase within a reasonable time, the seller has discharged his obligation to his co-owner and he may proceed with partition.”); Rhodes v. Lane, 202 Ga. 608, 610, 44 S.E.2d 114 (1947) (agreement not to sell or otherwise dispose of property jointly held without first offering it to the cotenant barred partition until the property was offered to and refused by the co-tenant); Bessen v. Glatt, 170 App. Div. 2d 924, 925, 566 N.Y. S.2d 750 (1991) (“Partition is not warranted where, as here, tenants in common expressly agree not to partition the property until the nonselling party has the opportunity to purchase the sellers’ interest.”); Tramontano v. Catalano, 23 App. Div. 2d 894, 260 N.Y.S.2d 269 (1965) (“[T]he parties’ agreement that neither set of owners would sell their one-half interest without first offering it to the other set of owners encompassed an agreement not to partition except upon that condition.”); Inter-City Properties, Inc. v. Gibbs, 560 S.W.2d 503 (Tex Civ. App. 1977) (agreement between three cotenants granting, among other provisions, preferential rights to purchase constituted waiver of right to partition); Sibley v. Hill, 331 S.W.2d 227, 229 (Tex Civ. App. 1960) (operating agreement which included a preferential right to purchase clause contracted away the absolute right of partition).
Even though the .right to partition may be implicitly waived,
“[i]t is not true, however, that each and every covenant or provision relating to property held in common carries with it the implication that no partition shall be had; and consequently it is necessary in each case to examine the particular contract involved and from the provisions thereof determine whether or not the parties impliedly contracted against partition.” 68 C.J.S., Partition § 44, p. 67.
The agreement entered into among Beren, Leben, and Theodore Gore did not expressly waive the right to partition. It does, however, appear that Beren, Leben, and Theodore Gore impliedly waived the right to partition by entering into the agreement. The relevant portion of the agreement states:
“The parties hereto further agree that should any party hereto desire to sell all or any part of his interests in either or both of said parcels of land, he shall promptly give written notice to the other cotenants with full and complete information concerning the terms of the proposed sale, and the other cotenants shall then have an option and prior right for a period of twenty (20) days after the receipt of said written notice to purchase the interest of the party desiring to sell said interest on the same terms and condition which the selling party proposed to sell. There shall be no preferential right to purchase where any cotenant wishes to mortgage his interest or to dispose of his interest by sale or transfer thereof to a corporation in which said cotenant owns or controls a majority stock interest. Any sale contemplated by this paragraph shall refer to and mean a bona fide sale.”
The trial court held that “[b]y entering into the Agreement, the original parties thereto waived their right to partition the property until such time as they complied with the terms of the Agreement [concerning the preemptive right].” Therefore, the trial court held that Beren, Leben, and Theodore Gore impliedly waived the right to partition by entering into the Agreement.
The cases cited by t-he parties hold that waiver of the right to partition may be implied. However, in most of the cited cases the waiver of the right to partition is only temporary and only in lieu of offering to sell the property to the cotenants; upon offering to sell to the cotenants in accordance with the agreement and the cotenants’ refusal to exercise the preemptive right, the right to partition is restored. An implied waiver is only temporary; therefore, after meeting certain conditions the right to partition is restored.
Because implied waiver of the right to partition is based on interpretation of a contract or agreement between co tenants, whether an agreement constitutes an implied waiver of the right to partition and the extent of that implied waiver or the condition for restoring the right to partition should be determined on a case-by-case basis. See, e.g., 59A Am. Jur. 2d, Partition § 61; 68 C.J.S., Partition § 44, p. 67. Thus, not every instance where cotenants agree to a preemptive right or right of first refusal provision is automatically deemed to imply waiver of the right to partition. Because the right to partition enjoys a favored status in the law and is “based on the equitable doctrine that it is better to have the control of property in one person than in several who may entertain divergent views with respect to its proper control and management,” Miller, 222 Kan. 317, Syl. ¶ 4, any agreement which purports to waive the right to partition should be strictly construed.
Gore and Beren assert different interpretations of the Agreement. Beren contends that the preemptive right provision requires Gore to obtain a bona fide offer from a third party before offering her interest to Beren and before the right to partition may be invoked. The trial court adopted this construction. Gore, on the other hand, contends that no offer from a third party is required and that, by making an offer herself to her co tenants, she has complied with the provision and therefore is now entitled to invoke the right to partition.
The rules of contract interpretation are well established: “The interpretation of a written contract that is free from ambiguity is a judicial function and does not require oral testimony to determine the contract’s meaning. An ambiguity in a contract does not appear until two or more meanings can be construed from the contract provisions.” Albers v. Nelson, 248 Kan. 575, Syl. ¶ 1, 809 P.2d 1194 (1991).
“Whether an instrument is ambiguous is a matter of law to be decided by the court. As a general rule, if the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it generally uncertain which one of two or more meanings is the proper meaning.” Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 2, 829 P.2d 884 (1992).
Here, neither party contends the preemptive right is ambiguous.
“Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by an appellate court.” Simon, 250 Kan. 676, Syl. ¶ 3. “In placing a construction on a written instrument, reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided.” Arnold v. S.J.L. of Kansas Corp., 249 Kan. 746, Syl. ¶ 1, 822 P.2d 64 (1991); Barnhart v. McKinney, 235 Kan. 511, Syl. ¶ 7, 682 P.2d 112 (1984).
We are not dealing with neophytes here. The parties to this agreement were sophisticated businessmen experienced in complicated business transactions involving large sums of money. They were not strangers to written contracts. This particular contract, like most contracts that end in litigation, is not as clear as it could and should be concerning what the parties intended. Obviously the parties knew and understood a buy-sell provision. The contract does not contain a buy-sell agreement. Thus, the parties do not appear to have been concerned with having each other as cotenants. The concern, and what the parties wanted to control, was having a third person or entity become a cotenant with power to force a sale either by a buy-sell provision or by partition. This property was purchased in what was then (1962) a largely unimproved rural setting, and to receive maximum value it would be necessary to hold the land for a considerable period of time.
Thus, we reach the same conclusion the trial court reached. The parties have by implication waived the right to partition the property until the preemptive right provision has been complied with as set forth earlier in this opinion.
Gore next contends that the preemptive right provision in the Agreement violates the rule against perpetuities. She argues the Court of Appeals used the wrong standard of review.
The Court of Appeals used language that is subject to more than one construction. The language “no reasonable person” implies that the Court of Appeals used an abuse of discretion standard. However, interpretation of a contract or agreement is a question of law and this court’s review of questions of law is unlimited. An appellate court is not bound by a trial court’s construction of a written contract. See Simon, 250 Kan. 676, Syl. ¶ 3. The Court of Appeals is aware of the correct standard, and we believe it used the correct standard despite the ambiguous language in the opinion.
“The rule against perpetuities precludes the creation of any future interest in property which does not necessarily vest within twenty-one years after a life or lives presently in being, plus the period of gestation, where gestation is in fact taking place.” Barnhart, 235 Kan. 511, Syl. ¶ 3. See Singer Company v. Makad, Inc., 213 Kan. 725, 729, 518 P.2d 493 (1974); In re Estate of Freeman, 195 Kan. 190, Syl. ¶ 1, 404 P.2d 222 (1965). “In ruling upon whether a future interest violates the rule against perpe-tuities, speculation concerning the probabilities of various subsequent developments is not indulged in by the courts, but it is a sufficient violation of the rule if an interest might possibly vest beyond the period permitted.” Freeman, 195 Kan. 190, Syl. ¶ 2.
The policy considerations behind the rule against perpetuities are clear.
“The rale against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as a public evil.” First Nat’l Bank & Trust Co. v. Sidwell Corp., 234 Kan. 867, Syl. ¶ 8, 678 P.2d 118 (1984).
The rule was first developed “to prevent the practice of tying up family property for generations and thereby creating unreasonable restraints upon the alienation of property.” Barnhart, 235 Kan. at 517.
Kansas has long recognized that the creation of property interests is subject to the rule against perpetuities. Freeman, 195 Kan. 190. Agreements creating an option or a preemptive right to purchase real estate constitute property interests which are subject to the rule against perpetuities. Barnhart, 235 Kan. at 516-17; Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124 (1918). However, modern courts have recognized that the rule bears little relation to modern business practices and thus have limited application of the rule where possible, especially in commercial contexts. See Singer Company, 213 Kan. 725, Syl. ¶ 4; Barnhart, 235 Kan. at 517. “A document should be interpreted where feasible to avoid the conclusion that it violates the rule against perpetuities.” Singer Company, 213 Kan. 725, Syl. ¶ 6; Barnhart, 235 Kan. at 520.
The rule against perpetuities has been codified and somewhat modified in Kansas by K.S.A. 1992 Supp. 59-3401 et seq., known as the Uniform Statutory Rule Against Perpetuities. K.S.A. 1992 Supp. 59-3401 adds to the common-law “life in being plus twenty-one years” requirement that alternatively, the interest must vest or terminate within 90 years after its creation. If either of these alternatives is satisfied, the future interest does not violate the rule against perpetuities. The uniform rule supersedes the common-law rule against perpetuities. K.S.A. 1992 Supp. 59-3408. However, the uniform rule applies only to nonvested property interests which are “created on or after the effective date of this act.” K.S.A. 1992 Supp. 59-3405(a). Because the property interest involved in the case at bar was created in 1962 by the Agreement entered into among Theodore Gore, Leben, and Beren, the uniform rule does not apply.
Gore argues that the Agreement is binding upon the parties and their successors in interest and therefore the preemptive right is not personal to the parties. She contends that if a party or his successor chooses never to sell his interest in the property, the preemptive right will never vest. Alternatively, even if a party does decide to sell his interest, he does not have an absolute, uncontrolled right to sell the property as he sees fit, and thus the provision constitutes an unreasonable restraint on alienation. Either analysis, Gore contends, shows that the preemptive right provision violates the rule against perpetuities. Gore relies on four Kansas cases dating back to 1918 to show that the preemptive right provision here is not personal to the original parties but rather inures to the benefit of their successors; hence, the provision must fail. Those cases will be discussed later in this decision.
Beren, on the other hand, relies on the recent trend tempering the rule and limiting its application. He notes that a contract should be interpreted to avoid violating the rule against perpe-tuities if feasible, and he contends that it is indeed feasible' to so construe the Agreement here. Beren relies on a 1969 California case which construed language identical to the language in the Agreement here and held that the contract there was binding upon the original parties and their successors but was only enforceable by the original parties and so did not violate the rule. Beren discusses the same Kansas cases as Gore but reaches a different conclusion, asserting that the preemptive right provision here is personal to the original parties and therefore expires at their deaths. Beren also relies on cases from other jurisdictions to suggest that the rule against perpetuities should not even apply to preemptive right provisions. In any event, Beren argues, there is little restraint on alienation and the provision does not violate the rule against perpetuities.
Kansas appellate courts have decided four cases which are similar to the case at bar.
In Henderson v. Bell, 103 Kan. 422, which Gore argues is controlling, this court construed what was referred to by the court as an “option” but was actually a “preemptive right.”
“A right of pre-emption differs from an option in that a pre-emption does not give the pre-emptioner the power to compel an unwilling owner to sell, but merely requires the owner, when and if he decides to sell to offer the property first to the person "entitled to the pre-emption at the stipulated price, and upon receiving such an offer, the pre-emptioner may elect whether he will buy, and if he elects not to buy, then the owner of the property may sell to a third party.” Anderson v. Armour & Company, 205 Kan. 801, Syl. ¶ 1, 473 P.2d 84 (1970).
See Miller v. Alexander, 13 Kan. App. 2d 543, Syl. ¶ 8, 775 P.2d 198, rev. denied 245 Kan. 785 (1989).
In Henderson, a contract provided:
“ ‘[S]hould first parties elect to sell the following 40 acres now occupied by them . . . the second parties shall have the right to purchase said last mentioned 40 at the agreed price of $65 an acre. It is further agreed that if said parties elect to sell ... at any time in the future, the first parties shall have the right to purchase same at the agreed price of $65 an acre, provided first parties will also buy the balance of the above described land at the agreed price of $40 an acre.’ ” 103 Kan. at 423-24.
This court stated that, under the contract, the first parties were precluded from selling their property to any person unless they first offered it to the second parties or “to those holding under the contract.” 103 Kan. at 424. This court further stated, “When sold under the contract, the property must be sold at $65 an acre, although at that time it may be worth $1,000 an acre. [The first party] does not have an absolute, uncontrolled right to sell the property at any time that he may see fit.” 103 Kan. at 424. This court held that the second parties “and those holding under them, either as assignees or heirs, would hold a right to obtain an interest in the property running for an indefinite period of time. That right would be held in violation of the rule against perpetuities.” 103 Kan. at 424-25.
The Henderson case follows the majority rule concerning restraints on alienation Vvhich violate the rule against perpetuities where the right of preemption involves the right to purchase at a fixed price. When the price is fixed, the alienability of the land is affected. A price reflecting fair market value, such as a bona fide offer from a third party as is required by the agreement here, does not affect alienability. As a result, Henderson is of little use in deciding this case.
Our Court of Appeals construed an option and a first right of refusal in Smerchek v. Hamilton, 4 Kan. App. 2d 346, 606 P.2d 491 (1980). The contract provided for a right of first refusal during the plaintiff’s life and for an option at plaintiff’s death, but neither was exercisable after defendants received notice of plaintiff’s death and failed to exercise their option within 30 days, the time set by the contract. The court held that notice of plaintiff’s death must be given within a “reasonable time,” which would be “well within twenty-one years of plaintiffs death.” 4 Kan. App. 2d at 353. Thus, there was no violation of the rule against perpetuities.
In Crown v. French, 7 Kan. App. 2d 672, 646 P.2d 1158 (1982), the Kansas Court of Appeals again addressed a right of preemption. There, “plaintiffs, for themselves, their heirs, executors and assigns, granted to ‘Mary Ann French, a single woman,’ defendant, the exclusive right to purchase their residence property” on certain terms and conditions. 7 Kan. App. 2d at 673. The trial court had held that the contract “is binding on plaintiffs and their heirs but is not binding on defendant’s heirs. In other words, the defendant has an option to purchase during her lifetime only,” and the Court of Appeals affirmed this holding because “clearly the grant to defendant was an ‘exclusive’ grant to her alone.” 7 Kan. App. 2d at 673. Thus, the preemptive right was personal to Mary Ann French and expired on her death, so there was no violation of the rule against perpetuities. The rule of law was aptly stated:
“The validity of a preemptive right under the rule against perpetuities depends upon whether the right is found to be personal to either or both of the parties involved so that the right must necessarily expire during the lifetime of one of the parties. Where a preemptive right is personal to the prospective buyer and does not extend to his or her heirs or assigns, the equitable interest would necessarily vest during his or her lifetime.” 7 Kan. App. 2d 672, Syl. ¶ 2.
Finally, this court addressed whether a right of preemption violated the rule against perpetuities in Barnhart, 235 Kan. 511, which Beren argues is controlling. There, this court considered application of the rule against perpetuities in a contract which conveyed property to Purchasers (McGrew) and which included a provision that “5 acres are to be retained by Sellers [the Barn-harts] as a site for a house trailer with the understanding that when Sellers decide to sell or vacate said 5 acres they will first offer it to Purchasers at a price not to exceed $200.00 per acre plus the cost of any permanent improvements.” A further provision stated, “It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.” 235 Kan. at 512-13. After disposing of a portion of the property, the purchasers later sold the remaining property to the McKinneys subject to the contract between McGrew and the Barnharts. Over 10 years later, Mrs. Barnhart decided to sell the five acres she retained, and she directed a McGrew agent to first offer the property to the McKinneys in accordance with the contract. The McKinneys declined due to a dispute about the cost of the improvements. The McKinneys made a counteroffer, which Mrs. Barnhart refused. Mrs. Barnhart filed an action to quiet title, and the McKinneys counterclaimed, seeking to enforce their contractual rights to purchase the five acres. Mrs. Barnhart argued that the provision in the contract between Barn-harts and McGrew violated the rule against perpetuities. This court noted that the Barnhart-McGrew contract created a preemptive right. Acknowledging the recent trend limiting application of the rule against perpetuities to commercial transactions, this court then posed the dispositive question: “Was the right to delay the sale of the property or the vacation of the property one which could be passed on to the heirs and assigns of the Barnharts or was it personal to them?” Holding that the right was personal to the Barnharts, this court determined that McGrew’s preemptive right would be triggered upon the Barn-harts’ sale or vacation of the property; hence, McGrew’s (and therefore the McKinneys’) preemptive right would arise within a period not violative of the rule against perpetuities. 235 Kan. at 519. We stated that “the intent of the parties appears clear and in accordance with our prior decisions that whenever possible a document should be construed to uphold its validity rather than defeat it, we hold the . . . contract under the specific facts of this case does not violate the rule against perpetuities.” 235 Kan. at 522.
We are persuaded to follow Harrison v. Domergue, 274 Cal. App. 2d 19, 78 Cal. Rptr. 797 (1969), where the California Court of Appeals evaluated a preemptive right agreement which was “ bunding upon all of the parties hereto, their heirs, executors, administrators and assigns, and shall be considered as a covenant running with the land.’ ” 274 Cal. App. 2d at 21. There, a successor to an original party to the agreement sought to assert waiver as a defense against another successor’s partition action. No original party was remaining. The successor seeking partition asserted that the preemptive right agreement violated the rule against perpetuities. The court there distinguished the benefit of a covenant from the burden of a covenant and noted that “[a] restrictive covenant is to be construed strictly; where it is subject to more than one interpretation, that consistent with unencumbered use and alienation of property is to be preferred.” 274 Cal. App. 2d at 23. The court stated:
“This agreement refers o'nly to the binding effect on successors; there is no express provision that the benefit runs to successor owners. . . . [T]he property could ... be fragmented among many persons not party to the original agreement; something of this sort has already occurred. If none of the fractional interests of present or future owners could be sold without making to all of the successor owners the option offer required by the agreement, the resulting burden on any one party would be greater than that accepted by the original parties. . . . The apparent purpose of the original, parties — to retain for themselves control of the admission of new co-owners — would not be served by extending the operation of the agreement far into the future. That purpose would continue to have validity only as long as the original parties, or one of them, lived and continued in ownership. So long as the covenant was binding upon successors at the instance of any of the still-living original parties, its purpose would be fulfilled.” 274 Cal. App. 2d at 22-23.
Thus, the court held that the agreement was enforceable only by the original parties but binding upon the original parties and their successors. Because the agreement could not be enforced after the death of all original parties, it did not violate the rule against perpetuities.
The holding and reasoning of Harrison was recently adopted in HSL Linda Gardens Properties, Ltd. v. Seymour, 163 Ariz. 396, 788 P.2d 129 (Ct. App. 1990). There, the Arizona Court of Appeals held that a right of first refusal agreement was a covenant running with the property and therefore binding on a successor to the agreement. The covenant was enforceable by any of the original parties against successors. Therefore, the court held that “the rule against perpetuities and the policy favoring unencumbered use and alienation of property is satisfied.” 163 Ariz. at 397.
Harrison was also discussed in American Medical International, Inc. v. Feller, 59 Cal. App. 3d 1008, 131 Cal. Rptr. 270 (1976). There, the California Court of Appeals considered an implied waiver of the right to partition. The court noted the Harrison rule that the waiver of the right to partition was binding upon successors but only enforceable by original parties.
We hold that the benefit, i.e., the right of first refusal, in the agreement at issue here is personal to the signatories to the agreement and does not run to successor owners; it ends when the last signatory dies or divests himself of his interest or otherwise waives the right. Thus, the right of preemption in this agreement does not violate the rule against perpetuities.
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The opinion of the court was delivered by
Six, J.:
This case involves the relationships under K.S.A. 1992 Supp. 40-3103(u) between Kansas City Power & Light Company (KCPL), a nonresident self-insurer employer, and James Strange, an employee, arising from their status as codefendants in an automobile negligence action. KCPL owned and self-insured the vehicle Strange was driving when he was involved in an accident. The trial court granted summary judgment for Strange on a cross-claim against him by KCPL, holding that Strange was acting within the scope of his employment and that KCPL had a duty to defend Strange and to pay attorney fees incurred by Strange. The Court of Appeals reversed. Overbaugh v. Strange, 18 Kan. App. 2d 365, 853 P.2d 80 (1993). We granted Strange’s petition for review.
We affirm the result of the Court of Appeals opinion. We modify the opinion’s analysis of the application of K.S.A. 1992 Supp. 40-3104(f) to KCPL. See Strange, 18 Kan. App. 2d at 367.
Facts
The Court of Appeals summarized the facts as follows:
"Strange, while driving a KCPL vehicle, had an accident with plaintiff Robin C. Overbaugh, following which Strange was arrested for driving while under the influence. Strange was later discharged from his employment. KCPL settled with plaintiff, and the only remaining issue is KCPL’s obligation to defend its former employee.
“KCPL is a Missouri corporation and has certificates of self-insurance in both Missouri and Kansas. The accident occurred in Kansas . . . .” 18 Kan. App. 2d at 365-66.
The van Strange was driving was registered in the State of Missouri.
KCPL responded to Overbaugh’s claim, asserting that (1) it was not vicariously liable for Strange’s action because he was acting outside the scope of his employment at the time of the accident and (2) Strange did not have KCPL’s express or implied consent to operate the van at the time of the accident; thus, KCPL was not liable as a self-insurer. Both of these allegations were based on the contention that Strange’s intoxication violated KCPL’s employee conduct rules. Strange’s position with KCPL was as a telephone technician, and his responsibilities involved the installation, repair, and maintenance of telephone systems at KCPL facilities.
Strange reported to the first assigned job site, performed his assigned work, and left. He failed to report to either the second or third job sites. Strange ate lunch after he left the first job site and then went to an American Legion hall where he spent the remainder of his regular working hours consuming beer and vodka. At some time in the afternoon, Strange left the Legion hall. He testified it was his intent to return the company van to the KCPL service center and drive his car home. During the drive to the service center, Strange collided with Overbaugh’s car, which was stopped in front of him.
KCPL moved for summary judgment on the issues of vicarious liability and self-insurer coverage. Strange filed a motion for partial summary judgment on the same issues and sought a ruling that KCPL had a duty, as self-insurer, to defend Strange and pay his attorney fees.
After the district court’s adverse ruling, KCPL entered into a settlement agreement with Overbaugh, who is not a party in this appeal, and obtained a release for both KCPL and Strange. A journal entry of partial dismissal was filed which dismissed all claims and issues in the case, with the exception of the question of KCPL’s duty to defend Strange and to pay his attorney fees.
The Kansas Association of Defense Counsel (KADC) and the Kansas Trial Lawyers Association (KTLA) have filed amicus curiae briefs.
Strange does not dispute the facts as set forth by the Court of Appeals. Additionally, he asserts that his personal liability insurer disclaimed insurance coverage for the accident, reasoning that “[t]he involved vehicle does not meet the policy definition of non-owned car; therefore, no coverage will extend.” This uncon-troverted fact was adopted by the trial court.
A Self-Insurer’s Duty to Defend
The Court of Appeals acknowledged that a self-insurer must comply with the provisions of K.S.A. 40-3107, but reasoned that
“[t]lie duty to defend is not imposed by operation of law — it is imposed by agreement. Glenn v. Fleming, 247 Kan. 296, 312, 799 P.2d 79 (1990)
“As a self-insurer, KCPL’s obligations are not necessarily the same as a regular insurance company. The certificate of self-insurance is not a motor vehicle liability policy. See Glens Falls Ins. Co. v. Consolidated Freightways, 242 Cal. App. 2d 774, 51 Cal. Rptr. 789 (1966).” 18 Kan. App. 2d at 367.
The court also explained that
“K.S.A. 1992 Supp. 40-3104(f) defines the responsibilities of a self-insurer. That statute provides that KCPL, if it has more than 25 vehicles registered in its name in Kansas, may qualify as a self-insurer. To do so, the insurance commissioner must be satisfied that KCPL is possessed of the ability to pay any judgment obtained against ‘such person’ (KCPL) arising out of the use of a KCPL-owned vehicle. Failure to pay a judgment against KCPL as self-insurer within 30 days is grounds for cancellation of the certificate of self-insurance.
“In other words, KCPL had no obligation to pay any judgment against Strange. It was obligated only to pay a judgment against itself. Since KCPL had no obligation to pay a judgment against Strange, we fail to see how it could have a duty to defend Strange against a judgment for which it was not responsible.” 18 Kan. App. 2d at 367-68.
The court concluded as follows: “In Kansas, there is no statutory requirement for an insurance company to provide a defense for its insured. The duty to defend is provided contractually.” 18 Kan. App. 2d at 368.
The Court of Appeals placed KCPL under K.S.A. 1992 Supp. 40-3104(f) as a resident self-insurer having 25 or more motor vehicles registered in Kansas. We reason that the correct placement is under K.S.A. 40-3106(b) by reason of the K.S.A. 1992 Supp. 40-3103(u) reference to nonresident self-insurers. K.S.A. 40-3106(b) references the K.S.A. 40-3107(b) requirements. The vehicle in question was registered in Missouri. KCPL is a Missouri corporation. The trial court adopted, as uncontroverted, the fact that KCPL had been approved as a self-insurer under Missouri law for vehicles registered in Missouri.
Strange’s Contentions
Strange argues that Kansas has mandated the assumption of all obligations that exist under a standard automobile liability insurance policy by requiring certification of compliance with K.S.A. 40-3107. According to Strange, assuming the obligations of an insurer under K.S.A. 40-3107 includes the obligation to provide a defense to drivers.
Strange maintains that KCPL was required to provide him with coverage “against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of any such vehicle” under K.S.A. 40-3107(b). He asserts that 40-3107(b) must be interpreted to give the term “loss from” a meaning which includes the defense against claims and the costs and expenses of litigation.
Strange takes the position that the Court of Appeals failed to address the significance of the phrase “loss from” and interpreted the statute in such a way as to render the term meaningless. He believes the Court of Appeals has rewritten that statute to require insurers and self-insurers to insure only “against damages” or only “against the liability imposed by law for damages.”
The Court of Appeals addressed Strange’s reliance on Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P.2d 403 (1973), and Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974), by reasoning that these “cases can be cited for the proposition that where there is coverage, there is a duty to defend. But in both cases, the insurance contract specifically provided for payment of damages and a duty to defend the insured.” Strange, 18 Kan. App. 2d at 367.
Strange counters with the claim that the holding in Spruill was not based upon a contractual obligation to furnish a defense. Strange misreads Spruill. The policy at issue in Spruill did, in fact, contain a defense clause. 212 Kan. at 684. The Spruill language relied on by Strange concerns the scope of a duty to defend arising out of the contractual obligation. We agree with the Court of Appeals’ analysis.
Strange believes cases relating to insurance policies also apply in the self-insurance context. Strange asserts that Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990), does not say that a duty to defend must always be contractual or that it can never arise by operation of law. Although we agree with Strange’s observation concerning our holding in Glenn, we do not agree that contractual concepts arising from insurance law control the disposition of the instant case. We concluded in Glenn, relying on Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 79, 652 P.2d 665 (1982), that any duty of an insurer to settle or appeal arises from its contractual obligation to defend and, if breached, an action based upon that duty sounds in contract, not in tort. 247 Kan. at 312-13.
Strange reasons that the Court of Appeals decision means that even though employees would be indemnified by the employer against claims for damages by third parties, the employees personally would be required to defend themselves against such claims. Strange also observes that, as in the case at bar, employees would be required to defend against claims by the employer that the employee did not have permission to operate the vehicle. He notes that in a case in which an employee’s own insurance fails to provide liability protection in the employment setting, the employee is “left naked” as to the costs associated with defending a claim.
KCPL’s Contentions
KCPL counters by emphasizing that Strange has consistently presented himself as a victim. According to KCPL, nothing could be further from the truth. Instead of performing his job, Strange spent the afternoon in a bar drinking and was driving while under the influence. KCPL observes that Strange’s conduct violated both a KCPL work rule, which Strange knew about, and Kansas law. The scope of employment issue is not before us. KCPL did not appeal the trial court’s ruling. Overbaugh, the claimant, has been paid by KCPL and has released Strange and KCPL. We characterize Strange, on appeal, as a permissive user of the vehicle under K.S.A. 40-3107(b).
KCPL disagrees with Strange’s contention that thousands of Kansas employees will be placed in the position of having to defend themselves in claims arising from the operation of their employers’ motor vehicles. KCPL believes that such a view ignores the statutory scheme for self-insurance and the requirement that a party must own 25 motor vehicles to qualify. According to KCPL, it would be in the self-interest of employers to defend their employees in work-related lawsuits. KCPL asserts that a conflict between an employer and employee could only arise when an employee’s actions, such as Strange’s, are alleged to be outside the scope of his or her employment.
KCPL reasons that because insurance is a matter of contract, parties are free to choose the terms of their contracts. According to KCPL, insurance companies incorporate defense language into policies not because they are required by law to do so, but because such provisions allow them to protect their interests by taking control of the lawsuit or claim made against their insured. KCPL concludes that an insurance company, through its policy contract, agrees to assume certain risks and responsibilities and calculates fees based upon the potential financial obligations that could result from assuming those risks. KCPL takes the position that the self-insurer assumes only those risks and responsibilities imposed by the governing statutes. KCPL claims that it had not promised or represented that it would defend Strange in actions arising from Strange’s negligent operation of KCPL’s vehicle. KCPL advances the view that if there are public policy issues regarding the obligation of self-insurers to defend operators of self-insured vehicles, they should be addressed by the legislature.
K.S.A. 1992 Supp. 40-3103(u), K.S.A. 1992 Supp. 40-3104(1), K.S.A. 40-3106, and K.S.A. 40-3107(b)
Strange reasons that when the Court of Appeals determined that KCPL was not responsible for the judgment against him, it erroneously relied on K.S.A. 1992 Supp. 40-3104(f), which applies only to Kansas self-insurers of Vehicles registered in Kansas. We agree. The KCPL vehicle involved in the accident was registered in Missouri; consequently, K.S.A. 40-3106 applies. K.S.A. 40-3106 requires a nonresident either to qualify as a self-insurer under K.S.A. 1992 Supp. 40-3104(f) or comply with 40-3107. K.S.A. 40-3107 makes the self-insurer liable for judgments against permissive users such as Strange up to the monetary limits imposed. Strange- overlooks the alternative route for nonresident self-insurer operation of motor vehicles in Kansas, i. e., qualifying under K.S.A. 1992 Supp. 40-3104(f). We have no signal from the record as to which statutory alternative KCPL used. Use of K.S.A. 1992 Supp. 40-3104(f) only would require KCPL to pay “any judgment obtained against such person”, i.e., KCPL and not Strange. We think the ambiguity ■ created by the two standards for qualification for a nonresident self-insurer in K.S.A. 40-3106 is resolved in the instant action by K.S.A. 1992 Supp. 40-3103(u), which defines self-insurer as “any person effecting self-insurance pursuant to subsection (f) of K.S.A. 40-3104, and amendments thereto, or any nonresident self-insurer that has filed the form prescribed in subsection (b) of K.S.A. 40-3106, and amendments thereto.”
We find no indication in the record that KCPL filed the 40-3106(b) form; however, KCPL informs us in its brief that “[b]y opting to become a self-insurer, KCPL has represented that it will pay any damages caused by Strange while operating covered vehicles.” We reason that KCPL was subject to K.S.A. 40-3107.
Contentions of Amici Curiae
Amicus KADC supports the contentions of KCPL. In discussing the absence of a common-law basis for imposing a duty to defend, KADC observes that commentators have found that “[t]here is no apparent overriding reason why a liability insurer . . . must be required to provide a defense. . . . [L]¡ability insurance can be provided which only commits the insurer to indemnify the insured for amounts which the insured is legally obligated to pay.” Keeton & Widiss, Insurance Law § 9.4(c)(4) (1988). KADC explains that the Kansas Legislature has acted in the public interest to protect citizens who are injured in an automobile accident and are entitled to damages by requiring assurances of financial responsibility but has not, at the same time, perceived a need to impose a duty to defend on self-insurers.
Amicus KTLA supports the contentions advanced by Strange. KTLA asserts that the Court of Appeals has, in essence, said that the filing of a self-insurance certificate creates no duty on the part of the self-insurer to pay judgments against anyone other than the self-insurer itself. The result is that no duty is imposed to defend permissive users of a self-insurer’s vehicle.
KTLA argues that the Court of Appeals opinion means that
“either the self-insurer is required to comply with or provide coverage as outlined in K.S.A. 40-3107 or else it pays only those judgments entered against it on some type of agency or negligent' entrustment theory. This leaves an employee who is allowed to take the company car home and use it for personal business without insurance when he takes the car to the grocery store. We would submit the self-insurer is then guilty of a class B misdemeanor by permitting the operation of an uninsured motor vehicle in violation of K.S.A. 40-3104.”
Our modification of the Court of Appeals opinion addresses KTLA’s concern. KCPL’s nonresident registration of the vehicle involved brings KCPL under K.S.A. 40-3107.
KTLA advances the view that the legislature intended insurance companies and self-insurers to be treated the same under the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. For example, self-insurers and insurance companies are (1) each required to provide personal injury protection benefits and have identical subrogation rights in regards to payment of the same (K.S.A. 40-3107, K.S.A. 40-3108, and K.S.A. 1992 Supp. 40-3113a); (2) treated the same in regard to the determination of who is to provide the primary benefit coverage (K.S.A. 1992 Supp. 40-3109[b]); and (3) treated the same in that both are required to participate in the assigned claims plan under K.S.A. 1992 Supp. 40-3116. KTLA claims that the intention of the legislature regarding the similar treatment of insurers and self-insurers would be defeated if the nonresident self-insurer is allowed to deny responsibility for judgments against permissive users. We agree. KTLA observes that, practically speaking, the issue of a self-insurer’s duty to defend will rarely arise. Again, we agree.
Discussion
A nonresident owner of a motor vehicle operated on the highways of this state is subject to the provisions of the KAIRA. See State Farm Mut. Auto. Ins. Co. v. Baker, 14 Kan. App. 2d 641, Syl. ¶ 1, 797 P.2d 168, rev. denied 247 Kan. 705 (1990). The accident occurred in Kansas. The Court of Appeals correctly determined that Kansas law was controlling. 18 Kan. App. 2d at 366.
The question of whether a self-insurer has a duty to defend its employees is a more difficult question to resolve. Despite Strange’s arguments to the contrary, the language of the KAIRA does not establish such a duty. K.S.A. 40-3107(b) does not impose the duty to defend an employee on a self-insurer. Strange takes the 40-3107(b) term “against loss” out of context when he claims it provides a basis for requiring the payment of the costs of defense, including an employee’s attorney fees, by a self-insurer. The term “against loss” modifies “the liability imposed by law for damages.” Consequently, the only loss specified under 40-3107(b) is that loss which is from damages, not attorney fees. The requirement that self-insurers must provide 40-3107 coverage is not the same as saying all aspects of a vehicle liability insurance policy must be applied in the self-insurance context. What particular contract language should a court apply?
The KAIRA does not require that self-insurers defend their employees. However, the KAIRA does require nonresident self-insurers to pay judgments entered against employees. See K.S.A. 40-3107(b). The reality of the situation is that employees will be defended. Injured plaintiffs are interested in the “target defendant,” tire self-insured employer, who owns the vehicles. Res-pondeat superior imposes vicarious liability on the employer for the negligent driving of the employee. Self-insured employers exposed to the possibility of liability for a judgment entered against an employee, aware of the economics of the marketplace, will provide a defense.
Cases cited by the parties and additional ones located through our research address the duties of self-insurers under particular state statutes. Many involve disputes between insurance carriers and self-insurers who were attempting to determine who was responsible for what portion of the liability. In such a context, courts often claim that self-insurance is not equivalent to insurance and, therefore, is not subject to insurance statutes or insurance contract clauses governing an excess coverage or an uninsured motorist situation. See, e.g., Lipof v. Florida Power & Light Co., 558 So. 2d 1067, 1068 (Fla. Dist. App. 1990); American Family Mut. Ins. Co. v. Missouri P. & L. Co., 517 S.W.2d 110, 113-14 (Mo. 1974); and Home Indemnity Co. v. Humble Oil & Refining Co., 314 S.W.2d 861, 865-66 (Tex. Civ. App. 1958).
Attorney Fees
The trial court, in awarding Strange attorney fees in connection with the defense against KCPL’s cross-claim, stated:
“Now, the second question is whether the amount is appropriate. And I looked at it first thinking, well, maybe it’s appropriate to have KCP&L pay the cost of defending the underlying claim. But then that’s not logical either. And it seems to me that all of the attorney’s fees that were generated in this case were really as a result of KCP&L not taking the original obligation and taking care of the underlying lawsuit in the first place.”
The Court of Appeals concluded the following concerning the fee issue: “Since KCPL had no duty to defend Strange, it must follow that it is not responsible for Strange’s attorney fees.” 18 Kan. App. 2d at 368. We agree.
Strange maintains that there is no doubt whatsoever that he was, in fact, the prevailing party on the issues KCPL originally raised and litigated in its declaratory judgment action. He also claims that the fact KCPL has not further pursued this issue means that it may not now be allowed to question his right to recover fees and expenses incurred in successfully defending against the declaratory judgment claim.
We acknowledge that Strange’s argument has a certain ring of fairness to it. We reason, however, that a change in policy imposing on self-insurers the duty to defend and to pay attorney fees and other defense costs, under a fact situation such as in the case at bar, must be made by the legislature.
Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 823, 676 P.2d 113 (1984), a case relied on by Strange, applied Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, and K.S.A. 40-256 (attorney fees in actions on insurance policies). The trial court’s award of fees to an insured physician who defended a declaratory judgment action was upheld. The action was brought by a medical malpractice carrier seeking cancellation and construction of a medical malpractice policy. K.S.A. 40-256 does not mention self-insurance. Consequently, neither 40-256 nor Missouri Medical serve as authority for a fee award in the case at bar.
Additionally, the fact that K.S.A. 40-256, as well as certain sections of the KAIRA, e.g., K.S.A. 1992 Supp. 40-3113a(e) (remedy against a tortfeasor; the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person) and K.S.A. 40-3111(b) (attorney entitled to reasonable fee for advising and representing a claimant in a personal injury protection action), demonstrate that the legislature addressed fee issues without providing an insured with fees for defending in a declaratory judgment action. We note one of the more common rules of statutory interpretation, expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. The rule assists in determining legislative intent. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977).
We encounter difficulty in resolving the fee issue in favor of Strange. “Generally, in Kansas, absent an applicable Supreme Court rule or express contractual or statutory authority to the contrary, parties bear the cost of their own attorney fees.” Leiker v. Gafford, 249 Kan. 554, 561, 819 P.2d 655 (1991).
Jurisdiction and Acquiescence
We agree with the Court of Appeals’ analysis of the issues of jurisdiction and acquiescence:
“Initially, Strange argues we lack jurisdiction because KCPL did not timely file its notice of appeal. Strange filed an earlier motion to dismiss on jurisdictional grounds, which we denied.
“The final judgment in this case was filed on July 23, 1992. At that time, two journal entries were filed: One dismissed all claims except the issue of KCPL’s duty to defend and pay Strange’s attorney fees, and the other fixed the amount of those fees and denied KCPL’s motion for reconsideration. KCPL filed its notice of appeal on July 28, 1992, well within the period provided by K.S.A. 1992 Supp. 60-2103.
“Strange also argues KCPL has acquiesced in the trial court’s order with respect to the duty to defend. We disagree.
“After the trial court’s ruling that KCPL had a duty to defend Strange, counsel for KCPL entered his appearance for Strange. But, KCPL notified Strange and his personal attorney that this was being done because of the trial court’s order and that KCPL was reserving the right to appeal the trial court’s ruling, if necessary.
“The above facts do not equal acquiescence. An insurer, and therefore a self-insurer, may assume the defense of an insured under a reservation of rights and later appeal coverage and duty to defend issues. See Henry v. Johnson, 191 Kan. 369, 376, 381 P.2d 538 (1963).” 18 Kan. App. 2d at 366.
Conclusion
The Court of Appeals opinion is affirmed as modified. We have stayed the judicial hand from imposing a duty to defend and a duty to pay the costs of defense, including attorney fees. We have interpreted K.S.A. 1992 Supp. 40-3103(u), K.S.A. 40-3106 and K.S.A. 40-3107 to require nonresident self-insurers to cover the self-insurer “and any other person . . . using any such ve- hide with the expressed or implied consent” of the self-insurer against “liability imposed by law for damages.” K.S.A. 40-3107(b).
We observe that the K.S.A. 40-3106(b) requirement referencing “every insurance company authorized” is in a section of the KAIRA relating to nonresidents. K.S.A. 1992 Supp. 40-3104(f) sets out the requirements for resident self-insurers. Resident and nonresident self-insurers are defined in K.S.A. 1992 Supp. 40-3103(u). A resident self-insurer appears only to be required to pay “any judgment obtained against such person.” K.S.A. 1992 Supp. 40-3104(f). “Failure to pay any judgment against a self-insurer . . . shall constitute reasonable grounds for the cancellation of a certificate of self-insurance.” K.S.A. 1992 Supp. 40-3104(f). We are puzzled by what appears in the KAIRA to be a broader coverage requirement imposed on a nonresident self-insurer than on a resident self-insurer. The legislature may wish to revisit the appropriate KAIRA self-insurer statutes.
Judgment of the Court of Appeals reversing the district court is affirmed as modified. Judgment of the district court is reversed. | [
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The opinion of the court was delivered by
McFarland, J.:
Petitioner George C. Jones, Jr., was found not guilty because of insanity of five counts of embezzlement from a bank (K.S.A. 9-2012), and felony theft (K.S.A. 1979 Supp. 21-3701). The trial was to the district court of McPherson County and was heard on the written stipulations of the parties. In accordance with the provisions of K.S.A. 1979 Supp. 22-3428 the petitioner was committed to the state security hospital for safekeeping and treatment. In this original habeas corpus action the petitioner challenges the constitutionality of the mandatory commitment provision of said statute.
While not raised by the State-respondent, certain procedural and jurisdictional problems are inherent in this action. When such is the case, this court has the duty to determine the same prior to any consideration of the issues on their merits. See In re Lakeview Gardens, Inc., 227 Kan. 161, Syl. ¶8, 605 P.2d 576 (1980). Trial of the criminal cases was had on all five counts (arising from two cases) on May 16, 1979, with the petitioner being found not guilty because of insanity on each count. On June 14, 1979, the following occurred, as set forth in the trial court’s journal entry:
“WHEREUPON, the defendant orally submits the motion previously filed with the Court to determine the applicability of K.S.A. 22-3428, in light of the facts of this action, and for an order ruling that this statute does not apply.
“WHEREUPON, the defendant presents oral argument in support of his motion, and proffers the availability of evidence to be taken by the Court by way of testimony of Dr. Leonard H. Kapelovitz, Dr. Steve Shelton, and Mr. Vernon Nikkei, all of whom would testify that the defendant is not currently dangerous, not in need of safekeeping, and not in need of additional treatment.
“WHEREUPON, the State presents oral argument in opposition to defendant’s motion and contends that the provisions of K.S.A. 22-3428 are mandatory and that introduction of evidence is irrelevant for purposes of determining the commitment following an acquittal on the grounds of insanity!
“WHEREUPON, the Court, having heard the arguments of counsel and being advised in the premises, rules and enters Conclusions of Law as follows:
“1. That evidence as to present sanity of the defendant, proffered by the defendant, is not admissible.
“2. The statute, K.S.A. 22-3428, does not establish a rebuttable presumption as to present insanity.
“3. The Court further rules that the statute establishes a procedure not a presumption.
“4. The Court further rules that the statute does not apply only to trial by jury; and
“5. The Court further rules that K.S.A. 22-3428 is constitutional, does not unreasonably deprive a defendant of his liberty without due process of law nor does it contain a denial of due process or equal protection as guaranteed the defendant by the constitution of the State of Kansas and the United States of America.
“THEREUPON, the Court having entered its conclusions of law, denies defendant’s motion for hearing to determine the applicability of K.S.A. 22-3428.
“THEREUPON, the defendant moves for the proffer of evidence by the taking of live testimony of the witnesses present and available for cross-examination. Whereupon, the State, being duly advised in the premises of the nature of the testimony, stipulates that the facts recited by the attorney for the defendant would comprise the testimony of the witnesses present and available for cross-examination in any hearing in the event defendant’s motion had been granted.
“WHEREUPON, the defendant moves for an order pursuant to K.S.A. 22-3408 [sic] setting reasonable bond during the pendency of an appeal from the denial of defendant’s motion to determine the applicability of K.S.A. 22-3428. Whereupon, the State opposes the motion.
“THEREUPON, the Court, having heard the arguments of counsel and being duly advised in the premises, rules that defendant’s motion for bond is, and shall hereby be, denied.
“THEREUPON, the Court on its own, issues a stay of execution of the commitment of the defendant until July 16, 1979, at 9:00 A.M.
“IT IS SO ORDERED, ADJUDGED AND DECREED.”
On June 14, 1979, the petitioner filed notices of appeal of both criminal cases to the Court of Appeals, where they were subsequently docketed as Cases Nos. 51,219 and 51,220. On July 5, 1979, the Court of Appeals entered the following order:
“The application for release of the appellant in the above two cases is denied for lack of statutory authority of this court to grant it.
“It appearing: (a) that there is no statutory authority for an appeal from an order of commitment under K.S.A. 1978 Supp. 22-3428, and (b) that appellant’s remedy is by way of habeas corpus, with custody pending the proceeding to be covered by K.S.A. 60-1505(c), the appellant is ordered to show cause, if any, on or before July 18, 1979, why these appeals should not be dismissed for lack of jurisdiction.
“It is further ordered that these two cases be consolidated under No. 51,219 for all further proceedings, including any response to this order.”
On July 11,1979, after receipt of the above order of the Court of Appeals, petitioner filed this original action in habeas corpus with the Court of Appeals, which was accompanied by a motion for a temporary order staying commitment.
On July 12, 1979, the Court of Appeals entered the following order:
“You are hereby notified of the following action taken in the above entitled case:
“Petition for Writ of Habeas Corpus.
“State directed to respond to petition on or before August 3, 1979.
“Motion by Petitioner for temporary order staying commitment.
“Granted. Commitment stayed pending final decision and until further order of the court.”
On July 18, 1979, petitioner filed the following response in the now consolidated direct appeals:
“COMES NOW the appellant, George C. Jones, Jr., by and through his attorney of record and submits this, his response to the Order of the Court dated July 5, 1979, directing that he show cause, if any, why the appeals consolidated herein should not be dismissed for lack of jurisdiction.
“1. Appellant knows of no specific statutory authority for an appeal from an order of commitment under K.S.A. 1978 Supp. 22-3428.
“2. That the appeals originally taken herein were premised upon language permitting appeals from final judgments in either criminal actions, K.S.A. 1978 Supp. 22-3601 and 22-3602, and civil actions, K.S.A. 60-2101 and 60-2102.
“3. That since a commitment directed pursuant to K.S.A. 1978 Supp. 22-3428, appears to be neither criminal nor civil in nature, it seems appropriate to appellant at this time to proceed by way of Habeas Corpus, which such action is on file with the Court, Case No. 51,265.”
On July 19, 1979, the Court of Appeals dismissed the consolidated direct appeals of the criminal cases, said action being taken “on the basis of appellant’s response.”
On December 3, 1979, the case herein was transferred to this court from the Court of Appeals.
From the facts and procedural history of the petitioner-appel la,nt’s efforts-to have an appellate court determine the constitutional issues raised, we note the following:
1. Petitioner is now a resident of the State of Colorado.
2. Petitioner is not now nor has he ever been in the custody of the Secretary of Corrections or the state security hospital.
3. Petitioner is not under bond nor subject to any restrictions upon his liberty, such as limitations upon where he may reside, a duty to report, or proscription on travel. But for the stay of commitment entered by the Court of Appeals, the commitment would have been effectuated.
4. No individuals are named as respondents. The Court of Appeals directed the “State” to respond. Thomas D. Haney, assistant attorney general, who prosecuted the case in such capacity, filed an answer on behalf of the “respondents.”
5. It is unclear whether petitioner is maintaining the action pursuant to K.S.A. 60-1507 or 60-1501. A prerequisite to K.S.A. 60-1507 is that the petitioner be a “prisoner in custody under sentence.” K.S.A. 60-1501 provides:
“Subject to the provisions of K.S.A. 60-1507 any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever, and any parent, guardian, or next friend for the protection of infants or allegedly incapacitated or incompetent persons, physically present in this state may prosecute a writ of habeas corpus in the supreme court, court of appeals or the district court of the county in which such restraint is taking place. No docket fee shall be required.”
Under either statute serious questions of applicability may be raised.
6. The Court of Appeals prompted the filing of this original action by its order of July 5, 1979, and in so doing apparently concluded that an action pursuant to K.S.A. 60-1501 would be appropriate, inasmuch as the order made reference to custody being “covered by K.S.A. 60-1505(c).”
7. Petitioner’s challenge to the constitutionality of the mandatory commitment provision of K.S.A. 1979 Supp. 22-3428 has been pending in the appellate courts in one form or another for almost a year.
8. The issues raised are of statewide significance in the administration of the criminal justice system.
In considering the jurisdictional issue in Levier v. State, 209 Kan. 442, 450, 497 P.2d 265 (1972), this court stated:
“First of all, K.S.A. 60-102 mandates that the provisions of the code ‘shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding’. Habeas corpus is that kind of remedy. 60-202 provides that there shall be but one form of action to be known as a ‘civil action’. 60-1505(d), prescribing the judgment which may be entered in a habeas corpus proceeding, states ‘the court may make such other orders as justice and equity . . . may require’. Finally, K.S.A. 60-2606 provides:
“ ‘If a case arises in which an action or proceeding for the enforcement or protection of a substantive right, or the redress or prevention of a wrong, cannot be had under any specific provisions of this chapter or other statutes then the court shall proceed as nearly in conformity with the provisions of this chapter as the circumstances permit to do whatever law and equity and justice require for the protection of the parties.’ ”
Under the totality of the unique circumstances existing herein, and based upon the rationale of Levier, above stated, we conclude the interests of the parties and justice are better served by determining the issues on their merits at this time rather than by dismissing the action on procedural grounds to await the refiling of this action after the commitment is effectuated.
We shall now consider this original action on its merits. The challenged statute is K.S.A. 1979 Supp. 22-3428(1), which provides:
“(1) When a person is acquitted on the ground that such person was insane at the time of the commission of the alleged crime the verdict shall be ‘not guilty because of insanity,’ and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment.”
The petitioner contends that his mandatory commitment to the state security hospital pursuant to said statute:
1. Violates his right to due process of law, as the commitment is automatic without determination of his present mental condition;
2. Violates the equal protection clause of the Fourteenth Amendment to the United States Constitution, as any person involuntarily committed civilly to a mental hospital pursuant to the act for obtaining treatment for a mentally ill person (K.S.A. 59-2901 et seq.) is afforded á hearing to determine present mental condition and need of treatment prior to such commitment; and
3. Constitutes cruel and unusual punishment.
Before considering the specific challenges to the statute the basic principles which the courts must apply in determining the constitutionality of a statute should be set forth. These general principles were stated in City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. ¶¶ 1-4, 598 P.2d 1051 (1979), as follows:
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.”
“In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
“Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.”
“The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere.”
In re Clark, 86 Kan. 539, 121 Pac. 492 (1912), involved an unsuccessful constitutional challenge to a much more severe mandatory commitment statute. In Clark, at 553, the court stated:
“The purposes of the statute are highly beneficent. It gives protection to the public against repetitions of homicides or other acts of irresponsible frenzy or distraction, and affords to the unfortunate persons so committed safe seclusion and humane treatment, which it is the province of the state to give in the exercise of its parental power. The judicial department may not interfere with the legislative conscience, unless there is a clear violation of some provision of the constitution.”
The petitioner attempts to separate the question of due process from the question of equal protection. Inasmuch as many of the cases cited involved both grounds, it would appear more expeditious to consider the issues jointly.
The pertinent provisions of the Fourteenth Amendment are as follows:
“[N]or 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.”
What constitutes “due process of law” is a question with which courts have long struggled. A universal standard applicable to all situations has not surfaced. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972). “Protection from arbitrary governmental action is the essence of due process.” Baker v. List and Clark Construction Co., 222 Kan. 127, 134, 563 P.2d 431 (1977). Akin to freedom from arbitrariness is the doctrine of “substantive” due process. “If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause.” Richardson v. Belcher, 404 U.S. 78, 84, 30 L.Ed.2d 231, 92 S.Ct. 254 (1971). “[I]f a statute is necessary for the effectuation of a legitimate and substantial state interest, and not applied in an arbitrary or capricious manner, it would not violate the due process clause.” Wesley Medical Center v. McCain, 226 Kan. 263, 266, 597 P.2d 1088 (1979); Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 318, 532 P.2d 1263 (1975). “[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 6 L.Ed.2d 1230, 81 S.Ct. 1743 (1961). “[Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 47 L.Ed.2d 18, 96 S.Ct. 893 (1976).
“Equal protection of the laws” has also frequently been considered. In State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978), this court stated:
“Our next concern is whether the statute offends the equal protection clause. When considering this question we must first determine the proper test. Traditionally, the yardstick for measuring equal protection arguments has been the ‘reasonable basis’ test. The standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L.Ed.2d 393, 81 S.Ct. 1101:
“ ‘. . . The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. . . .’
“In Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914, 26 L.Ed.2d 80, 90 S.Ct. 1684, it was stated:
“ ‘. . . If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78. . . .’ (p. 485.)”
In State v. Goodseal, 220 Kan. 487, 493-494, 553 P.2d 279 (1976), this court stated:
“Appellant makes the further broad assertion that application of the felony murder rule in his case constitutes the infliction of cruel and unusual punishment and denial of his rights of equal protection and due process. The felony murder rule represents a longstanding policy of this state. We have already indicated its rationale — to furnish an added deterrent to the perpetration of felonies which, by their nature or the attendant circumstances, create a foreseeable risk of death. ‘The legislature, acting in the exercise of the police power of the state, is empowered to enact measures in furtherance of the public welfare and safety, and its enactments in such areas are not to be judicially curtailed where they reasonably relate to the ends sought to be attained. Classification honestly designed to protect the public from evils which might otherwise arise are to be upheld unless they are unreasonable, arbitrary or oppressive’ (State v. Weathers, 205 Kan. 329, Syl. para. 1 & 2, 469 P.2d 292). The felony murder rule, designed as it is to protect human life, represents sound public policy, is reasonably related to the end sought to be accomplished and is not constitutionally impermissible.”
In Baxstrom v. Herold, 383 U.S. 107, 111, 15 L.Ed.2d 620, 86 S.Ct. 760 (1966), it was held:
“Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.”
Petitioner’s due process and equal protection arguments attack the statute in general as well as its application to the petitioner under his particular factual situation. We will first consider the general question of whether mandatory commitment of insanity acquittees is violative of due process and a denial of equal protection. The petitioner does not contend that the disposition of cases involving insanity acquittees is beyond legitimate state interest and purpose. He does contend, however, that the mandatory commitment of such persons without a separate hearing to determine present condition is not reasonably related to the legitimate state purpose.
In determining the questions it is necessary to examine the law of Kansas as it relates to the defense of insanity, commitment of persons found not guilty because of insanity, and post-commit ment procedures. Only by such means can the mandatory commitment provision be viewed in its proper perspective.
K.S.A. 1979 Supp. 22-3219 provides:
“(1) Evidence of mental disease or defect excluding criminal responsibility is not admissible upon a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant’s intention to rely upon the defense of insanity. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the information or indictment. For good cause shown-the court may permit notice at a later date.
“(2) A defendant who files a notice of intention to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by whom such examination shall be made. No order of the court respecting a mental examination shall preclude the defendant from procuring at such defendant’s own expense an examination by a physician of such defendant’s own choosing. A defendant requesting a mental examination pursuant to K.S.A. 22-4508 may request a physician of such defendant’s own choosing. The judge shall inquire as to the estimated cost for such examination and shall appoint the requested physician if such physician agrees to accept compensation in an amount in accordance with the compensation standards set by the board of supervisors of panels to aid indigent defendants. A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.”
We see from this statute that insanity is a matter which must be specifically raised by a defendant if he intends to rely on same as a defense to the charges.
Determination of competency to stand trial pursuant to K.S.A. 1979 Supp. 22-3302 may be raised by defense counsel, the court, or the prosecution. Such determination differs from and is unrelated to an insanity defense. See Van Dusen v. State, 197 Kan. 718, 421 P.2d 197 (1966).
After an insanity defense is asserted, and assuming the evidence at trial puts the matter at issue, the trier of the facts must determine whether or not the defendant was insane at the time of the commission of the offense. The test long utilized in Kansas for such determination is the M’Naghten rule.
In State v. Andrews, 187 Kan. 458, 465, 357 P.2d 739 (1960), cert. denied 368 U.S. 868 (1961), this court approved the following instruction as a “very accurate statement of the law of this state since the first decisions of this court on the subject”:
“ T4. Insanity, to constitute a legal defense to the charge of crime, means that the defendant is laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he is doing, or if he did know it, that he did not know that what he was doing was wrong because of his mental inability to distinguish between right and wrong, and if these facts exist, then the law does not hold him responsible for his act. On the other hand, if a defendant is mentally capable of understanding what he is doing and has the power to know that his act was wrong, then the law will hold him criminally responsible for it. If this power of discrimination existed, he was sane in the eyes of the law. A person of sound mind and discretion will not be exempted from punishment because he might have been a person of weak intellect or one whose moral perceptions were blunted or ill developed, or because his mind may have been depressed or distracted from brooding over misfortunes or disappointments, or because he may have been wrought up to the greatest and most intense mental excitement from sentiments of disappointment, rage, revenge, or anger. The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by the law to be criminal, so long as the person committing the act had the capacity to know what he was doing and the power to know that his act was wrong.’ ”
The present Pattern Instructions for Kansas (PIK [Criminal]) recommends the following simplified instruction:
“PIK 54.10 INSANITY — MENTAL ILLNESS OR DEFECT
“The defendant has denied criminal responsibility because of lack of mental capacity at the time the offense was committed. In law, this is called insanity. The defendant is not criminally responsible for his acts if his mental capacity was such that he did not understand the nature of his acts or did not understand that what he was doing was wrong because of his mental inability to distinguish between right and wrong.
“If you have a reasonable doubt as to the mental capacity of the defendant at the time of the alleged commission of the offense, then you should find the defendant not guilty because of insanity.”
The M’Naghten test has often been criticized by those who believe it is too strict and unenlightened in view of advances in modern psychiatry. The pros and cons of such argument are inappropriate herein, as the M’Naghten rule is not challenged. For a full discussion thereof, see State v. Sanders, 225 Kan. 147, 587 P.2d 893 (1978). The M’Naghten rule is the law of this state. If degrees of insanity were placed on a scale of one to ten in ascending order of severity, those failing the M’Naghten test are all “tens.” To fail the M’Naghten test one must not have understood the nature of his acts or that such acts were wrong — the so-called right and wrong test. Generally speaking, evidence that a defendant attempted to conceal the crime or his identity as the perpetrator thereof goes a long way to defeat an insanity defense. Again, speaking in generalities, an insanity defense is more likely to be successful when the crime is senseless, heinous and shocking. In such situations a jury can more easily conclude that the defendant must not have understood the nature of his acts or that the same were wrong.
By contrast, for civil involuntary commitment purposes, a mentally ill person is defined by K.S.A. 1979 Supp. 59-2902(1) as follows:
“(1) The term ‘mentally ill person’ shall mean any person who is mentally impaired to .the extent that such person is in need of treatment and who is dangerous to himself or herself or others and
“(a) who lacks sufficient understanding or capacity to make responsible decisions with respect to his or her need for treatment, or
“(b) who refuses to seek treatment, except that no person who is being treated by prayer in the practice of the religion of any church which teaches reliance on spiritual means alone through prayer for healing shall be determined to be a mentally ill person unless substantial evidence is produced upon which the district court finds that the proposed patient is dangerous to himself or herself or others. Proof of a person’s failure to meet his or her basic physical needs, to the extent that such failure threatens such person’s life, shall be deemed as proof that such person is dangerous to himself or herself.”
The sole purpose in the commencement of a civil involuntary commitment action is to attempt to force psychiatric treatment upon an unwilling person.
If the insanity defense is successfully asserted, then subsequent proceedings are governed by K.S.A. 1979 Supp. 22-3428 and 22-3428a. These statutes are crucial to understanding the procedures utilized relative to insanity acquittees and, although lengthy, must be set forth in toto:
“22-3428. Acquittal because of insanity; commitment to state security hospital; procedure for release; jury instruction. (1) When a person is acquitted on the ground that such person was insane at the time of the commission of the alleged crime the verdict shall be ‘not guilty because of insanity,’ and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment.
“(2) Whenever it appears to the chief medical officer of the state security hospital that a person committed under this section is not dangerous to other patients, such officer may transfer such person to any state hospital. Any person committed under this section may be granted convalescent leave or discharge as an involuntary patient after thirty (30) days notice shall have been given to the district or county attorney, sheriff and district court of the county from which such person was committed.
“(3) Within fifteen (15) days after the receipt of the notice provided for in subsection (2), the district or county attorney may request that a hearing on the proposed leave or discharge be held. Upon receiving any such request the district court shall order that a hearing be held on the proposed leave or discharge, giving notice thereof to the state hospital where the patient was transferred, and the court shall order the involuntary patient to undergo a mental evaluation by a person designated by the court. A copy of all orders of the court shall be sent to the involuntary patient and such patient’s attorney. The report of the court ordered mental evaluation shall be given to the district or county attorney, the involuntary patient and such patient’s attorney at least five days prior to the hearing. The hearing shall be held within thirty (30) days after the receipt by the court of the district or county attorney’s request. The involuntary patient shall remain in the state hospital until the hearing on the proposed leave or discharge is to be held. At such hearing the court shall determine, and the patient shall have the burden of proof to show by a preponderance of the evidence, that the patient is not a danger to the patient’s self or others. The patient shall have the right to present evidence at such hearing and to cross-examine any witnesses called by the district or county attorney. At the conclusion of the hearing, if the court finds that the patient continues to be a danger to the patient’s self or others, the court shall order the patient to remain in the state hospital, otherwise the court shall order the patient discharged. If the court finds from evidence presented at the hearing that the discharge of the patient will not pose a danger only if the patient continues to take prescribed medication or to receive periodic psychiatric treatment or guidance counseling, then the court, if it orders the discharge of the patient, may order as a condition to the discharge that the patient continue to take prescribed medication and report as directed to a person licensed to practice medicine and surgery to determine whether or not the patient is taking such medication, or that the patient continue to receive periodic psychiatric treatment or guidance counseling. The court also may order that the patient be placed under the temporary supervision of a state probation and parole officer or district court probation or parole personnel, or any appropriate private agency, who will be authorized to prepare a suitable community re-entry program for the patient consistent with the recommendations, if any, of the person designated by the court to perform the mental evaluation. In order to insure the safety and welfare of the patient and the citizenry of the state the court may allow the patient to remain in custody at a facility under the supervision of the secretary of social and rehabilitation services for a period of time not to exceed thirty (30) days in order to permit sufficient time for said secretary to prepare recommendations to the court for a suitable re-entry program for the patient. Such re-entry program will be specifically designed to facilitate the return of the patient to the community as a functioning, self-supporting citizen, and may include appropriate supportive provisions for assistance in establishing residency, securing gainful employment, undergoing needed vocational rehabilitation, receiving marital and family counseling, and such other out-patient services that the designated agency identifies as beneficial. The jurisdiction of the court over the patient will terminate two years from the date of his or her conditional release and the supervisory authority over the patient then will expire unless earlier vacated by court order. In the event the patient will be residing in a county other than the county where the district court that ordered the conditional release is located, such court shall transfer venue of the case to the district court of such other county and send a copy of all of the court’s records of the proceedings to such court. At any time during the conditional release period, the patient, through his or her attorney, or the county or district attorney of the county in which the district court having venue is located may file a motion for modification of the conditions of discharge, and the court shall hold an evidentiary hearing on the motion within fifteen (15) days of its filing. The court shall give notice of the time for such hearing to the patient and the county or district attorney. If the court finds from the evidence at the hearing that the conditional provisions of discharge should be modified or vacated, it shall so order. If at any time during the transitional period the designated medical officer or supervisory personnel informs the court that the patient is no.t satisfactorily complying with the provisions of the conditional release, the court after a hearing for which notice thereof has been given to the county or district attorney and the patient, may make orders for additional conditions of the discharge designed to effect the ends of the re-entry program or the court may order the county or district attorney to file an application to determine whether the patient is a mentally ill person as provided in K.S.A. 1979 Supp. 59-2913. In cases where such an application is ordered to be filed, the court shall proceed to hear and determine the application pursuant to the provisions of the act for obtaining treatment for a mentally ill person and such provisions shall apply to all subsequent proceedings. The costs of all proceedings, the mental evaluation and the re-entry program authorized by this section shall be paid by the county from which such person was committed.
“(4) In any case where the defense of insanity is relied on the court shall instruct the jury on the substance of this section.”
“22-3428a. Annual hearings for persons found not guilty because of insanity; procedure. (1) Any person found not guilty because of insanity who remains in the state security hospital or a state hospital for over one year pursuant to a commitment under K.S.A. 1979 Supp. 22-3428 shall be entitled annually to request a hearing to determine whether or not such person continues to be dangerous to the patient’s self or others. The request shall be made in writing to the district court of the county where the person is hospitalized and shall be signed by the committed person or such person’s counsel. When the request is filed, the court shall forthwith give notice of the request to: (a) The county or district attorney of the county in which the person was originally ordered committed, and (b) the chief medical officer of the state security hospital or state hospital where the person is committed. The chief medical officer receiving the notice or such officer’s designee, shall conduct a mental examination of the person and shall send to the district court of the county where the person is hospitalized and to the county or district attorney of the county in which the person was originally ordered committed a report of such examination within twenty (20) days from the date upon which notice from the court was received. Within five (5) days after receiving the report of the examination pursuant to this subsection, the county or district attorney receiving the same may file a motion with the district court that gave the notice, requesting such court to change the venue of the hearing to the district court of the county in which the person was originally committed. Upon receipt of such motion and the report of the mental examination such court shall forthwith transfer the hearing to the district court specified in the motion and send a copy of the court’s records of the proceedings to such court.
“(2) After the time in which a change of venue may be requested has elapsed the court having venue shall set a date for the hearing, giving notice thereof to the county or district attorney of the county, the committed person and such person’s counsel. If there is no counsel of record, the court shall appoint a counsel for the committed person. The committed person shall have the right to procure, at his or her own expense, a mental examination by a physician of his or her own choosing. If a committed person is financially unable to procure such an examination, the aid to indigent defendants provisions of article 45 of chapter 22 of the Kansas Statutes Annotated shall be applicable to such person. A committed person requesting a mental examination pursuant to K.S.A. 22-4508 may request a physician of his or her own choosing, whereupon the judge shall inquire as to the estimated cost therefor. If such physician agrees to accept compensation in an amount in accordance with the compensation standards set by the board of supervisors of panels to aid indigent defendants, the judge shall appoint the requested physician; otherwise, the court shall designate a physician to conduct the examination. Copies of each mental examination of the committed person shall be filed with the court at least five days prior to the hearing and copies thereof shall be supplied to the county or district attorney receiving notice pursuant to this section and the committed person’s counsel.
“(3) At the hearing the committed person shall have the right to present evidence and cross-examine the witnesses. The committed person shall have the burden of proof to show by a preponderance of the evidence that the committed person is not a danger to such person’s self or others. At such hearing the court may make any order that a court is empowered to make pursuant to subsection (3) of K.S.A. 1979 Supp. 22-3428, and any amendments thereto. If the court finds the committed person is no longer dangerous to such person’s self or others, the court shall order the person discharged; otherwise, the person shall remain committed.
“(4) Costs of a hearing held pursuant to this section shall be assessed against and paid by the county in which the person was originally ordered committed.”
The discharge and conditional discharge provisions of the above statutes were extensively discussed and construed in our recent decision of In re Noel, 226 Kan. 536, 601 P.2d 1152 (1979). The holdings in Noel were summarized in its Syl. ¶¶ 1-5 as follows:
“Under K.S.A. 1978 Supp. 22-3428a, the determination of whether an insanity acquittee continues to be dangerous to himself, herself or others is a legal rather than a medical decision. In such proceedings the court has the obligation to weigh all the evidence, including medical opinions, and reach an independent judgment. In any such determination, due consideration must be given to the protection of the public.”
“Under K.S.A. 1978 Supp. 22-3428a, if the court finds the insanity acquittee is no longer dangerous to himself, herself or others, the court shall order the person discharged; if the court makes an unconditional finding that the insanity acquittee continues to be dangerous, the person shall remain committed; if the court finds the insanity acquittee will not pose a danger to himself, herself or others if certain conditions are imposed, the court may in its discretion order a conditional discharge pursuant to K.S.A. 1978 Supp. 22-3428(3).”
“In considering conditional discharge of an insanity acquittee pursuant to K.S.A. 1978 Supp. 22-3428(3), a conditional finding that the patient does not pose a danger to himself, herself or others does not require the court to discharge the patient. To discharge or not to discharge is discretionary with the court.”
“In exercising its discretion relative to any proposed conditional discharge of an insanity acquittee, the district court must consider whether any proposed conditions of discharge would truly accomplish their purpose; that is, to safeguard the patient and the public. If the court determines adequate safeguards are not present, then the patient should not be discharged. In any consideration of a reentry plan, the court should look to all aspects of the risks posed by the patient, the patient’s condition, and examine every facet of the plan to determine if it will realistically accomplish its purpose. If the court is satisfied that conditional discharge is appropriate, it may order the conditional discharge in accordance with the statutory provisions of K.S.A. 1978 Supp. 22-3428(3).”
“In the district court’s consideration of conditional discharge of the insanity acquittee, the determination as to dangerousness, whether discharge should or should not be ordered, and whether the conditional safeguards will accomplish their purpose, are all aspects of the same consideration and cannot be separately determined. If conditional discharge is ordered, the court should state with particularity the basis for its conclusion.”
As stated in Noel at 556, the area of insanity acquittee discharge is a highly sensitive issue with the public. The present statutory scheme represents a legislative balance between the public’s right to be protected from a potentially dangerous class of individuals and the rights of the members of the class to be protected from improvident confinement. A basic component of the statutory scheme is that every person successfully asserting an insanity defense shall receive an in-patient evaluation at the state security hospital prior to any transfer, discharge or conditional discharge. Significant responsibility is placed upon the chief medical officer of the state security hospital. The state security hospital is a unique and highly specialized state institution. It is the only state hospital providing substantial and ongoing security as a basic part of its program. Its chief medical officer and staff, presumably by virtue of training and experience, have expertise in evaluating and treating potentially dangerous persons. The legislature obviously relies heavily on the chief medical officer of the facility and has made such officer the integral part of the statutory scheme dealing with insanity acquittees.
The law presumes public officials will faithfully perform duties imposed upon them by law. Bowers v. City of Kansas City, 202 Kan. 268, 448 P.2d 6 (1968). Should the chief medical officer of the state security hospital fail to perform his duties, the additional safeguard of a habeas corpus action, pursuant to K.S.A. 60-1501 et seq., is available to the committed person whose rights are adversely affected thereby.
Does the mandatory commitment of insanity acquittees to the state security hospital, when viewed in context with the law of Kansas as it relates to the defense of insanity and post-commitment procedures, offend the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution? We think not.
Petitioner contends that were the precise questions presented here raised before the United States Supreme Court, he would prevail. In support of this contention, petitioner cites Specht v. Patterson, 386 U.S. 605, 18 L.Ed.2d 326, 87 S.Ct. 1209 (1967). Specht was convicted of a sex crime which carried a maximum sentence of 10 years. The trial court, pursuant to the Colorado Sex Offenders Act, had the petitioner examined by psychiatrists, received a report, granted the petitioner no hearing or right of confrontation, determined that the petitioner constituted a threat of bodily harm to members of the public or was a habitual offender and mentally ill, and sentenced the petitioner to an indeterminate term of from one day to life. The Supreme Court reversed on the rationale that, pursuant to said act, conviction of one crime was the basis for a new proceeding under the act. The new proceeding involved a new finding of fact. The petitioner could not participate in the new proceeding and was, accordingly, denied due process of law. This case is readily distinguishable from the case before us and needs no further discussion.
Petitioner also cites Jackson v. Indiana, 406 U.S. 715, 32 L.Ed.2d 435, 92 S.Ct. 1845 (1972), which invalidated an Indiana statute that authorized indeterminate committal of a person found incompetent to stand trial. In so doing, the court stated at 738:
“At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”
The factual situation in Jackson is readily distinguishable.
Another readily distinguishable case cited by petitioner is Baxstrom v. Herold, 383 U.S. 107, which struck down a New York law that permitted prisoners nearing the end of their terms to be administratively committed to mental hospitals. A similar situation was involved in the recent United States Supreme Court case of Vitek v. Jones, 445 U.S. 481, 63 L.Ed.2d 552, 100 S. Ct. 1254 (1980).
A case providing much greater insight as to what the United States Supreme Court might do if confronted with the issues here, and highly pertinent to the determination herein, is Lynch v. Overholser, 369 U.S. 705, 8 L.Ed.2d 211, 82 S.Ct. 1063 (1962). Lynch was found not guilty by reason of insanity on bad check charges. The defendant did not raise insanity as a defense. In fact, he maintained he was mentally responsible and attempted to plead guilty. He was mandatorily committed to a mental hospital, pursuant to the District of Columbia Code. He challenged his commitment on constitutional grounds. The United States Supreme Court held that the mandatory commitment provision was inapplicable to Lynch since he had not asserted an insanity defense. The following section of the opinion is quite pertinent to the matter before us:
“The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.
“II.
“The enactment of § 24-301(d) in 1955 was the direct result of the change in the standard of criminal responsibility in the District of Columbia wrought by Durham v. United States, 94 U.S. App. D.C. 228, 214 F.2d 862. That decision provoked a congressional re-examination of the laws governing commitment of the criminally insane. ‘Apprehension that Durham would result in a flood of acquittals by reason of insanity and fear that these defendants would be immediately set loose led to agitation for remedial legislation.’ Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L. J. 905, 941 (1961). A Committee on Mental Disorder as a Criminal Defense was established by the Council on Law Enforcement in the District of Columbia to inquire into ‘the substantive and procedural law of the District of Columbia bearing on mental disorder as a defense in a criminal prosecution.’ S. Rep. No. 1170, 84th Cong., 1st Sess. 1 (1955); H. R. Rep. No. 892, 84th Cong., 1st Sess. 1 (1955). Among its recommendations was a mandatory commitment provision, subsequently enacted as § 24-301(d). The Committee noted that while under the then existing discretionary commitment statute it had been customary for the court and the appropriate executive official to order the confinement of all those who had been found not guilty solely by reason of insanity, more assurance should be given the public that those so acquitted would not be allowed to be at large until their recovery from past mental illness had been definitely established:
“ ‘No recent cases have come to the attention of this Committee where a person acquitted in the District of Columbia of a crime on the sole ground of insanity has not been committed to a mental hospital for treatment. Nevertheless, the Committee is of the opinion that the public is entitled to know that, in every case where a person has committed a crime as a result of a mental disease or defect, such person shall be given a period of hospitalization and treatment to guard against imminent recurrence of some criminal act by that person.’ (Emphasis in the original.)
“ ‘The Committee believes that a mandatory commitment statute would add much to the public’s peace of mind, and to the public safety, without impairing the rights of the accused. Where accused has pleaded insanity-as a defense to a crime, and the jury has found that the defendant was, in fact, insane at the time the crime was committed, it is just and reasonable in the Committee’s opinion that the insanity, once established, should be presumed to continue and that the accused should automatically be confined for treatment until it can be shown that he has recovered.’ S. Rep. No. 1170, 84th Cong., 1st Sess. 13 (1955); H.R. Rep. No. 892, 84th Cong., 1st Sess. 13 (1955). (Emphasis added.)
“It is significant to note that in finding that mandatory commitment would not result in ‘impairing the rights of the accused’ and that it was ‘just and reasonable . . . that the insanity, once established, should be presumed to continue . . . until it can be shown that . . . [the accused] has recovered,’ the Committee Report, which was embraced in the reports of the Senate and House committees on the bill, spoke entirely in terms of one who ‘has pleaded insanity as a defense to a crime.’ Certainly such confidence could hardly have been vouchsafed with respect to a defendant who, as in this case, had stoutly denied his mental incompetence at any time. And it is surely straining things to assume that any of the committees had in mind such cases as this, which are presumably rare.” pp. 715-717.
One of the difficulties in comparing the decisions of courts of other jurisdictions is that each has its own statutory scheme and case law relative to the insanity defense. Even the test of insanity varies. Insanity acquittees in M’Naghten rule states have “failed” a far more rigid test than have insanity acquittees in an A.L.I. rule state. These differences are important relative to reasonableness of the mandatory commitment provision, as well as to its comparison with involuntary commitment procedures in considering equal protection arguments.
Annot., Commitment After Acquittal for Insanity, 50 A.L.R.3d 144, is directly on point. The annotation reflects that the majority of the states having the mandatory commitment of insanity ac quittees provision have upheld said statutes against constitutional challenges. Illustrative of the cases upholding such statutes is State v. Kee, 510 S.W.2d 477 (Mo. 1974), from our sister state of Missouri, wherein the court reviewed many of the cases cited by our petitioner and concluded that mandatory commitment does not deny due process, and that equal protection is not denied, although civilly committed persons are subject to different procedures.
In Torsney (Mental Hygiene), 47 N.Y.2d 667, 420 N.Y.S.2d 192 (1979), a case dealing with the later release of an insanity acquit-tee, the New York Court of Appeals again approved mandatory commitment of insanity acquittees, stating at 672:
“In recently sustaining the constitutionality of the automatic commitment of persons acquitted by reason of mental disease or defect, this court observed that ‘[a]n individual who has committed an act of violence, and has thus demonstrated his dangerousness, and who has successfully asserted an insanity defense, may quite properly be treated somewhat differently from other individuals who, although they may in fact be potentially equally dangerous as a result of mental problems, have not yet so vehemently demonstrated their dangerousness by violent antisocial behavior.’ (People ex rel. Henig v. Commissioner of Mental Hygiene, 43 NY 2d 334, 338; see, also, People v. Lally, 19 NY 2d 27; People ex rel. Peabody v. Chanler, 133 App Div 159, affd 196 NY 525 [sustaining constitutionality of predecessor statutes to CPL 330.20].) For this reason, persons acquitted under CPL 330.20 may be viewed as an ‘exceptional class’ justifying commitment to the custody of the Commissioner of Mental Hygiene without a prior hearing to determine their mental condition on the date of acquittal.”
See also In the Matter of Lewis, 403 A.2d 1115, 1118 (Del. 1979), approving the language in Chase v. Kearns, 278 A.2d 132, 138 (Me. 1971), as follows:
“ . . [T]he finding by the jury that a defendant, because of his mental disease or defect, shall be held blameless for an act otherwise subject to criminal sanctions puts such a defendant into an exceptional class. The special interest which the public has acquired in the confinement and release of people in this exceptional class results from the fact that there has been a judicial determination that they have already endangered the public safety and their own as a result of their mental conditions as distinguished from people civilly committed because of only potential danger.’ ”
See also Mills v. State, 256 A.2d 752, 757 (Del. 1969), another Delaware case, wherein the court held:
“We hold that in adjusting the delicate balance between a society’s right to be protected from potentially mental[ly] ill and dangerous individuals, on the one hand, and the individual’s right to be protected from improvident confinement on the other, it was not a denial of due process to commit the appellant under § 4702 (a) by virtue of the presumption of continuing mental illness and the jury’s verdict, without a separate hearing and determination as to present mental condition.”
Petitioner cites cases wherein mandatory commitment provisions were invalidated. Illustrative of such cases is Wilson v. State, 259 Ind. 375, 385, 287 N.E.2d 875 (1972), wherein the Indiana Supreme Court reasoned:
“Having placed his former sanity in issue and having been acquitted by reason of insanity existing at the time of the crime charged, the defendant, quite logically, falls within the class of individuals possibly suffering from mental illness and within the subclass therein of those who may be dangerously mentally ill. The State, having enacted elaborate statutory safeguards to provide for the protection of society from people dangerously mentally ill, may not, consistent with the equal protection requirements as applied in Baxstrom, supra, and Jackson, supra, arbitrarily subject the defendant, as a person acquitted of crime by reason of insanity, to the substantially different procedures of Burns § 9-1704a and § 9-1705 and deny to him the protection and safeguards afforded others who may be equally insane and equally dangerous but concerning whom the possibility of such mental condition may have been differently manifested.”
See also State ex rel. Kovach v. Schubert, 64 Wis. 2d 612, 623, 219 N.W.2d 341 (1974), wherein the Wisconsin Supreme Court held in a 4 to 3 decision that mandatory commitment was a denial of equal protection, inasmuch as civilly committed persons were subject to different procedures, and stated:
“We also conclude that the procedure under sec. 971.17, Stats., for the automatic commitment of a defendant upon a finding of not guilty by reason of mental disease or mental defect constitutes a denial of due process in its denial of a hearing and finding of present insanity at the time of the commitment.
“Jackson v. Indiana does not justify an automatic commitment without a hearing. That case merely holds that the duration of commitment must bear a reasonable relation to the purpose of the commitment. It does not stand for the proposition that commitment can be without a hearing. The petitioner in Jackson did have an adjudication of incompetency before being committed.
“To satisfy due process, the finding of present mental illness should be made after a full hearing on a defendant’s present condition.”
When the mandatory commitment of insanity acquittees is examined in context with the entire legislative scheme relative to the insanity defense, commitment, and discharge procedures, and the purpose of such legislation, we conclude:
1. The mandatory commitment is reasonably and rationally related to the accomplishment of proper legislative purpose, and is not arbitrary or capricious;
2. The legislative scheme constitutes a reasonable balance between the public’s right to be protected from a potentially dangerous class of individuals and the rights of the members of the class to be protected from improvident confinement;
3. The classification of insanity acquittees as a class separate and apart from persons subject to civil involuntary commitment procedures is not arbitrary or capricious and is reasonably related to proper legislative ends sought to be attained; and
4. The mandatory commitment of insanity acquittees does not deny due process of law nor equal protection of the law.
We also note the 1980 amendments to K.S.A. 22-3428 to be effective upon publication in the statute book. Although the case herein must be resolved upon the existing law, new K.S.A. 22-3428(1) provides:
“(1) When a person is acquitted on the ground that such person was insane at the time of the commission of the alleged crime the verdict shall be ‘not guilty because of insanity,’ and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment. A finding of not guilty by reason of insanity shall constitute a finding that the acquitted person committed an act constituting the offense charged or an act constituting a lesser included crime, except that the person did not possess the requisite criminal intent. A finding of not guilty because of insanity shall be prima facie evidence that the acquitted person is presently dangerous to the person’s self or others or property of others.” (Emphasis indicates amendment.)
This 1980 amendment is .demonstrative of legislative intent and the result reached herein is not inconsistent therewith.
We turn now to the questions of whether under the particular facts of petitioner’s situation, the mandatory commitment procedures are constitutionally defective on the grounds of due process and equal protection.
At this point the relevant facts are summarized as follows: The time period involved is roughly the first six months of 1976. Petitioner was, during said time, the president of both the Farmers State Bank in Canton, Kansas, and Sunflower Beef Feeders, Inc. Petitioner suffers from the mental illness known as manic-depressive illness. This illness is characterized by extreme personality shifts between the high-energy manic phase to the low-energy depressive phase. In the first half of 1976 petitioner was in the manic phase. He perceived himself as a financial genius in the futures market. His ability did not measure up to his perception thereof and serious financial losses resulted. Unfortunately, the losses included funds that were not his — hence, the bank embez zlement and theft charges herein. We do not have the record from the criminal cases. The State contends some $500,000 was concerned, but petitioner states the actual amount in the five counts was $100,000. In either event, a substantial sum of money was involved. When the situation was collapsing, petitioner had himself admitted to a Wichita hospital for psychiatric treatment.
Manic-depressive illness may be controlled by the continual taking of lithium carbonate in appropriate dosage. Petitioner has been receiving private psychiatric treatment, including the administration of lithium carbonate, during and since his two-week hospitalization. The expert psychiatric evidence submitted by stipulation to the trial court unanimously concluded that during the time period involved in the criminal acts charged petitioner was insane under the standards of the M’Naghten test of insanity.
The expert testimony proffered to the trial court in support of petitioner’s motion to determine the applicability of the mandatory commitment provision of K.S.A. 22-3428 was to the effect that petitioner was voluntarily receiving psychiatric treatment, was taking the prescribed medication, said treatment was controlling his mental illness, and petitioner was currently functioning within the boundaries of normalcy and was not currently dangerous or in need of safekeeping or a treatment program in addition to what he was voluntarily receiving. Attached to the petition herein was the affidavit of a psychiatrist reiterating the above and expressing the opinion that petitioner’s present treatment was superior to that which he would receive at the state security hospital, and that such hospitalization could be detrimental.
The petitioner contends that under the particular facts and circumstances of his situation his mandatory commitment is violative of the due process and equal protection clause of the United States Constitution. Boiled down to their very essence, these special circumstances are:
1. The nature of the offenses of which he was found not guilty because of insanity;
2. The fact he has not been in custody and has, while on bond, been evaluated and treated by well-qualified and highly respected private psychiatrists;
3. The psychiatric treatment already received and expected to be received in the future is superior to that available to him in state-maintained hospitals; and
4. The psychiatric reports indicating his illness is being controlled by his present treatment program.
The United States Constitution does not afford greater due process and equal protection rights to:
1. Persons involved in what is commonly referred to as white collar crime; or
2. Persons who have the financial resources and opportunity to secure psychiatric treatment from well-credentialed private psychiatrists.
The petitioner has successfully asserted the defense of insanity. Mandatory commitment to the state security hospital is a part of the lawful procedure. The petitioner’s contentions in this regard are without merit.
Inherent in K.S.A. 1979 Supp. 22-3428 is that upon commitment, the state security hospital should with all due speed evaluate the petitioner’s present condition, needs, and propensity for dangerousness.
The extensive psychiatric treatment received by the petitioner should provide valuable data for the state security hospital in its evaluation of the petitioner.
As his final point, petitioner challenges his mandatory commitment on the ground that it constitutes cruel and unusual punishment. The purpose of K.S.A. 1979 Supp. 22-3428 is clearly not punishment. This point is without merit.
All matters raised by petitioner, whether or not specifically referred to herein, have been considered and found to be without merit.
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The opinion of the court was delivered by
Holmes, J.:
This is a consolidated appeal from a jury verdict finding appellants, Milton Porter, William Green and Vernon Smith, each guilty of two counts of aggravated robbery (K.S.A. 21-3427).
On the 23rd day of April, 1979, two black men entered an APCO service station in Kansas City, Kansas, and robbed two station attendants at gunpoint. During the time that the robbery was taking place, Wendell Kilian, a security manager for Sears, Roebuck & Co., was leaving the Sears store which is located approximately fifty yards from the APCO station. Kilian noticed in the parking lot a blue car which was occupied by two black males who were looking in the direction of the APCO station. The motor of the car was running. Kilian became suspicious and drove past the car twice, noting the license tag number. He then observed two black males run from the station and get into the blue car which departed from the Sears lot at an unusually high rate of speed. Shortly thereafter a police officer saw the car run a stop sign and the officer turned on his emergency lights in an attempt to stop the car, which sped away. A high speed chase ensued ending when the car hit a telephone pole. Two men riding in the car jumped out and ran from the scene. Police from a backup car chased these two through a residential area and eventually arrested Milton Porter who was found hiding under a parked car. Smith, the driver of the car, and Green, a passenger, were arrested at the crash site. The fourth individual has not been identified or apprehended as far as we know.
The three defendants were arraigned on June 8,1979, and trial began on September 10,1979. Green and Porter were represented by Richard Keithley and Smith by Gerald Jeserich. All three were tried together and all three have appealed, alleging various points on appeal.
The first and major point on appeal by Porter and Smith is that the trial court erred in admitting codefendant Green’s extrajudi cial statements into evidence. Since Green did not testify Porter and Smith contend that their Sixth Amendment right of confrontation was violated and further contend that the failure of the trial court to give a limiting or cautionary instruction to the effect that Green’s statement could not be considered as evidence against Smith and Porter is reversible error.
Green’s oral statement was introduced through the testimony of Sergeant Clyde Blood of the Kansas City, Kansas, Police Department. His testimony follows:
“Q. What happened then after Mr. Green here indicated that he did understand his rights. Did he indicate at that point whether he talked to you about the APCO robbery?
“A. Well, after he signed his rights, he indicated that he was involved in the robbery of the APCO station with three other parties.
“Q. Okay. Did he indicate to you how this robbery came to pass?
“A. Well, he had met — he was with two parties and met another party at a Kentucky Fried Chicken store at 36th, I believe, and State Avenue. At that time they discussed the robbery of the APCO station.”
At this point the proceedings were interrupted and both defense counsel renewed their objections, which had been made earlier at an in camera hearing held to determine the admissibility of the statement. The objections were overruled and the testimony continued.
“Q. (By Mr. Sieve) Sergeant, you were to a point there where you said that the Defendant Green said he had gotten together with three other people and I think you said they were planning this robbery. Go ahead then with what Mr. Green told you?
“A. Well, they discussed the robbery while they were at the Kentucky Fried Chicken Store. One of the parties supplied one or two hand guns. I don’t recollect I think it was two. They were both, I believe, revolvers. They proceeded in a motor vehicle to the area of Sears and Roebuck where they parked the vehicle in a lot adjacent to the Sears and Roebuck Store. At that time Mr. Green and another accomplice walked to the APCO Station and the robbery was executed and they left the area and returned to the Sears lot and got into the car and left.
“Q. Okay. And did he indicate to you what happened to him shortly thereafter leaving the Sears lot?
“A. Well, they were engaged in a short pursuit with uniformed police vehicles and apprehended, but I didn’t — don’t recollect the details of that pursuit or apprehension.”
Defendants’ objection to the admission of this evidence is based on the decision of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). The rule of Bruton is well recognized by this court and was summarized in State v. Mims, 220 Kan. 726, 732-33, 556 P.2d 387 (1976), as follows:
“In Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620, the United States Supreme Court held that an accused’s right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated where a codefendant does not testify and his extra-judicial confession inculpating the accused is admitted into evidence, notwithstanding jury instructions that the codefendant’s confession must be disregarded in determining the accused’s guilt or innocence. In Bruton the United States Supreme Court stated that under the traditional rules of evidence, a codefendant’s confession inculpating the accused is inadmissible against the accused as hearsay and that the major reason underlying the confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses. The rule of Bruton has been well recognized by this court. (State v. Greer, 202 Kan. 212, 447 P.2d 837; Cantrell v. State, 206 Kan. 323, 478 P.2d 192; State v. Oliphant, 210 Kan. 451, 502 P.2d 626.)”
See also State v. Rodriquez, 226 Kan. 558, 601 P.2d 686 (1979); State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978); State v. Edwards, 224 Kan. 266, 579 P.2d 1209 (1978); State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978); State v. Purdy, 228 Kan. 264, 615 P.2d 131 (1980); and State v. Hutchison, 228 Kan. 279, 615 P.2d 138 (1980).
Prior to the admission of the oral statement of Green, the trial court held an in camera hearing to determine its admissibility. The trial judge found that the statement could be introduced into evidence as long as all references to Porter and Smith were omitted. This process is known as redaction, which was defined by this court in Purdy as the “process of editing a defendant’s statement or confession to excise or delete incriminating references to a codefendant . . . .” Syl. ¶ 1. The case at bar, along with Purdy and Hutchison, is the first to come before this court dealing with redaction. Purdy and Hutchison involve written, interlocking statements, while the statement in the present case was an oral one which was not reduced to written form. In Bruton, the United States Supreme Court recognized the use of redaction in various jurisdictions without specific approval or disapproval. Bruton v. United States, 391 U.S. at 134, n. 10. There are, however, numerous federal and state cases dealing with the use of edited statements in trials of joint codefendants. For a summary of the rationale of many of these cases see State v. Purdy, and also Annot., Confrontation Clause - Bruton Rule, 29 L.Ed.2d 931, 991.
As we noted in Purdy, there are two somewhat conflicting rationales being employed by various courts for determining the adequacy of the redaction. In United States v. Wingate, 520 F.2d 309 (2d Cir. 1975), cert. denied 423 U.S. 1074 (1976), the defendant and codefendant were convicted of conspiracy to distribute heroin. Wingate’s codefendant, Smith, had made oral and written statements to the police inculpating both Wingate and himself. These statements were admitted into evidence after all references to Wingate had been deleted and the jury was instructed to consider the statements only against Smith and not against Win-gate. In both of the redacted statements there was reference to an unidentified individual who participated in the venture. Wingate argued that his conviction should be reversed because Smith’s statements appear to incriminate him when they are read in light of other evidence presented at the trial. The United States Court of Appeals rejected this argument and held that “a defendant’s statement is admissible at a joint trial, with cautionary instructions, even though the other evidence in the case indicates that an unmentioned codefendant was also involved in the activities described in the statement.” United States v. Wingate, 520. F.2d at 314 (citations omitted). See also United States, ex rel., Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970), cert. denied 401 U.S. 917 (1971), and United States v. Blassick, 422 F.2d 652 (7th Cir. 1970). In Wingate the Court was of the opinion that cautionary instructions were ineffective under Bruton “only where the extrajudicial statement admitted into evidence is ‘clearly inculpatory’ as to the complaining codefendant and is ‘vitally important to the government’s case.’ ” 520 F.2d at 313 (citations omitted).
As a result of the Wingate decision ,a number of courts have held that before a statement is “clearly inculpatory” the complaining defendant must be mentioned by name. Thus the mere omission of a codefendant’s name and the substitution of words such as we, him, her, them, the others, etc., in the statement has been held adequate to allow such statements to be admitted into evidence. We do not agree that such limited redaction is adequate in all cases to protect a codefendant’s right to confrontation under the Sixth Amendment to the Constitution of the United States.
The better reasoned approach to redaction is that enunciated in State v. Williams, 27 Ariz. App. 279, 554 P.2d 646 (1976). In Williams two codefendants were convicted of first degree rape. One of the codefendants had made a statement to the police. This statement in redacted form was allowed into evidence. On appeal the Arizona Court of Appeals held that in the context of Williams’ own statements and other evidence at the trial, the inevitable effect of the codefendant’s statement, which described repeated forcible rapes by unnamed individuals, was to inculpate Williams. It was therefore held that “[s]o long as the jury is highly likely to infer that the defendant is a nameless individual incriminated by the statement, the defendant’s rights are nevertheless violated.” State v. Williams, 27 Ariz. App. at 287.
It is unreasonable to assume that in all cases the mere deletion of a defendant’s name from a codefendant’s incriminating statement is going to protect the complaining defendant from being implicated in the minds of the jury, when the statement refers to other participants in the crime and the other defendants are sitting at the same counsel table charged with the same crimes. The United States Supreme Court recognized this problem in Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726 (1969), where Harrington, a white man, was on trial with three black codefendants. Incriminating statements made by the black defendants did not use Harrington’s name but there were references to “the white guy.” The U.S. Supreme Court agreed with Harrington that “it is irrelevant that he [Harrington] was not named in Cooper’s and Bosby’s [codefendants] confessions, that reference to ‘the white guy’ made it clear as pointing and shouting that the person referred to was the white man in the dock with the three Negroes.” Harrington v. California, 395 U.S. at 253. The Court went on to say that although the trial court erred in admitting the codefendants’ statements, the error was harmless because the confessions were merely cumulative in light of other overwhelming evidence against the defendant. See also Brown v. United States, 411 U.S. 223, 36 L.Ed.2d 208, 93 S.Ct. 1565 (1973).
In the case at bar, the implication may not be as blatant as it was in Harrington, but it is nevertheless clear that the reference made by Green to “they,” “two parties,” “three other parties,” etc., who met with him at the Kentucky Fried Chicken store and planned the robbery referred to and implicated Porter and Smith. Green’s statement was therefore improperly admitted into evidence.
Part and parcel of this same point is the failure of the trial court to give a limiting or cautionary instruction to the jury to the effect that Green’s statement could only be considered in determining the guilt or innocence of Green and was not to be considered in determining the guilt or innocence of Smith or Porter. Defendants rely upon our decisions in State v. Sullivan & Sullivan, 224 Kan. 110, and State v. Edwards, 224 Kan. 266, for the argument that the giving of a limiting instruction is a threshold requirement and the failure to give such an instruction is error per se requiring a reversal. We do not agree. In Sullivan & Sullivan, we adopted the rule that:
“A confession by an accused relative to the offense charged is admissible only against the confessor and in a joint trial of codefendants it is necessary that an instruction be given to the jury limiting the use and purpose of the confession to a determination of the guilt of the confessor. In the absence of such a limiting instruction this court under the facts of this case cannot say it was harmless error beyond a reasonable doubt.” Syl. f 4. (Emphasis added.)
The holding in Sullivan & Sullivan was followed in the case of State v. Edwards, 224 Kan. 266. In both of these cases limiting instructions were not given and we held that based upon the evidence in those cases the failure to give the instruction was reversible error. In those cases the other evidence was not so strong that it could be said that the giving of the instruction might not have affected the verdicts. It is, of course, always error to fail to give such an instruction, but if the other, independent evidence is so strong that it may be said the failure to give the instruction could not have affected the verdict of the jury, then the error may be harmless beyond a reasonable doubt.
The evidence introduced at trial shows that Porter was a passenger in the car which Kilian saw parked in the Sears parking lot. It was this car police chased through the city at high speed and Porter was one of the two men who ran from the car after it hit the telephone pole. Police found Porter in the immediate vicinity hiding under a parked car after they chased him from the scene of the car wreck. In his possession, police found a billfold containing identification papers belonging to Alfred Eugene Antonette, one of the APCO attendants who had been robbed. Antonette later identified the billfold as being his and also picked Porter out of a lineup as being one of the two men who robbed him. The other attendant who was robbed, Raymond Anderson, also positively identified Porter at the lineup as one of the men who robbed him. In light of this overwhelming evidence, Green’s statement was merely cumulative and the error was harmless beyond a reasonable doubt as to Porter.
The same holds true for defendant Smith. The record shows that a car belonging to Smith’s sister was observed parked in the Sears parking lot with its motor running while the robbery was taking place. The two occupants of the car were continuously looking over their shoulders in the direction of the APCO station. Defendants Porter and Green were seen running to the car from the direction of the APCO station and after entering the car the driver drove away from the Sears parking lot at a higher than normal rate of speed. A few minutes later when police observed the same car run a stop sign and signaled for the driver (Smith) to pull over, a high speed chase through the city ensued. The arresting officer testified that after Smith’s car hit a telephone pole Smith and the other occupants attempted to flee the scene on foot. Smith and Green, however, were dissuaded from running when the officer drew his revolver and pointed it at them.
In light of this evidence and defendant Smith’s own testimony, we hold that the admission of Green’s statement into evidence constituted harmless error beyond a reasonable doubt as to Smith.
At this point we deem it advisable to pause and comment upon the practice of attempting to use a redacted or edited oral statement that has not been reduced to writing. In Hutchison Justice Fromme commented upon the dangers inherent in joint trials where the statement or confession of one defendant, which inculpates a codefendant, is to be introduced in evidence. The practice of attempting to use an edited oral statement based upon the memory of the witness is fraught with danger and invites a mistrial or reversal.
“Where the confession is offered in evidence by means of oral testimony, redaction is patently impractical. To expect a witness to relate X’s confession without including any of its references to Y is to ignore human frailty. Again, it is unlikely that an intentional or accidental slip by the witness could be remedied by instructions to disregard.” Note, Codefendants’ Confessions, 3 Colum. J. of Law & Soc. Prob. 80, 88 (1967).
Recognizing the desirability of joint trials as well as the problems that arise in joint trials, the American Bar Association Project on Standards for Criminal Justice, Joinder and Severance (1974), recommends the following:
“2.3 Severance of defendants.
(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court should determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court should require the prosecuting attorney to elect one of the following courses:
(i) a joint trial at which the statement is not admitted into evidence;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the confession will not prejudice the moving defendant; or
(iii) severance of the moving defendant.”
Smith’s second point on appeal is that there was juror misconduct sufficient to entitle him to a new trial. It is contended that an elderly woman juror fell asleep during the trial and that the appellant was thereby prejudiced. No objection was made during the trial and the record does not contain any indication that a juror was in fact sleeping during the presentation of the case.
“Where alleged juror misconduct claimed as prejudicial is known by the party or his counsel prior to rendition of a verdict, and no objection is made, nor the matter brought to the court’s attention, the party cannot later assert the misconduct as grounds for a new trial.” State v. Buggs, 219 Kan. 203, Syl. ¶ 4, 547 P.2d 720 (1976).
Smith’s second point is without merit.
Defendant Green’s first point on appeal is that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States and K.S.A. 1979 Supp. 22-3204. Green did not make bond and from the date of arraignment to the day of the trial, 94 days elapsed. The only continuance in this case was obtained by Green’s attorney, Richard Keithley. A pretrial conference had been scheduled for June 20, 1979, but on that date the conference was continued for 21 days by the defense due to the fact that Keithley was unable to be present. Green argues that he was present at the original pretrial hearing and did not participate in or agree to the request for a continuance; however, he made no objection to the continuance and the matter was not raised during trial or in the motion for new trial.
It is well settled in this state that any period of delay resulting from a continuance granted at the request of the defendant is to be excluded in computing the time for trial required by K.S.A. 1979 Supp. 22-3402. State v. McCambry, 225 Kan. 803, 594 P.2d 222 (1979). Green’s first point is without merit.
Finally Green and Porter contend they received ineffective assistance of counsel from their court-appointed attorney, Richard Keithley. This issue was never raised at any time during the trial nor on the defendants’ motion for a new trial. The trial court was therefore not given an opportunity to consider this issue. Since the point was not presented to or determined by the district court, it is not properly before this court and will not be considered for the first time on appeal. State v. Roberts, 226 Kan. 740, 602 P.2d 1355 (1979).
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The opinion of the court was delivered by
McFarland, J.:
Lee Luther Ramsey was convicted by jury trial of conspiracy to commit first degree murder (K.S.A. 21-3302 and K.S.A. 21-3401), aggravated kidnapping (K.S.A. 21-3421), and first degree murder (K.S.A. 21-3401). Defendant appeals his convictions and the State cross-appeals on a question reserved.
Before proceeding to the issues raised on appeal, a brief state ment of the facts is appropriate. On June 7, 1978, a fisherman observed a 55-gallon metal drum partially submerged in the shallow Marmaton River near Uniontown, Kansas. His curiosity aroused, the fisherman slit the canvas cover on the top of the drum and discovered it contained a human body wrapped in chains. The remains were identified as those of Larry Briggs, a Kansas City, Kansas, businessman who had been missing since May 8, 1978. The cause of death was two gunshot wounds to the back of the head.
TheK.B.I. conducted the investigation. On June 28, 1978, Jean Briggs, widow of the deceased, told a K.B.I. agent that she had hired the defendant to kill her husband. Charges were filed against both Jean Briggs and defendant. Subsequently, Jean Briggs pled guilty to second degree murder and to the conspiracy charge and testified for the State at defendant’s trial.
Defendant’s first issue on appeal is whether the trial court erred in permitting the State to cross-examine defendant as to the reason a prior employment terminated and in admitting an exhibit relative to such termination.
On direct examination defendant testified he had worked for United Parcel Service (U.P.S.) for three years. The following questions were then asked and answered:
“Q. And when did you terminate your employment there?
“A. In March of ‘78.
“Q. What did you do after working for United Parcel?
“A. Well, I wanted to get into a business for myself so I was going to go into business with my brother-in-law to learn the business and start one.
“Q. And that’s the carpet cleaning business?
“A. Yes.”
On cross-examination the following questions were asked and answered:
“Q. Now, I’m interested — why did you say you left U.P.S.?
“A. I quit U.P.S. to go into business with my brother-in-law, so I could go into business for myself.
“Q. That’s the reason you left?
“A. Yes.”
The State then produced a written statement signed by defendant wherein he admitted embezzling $681.22 from U.P.S. Defendant, upon further cross-examination, acknowledged his signature on the statement but denied he was involuntarily terminated as a result of the embezzlement. Defense counsel ob jected to the whole line of cross-examination relative to U.P.S. and to the admission of the statement. The objection was on the grounds of irrelevancy and unfair surprise in that the State had not previously disclosed the existence of the statement. The State contended the reason defendant left U.P.S. employment was a proper subject for impeachment. The State also noted that the statement was not obtained by law enforcement personnel, as it had been secured by U.P.S. as a result of its own internal procedures. As a rebuttal witness the State called the U.P.S. manager who stated that defendant had been fired as a result of the embezzlement and tied defendant’s statement into the termination. The U.P.S. manager had been endorsed as a witness prior to trial.
K.S.A. 60-420 provides:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
The direct examination of defendant left the impression that defendant had voluntarily terminated his U.P.S. employment, in essence, to better himself. On cross-examination this was inquired into and amplified. The statement was not taken by law enforcement officers. The subject was raised on direct examination and was legitimately an area of cross-examination. When defendant admitted making the statement, but denied the embezzlement was the cause of his termination, the State had the right to call the rebuttal witness and introduce the statement. This was a proper subject on which to impeach the witness. No error is shown.
Defendant’s next issue is whether the trial court erred in limiting defendant’s cross-examination of Jean Briggs. On cross-examination the following occurred:
“Q. Now, initially in this case, Mrs. Briggs, you were charged with the same crimes that Mr. Ramsey is charged with here, is that correct?
“A. Yes, sir.
“Q. And they were two Class ‘A’ felonies and a Class ‘C’felony, is that correct?
“A. I was charged with first degree murder, kidnaping and conspiracy.
“Q. And what did you plead guilty to?
“A. Second degree murder and conspiracy to commit first degree murder.
“Q. And you say you were sentenced on the 26th of March?
“A. The 23rd of March.
“Q. I’m sorry, the 23rd of March. Mrs. Briggs, are you aware that the Court has one hundred twenty days — ”
At this point the State objected on the ground of materiality. At a bench conference the following colloquy occurred between the court and defense counsel:
“THE COURT: I’m sure you don’t mean to imply that whoever the sentencing judge was in this case has made any kind of an arrangement?
“MR. BOAL: I’m just going to ask her if she is aware that the court has one hundred twenty days to modify the sentence.
“THE COURT: That’s not proper. You are attempting to leave the impression with the jury — you have every right to ask her if she had been promised anything, or had she been led to believe or whatever, but I don’t think it’s proper to involve the judge. If you have some evidence of that, then you ought to make it, but I don’t think you ought to try to leave the impression the judge has 120 days to modify the sentence — that one of the judges has been involved in some kind of an arrangement. I think that’s unfair to the judge and unfair to the jury, unless you have some evidence.
“MR. BOAL: Well, Your Honor, the judge certainly isn’t going to suffer by that, there’s no question about that. Now, I don’t know why, but the Court gets awfully sensitive when a witness is asked about it. If she doesn’t know, she can say that she doesn’t know.
“THE COURT: No, we have made a record and you can ask her whatever you want to about what arrangements have been made, but not that way.”
Defense counsel then cross-examined Mrs. Briggs as to her knowledge of when she would be eligible for parole and as to the difference in penalties between the original charges and those to which she entered her pleas of guilty.
Defense counsel contends he was denied the opportunity to inquire as to whether or not Jean Briggs had made some arrangement or deal with the State in exchange for her testimony. If such limitation on cross-examination had occurred this would be a serious matter. See State v. Corn, 223 Kan. 583, 575 P.2d 1308 (1978). The record above set forth, however, reveals that the defense counsel was free to inquire whether the witness had been offered any arrangement or deal in exchange for her testimony. The only limitation went to the form of the question. This point is without merit.
Defendant’s third and final issue on appeal is whether or not the trial court erred in denying his motion for a new preliminary hearing. In determining this issue some additional facts must be set forth.
Prior to the filing of any charges, Jean Briggs confessed her involvement in her husband’s death and implicated defendant Ramsey. On August 17,1978, a joint preliminary hearing was had before Judge Robert J. Foster relative to both Briggs and Ramsey. Briggs did not testify. Both were bound over for trial.
On October 13, 1978, defendant herein (Ramsey) filed the following motion:
“MOTION FOR NEW PRELIMINARY HEARING
“Comes now the defendant and moves the Court for an order granting defendant a new preliminary hearing for the reason that the Court repeatedly admitted evidence that clearly should have been excluded and which, in total effect, served to deprive the defendant of his right to a preliminary hearing.”
The motion was heard by Judge Harry G. Miller, who reviewed the transcript of the preliminary hearing and overruled the motion on December 26, 1978.
Although Jean Briggs did not testify at the preliminary hearing, Thomas Litchfield testified therein as to certain statements made by her which incriminated defendant Ramsey, said statements having been made after the charged conspiracy had ended. Defendant objected thereto on the ground that such testimony was hearsay as to him. Defendant requested a new preliminary hearing rather than discharge.
Preliminary hearings are held pursuant to K.S.A. 1979 Supp. 22-2902. This court stated the purposes of preliminary hearings in State v. Boone, 218 Kan. 482, 485, 543 P.2d 945 (1975), cert. denied 425 U.S. 915 (1976), as follows:
“Thus a preliminary examination affords the person arrested as a result of a complaint an opportunity to challenge the existence of probable cause for further detaining him or requiring bail. Also, a preliminary examination can give the accused general information about the nature of the crime charged and apprise him of the sort of evidence he will be required to meet when he is subjected to final prosecution in the district court (In re Mortimer, 192 Kan. 164, 386 P.2d 261). The object of a preliminary examination is not to determine the guilt or innocence of the accused. The examining magistrate has no power to acquit but only the power to discharge from custody. Such discharge is not a bar to another prosecution (State v. Bloomer, [197 Kan. 668, 421 P.2d 58 (1966), cert. denied 387 U.S. 911 (1967)]). The magistrate in a felony case has no jurisdiction to arraign the accused or to accept a plea of guilty of the charge (State v. Talbert, 195 Kan. 149, 402 P.2d 810, cert. den. 382 U.S. 868, 15 L. ed 2d 107, 86 S.Ct. 143). To iterate, a magistrate conducting a preliminary examination serves a limited function — to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it.”
See also State v. Holloway, 219 Kan. 245, 547 P.2d 741 (1976); State v. Dunnan, 223 Kan. 428, 573 P.2d 1068 (1978). In In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963), this court stated:
“At the outset it may be stated a preliminary examination is not a trial of a defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. Its principal purpose is the determination of whether a crime has been committed and whether there is a probability that the defendant committed the crime. Its main object is to apprise the accused of the nature of the crime or crimes charged against him, and to apprise him partially, at least, of the sort of evidence he will have to combat when he is subjected to formal prosecution in the district court.”
We have carefully examined the record and conclude that even with the objected-to portion of Litchfield’s testimony excised, there was sufficient circumstantial evidence to substantiate a finding of probable cause that the charged crimes had been committed by defendant Ramsey. We also note that the conviction appealed from arose from defendant’s second trial on the charges herein. Defendant’s first trial ended in the declaration of a mistrial on March 5, 1979, after the jury was unable to reach verdicts. The second trial was commenced on May 22, 1979, with verdicts being returned on May 31, 1979. The evidence adduced at both trials was apparently essentially the same. Under such circumstances defendant was as fully apprised of the evidence against him, and the nature of the charges, as one could ever expect to be. Certainly, defendant was not prejudiced by the preliminary hearing. We conclude this point is without merit.
On its cross-appeal the State contends the trial court erred in refusing to sentence defendant pursuant to K.S.A. 1979 Supp. 21-4618. The record relative to this issue is somewhat confusing. It appears, however, that the court held two sentencing hearings (July 5 and July 9, 1979, respectively). At the first hearing the court was under the impression that if any defendant used a firearm in the commission of the crime, then all defendants were subject to the mandatory sentencing provision of K.S.A. 1979 Supp. 21-4618. The court concluded that a firearm had been used in the crime. At the second hearing the court excised the reference to the mandatory sentencing statute from the journal entry. In so doing, the court acknowledged that it had operated on the above-stated erroneous assumption at the first hearing. The court noted that the instructions to the jury permitted conviction of first degree murder if the jury found:
“Larry Briggs was killed by defendant, or the defendant Lee Ramsey, aided, abetted or assisted in killing Larry Briggs, or procured someone else to do so;”
The court then explained why reference to the mandatory sentencing statute was being excised. The court’s rationale, in summarized form, was this. Under the foregoing instruction the jury could have convicted defendant of first degree murder without finding defendant personally fired the fatal shots. The logistics of the crime concerned the court. The deceased was a large man. The court questioned whether it was physically possible for defendant to have carried out the crime and the disposal of the body without assistance. There was no testimony as to the details of the crime. Jean Briggs testified that defendant told her no particulars of the crime and only advised her the matter had been taken care of. The court concluded it had heard the evidence and had a reasonable doubt as to whether defendant actually fired the shots. The court also noted that defendant’s parole eligibility would be the same whether or not reference was made to K.S.A. 1979 Supp. 21-4618.
The State contends there was no evidence that an accomplice was involved and that the court erred in failing to follow the mandate of K.S.A. 1979 Supp. 21-4618. Jean Briggs testified she hired defendant to kill her husband. Defendant denied involvement in the homicide and offered an alibi defense. Under such circumstances the State contends the court was required to sentence under K.S.A. 1979 Supp. 21-4618, which provides:
“(1) Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. This section shall not apply to any crime committed by a person under eighteen (18) years of age.
“(2) When a court has sentenced a defendant as provided above, the court shall state in the order of commitment to the secretary of corrections that the defendant has been sentenced pursuant to this section 21-4618.”
Defendant received a life sentence on the first degree murder conviction — the only sentence which may be imposed for a Class A felony. Clearly, the sentence imposed complied with section (1) of the above statute. The State’s complaint involves section (2) of said statute. This section requires that the order of commitment show that sentencing is pursuant to said statute.
The sentences herein were designated to run concurrently. Under the facts of this case the controversy appears to have some of the characteristics of the proverbial tempest-in-a-teapot. As far as parole eligibility is concerned, the relevant sections of K.S.A. 1976 Supp. 22-3717 are:
“(2) After expiration of one hundred twenty (120) days from the date of sentence, the Kansas adult authority is hereby granted the authority to place upon intensive supervised parole any inmate classified in the lowest minimum security classification who has achieved such status under rules and regulations promulgated by the secretary of corrections, except in the case where a death sentence or life imprisonment has been imposed as the minimum sentence or where the minimum sentence imposed aggregates more than fifteen (15) years, after deduction of work and good behavior credits. Persons confined in institutions shall be eligible for parole after fifteen (15) years if sentenced to life imprisonment or to a minimum term which, after deduction of work and good behavior credits, aggregates more than fifteen (15) years.
“(8) Notwithstanding any other provision of this section, any person sentenced pursuant to K.S.A. 1976 Supp. 21-4618 shall not be eligible for parole therefrom prior to serving the entire minimum sentence imposed, except that in the case of a person convicted of a class A felony and sentenced pursuant to K.S.A. 1976 Supp. 21-4618 shall not be eligible for parole prior to serving (15) years of the sentence imposed.”
It would appear that regardless of whether or not defendant was sentenced under the mandatory sentencing statute, parole eligibility would occur after defendant has served fifteen years of his sentence.
The State’s principal concern, as expressed at the sentencing hearings and on appeal, arises from the fact K.S.A. 1979 Supp. 21-4603 grants the district court the power to modify a sentence within 120 days after the conviction has been affirmed on appeal. The State repeatedly expresses the concern that whereas the trial judge herein would be unlikely to modify the sentence, if some other judge had the case (due to death, illness, retirement, etc., of the trial judge), then a sentence modification might occur. The State, for this reason, desires to have a specific finding that defendant used a firearm and that sentencing is pursuant to K.S.A. 1979 Supp. 21-4618. Were that contingency the sole problem, the issue would be insufficient to consider the matter on a question reserved.
Inherent in this cross-appeal, however, is a much larger issue which transcends the State’s immediate cause for concern. Whether or not defendant used a firearm in the commission of the crime for which he was convicted is a matter for the trial court to determine at sentencing. State v. Mullins, 223 Kan. 798, 577 P.2d 51 (1978). It is the clear legislative intent of K.S.A. 1979 Supp. 21-4618 to divest the trial court of alternatives to sentencing when a firearm is used by a defendant in the commission of one of the crimes specified in the statute.
When making the determination mandated by K.S.A. 1979 Supp. 21-4618 relative to the use of a firearm, the trial court may not disregard the evidence in order to circumvent the operation of the statute. The purpose of the statute would be totally emasculated if a trial court could avoid its operation by simply concluding that a defendant did not use a firearm in the commission of a crime even though the evidence unequivocally established otherwise.
Did the trial court in this case disregard the evidence and err as a matter of law in ultimately refusing to find that the defendant personally used a firearm? Certainly there was ample evidence to support a finding that defendant personally shot and killed Larry Briggs. Had the instruction permitted the murder conviction only if the jury found that the defendant personally killed the deceased, the court would have had no alternative but to sentence pursuant to K.S.A. 1979 Supp. 21-4618. The trial judge does not serve as a thirteenth juror who is free to redetermine the facts as found by the jury of twelve. Under the first degree murder elements instruction in this case (previously set forth in relevant part), the conviction does not constitute a finding that defendant personally used the firearm. The trial court’s rationale for not finding that defendant personally fired the fatal shots is based on logistical problems inherent in the manner in which the body was disposed of and speculation that assistance would have been required therein. The trial court heard the evidence. We, as the reviewing court, did not. Although it is an extremely close question, we cannot conclude, under the totality of the circumstances herein, that the trial court erred as a matter of law in refusing to find that defendant used a firearm.
On the appeal the judgment is affirmed. The cross-appeal of the State is not sustained. | [
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The opinion of the court was delivered by
Prager, J.:
This appeal is before the Supreme Court following the granting of a petition for review of a decision of the Court of Appeals which upheld the judgment of the district court determining that plaintiffs’ claim in a medical malpractice action was barred by the statute of limitations. The opinion of the Court of Appeals may be found in Bray v. Bayles, 4 Kan. App. 2d 596, 609 P.2d 1146 (1980).
The essential facts are undisputed and are set forth in detail in that opinion. The action was brought by the plaintiffs to recover damages for medical malpractice against the defendants, Hugh G. Bayles, M.D. and Ralph N. Sumner, M.D. The claimed acts of negligence allegedly occurred on March 6, 1976, in the treatment of complications arising in connection with the birth of a child to the plaintiff, Dorothea Mae Bray. Mrs. Bray suffered severe personal injuries and disabilities. In October of 1976, the plaintiffs, Dorothea Mae Bray and, her husband, Robert Bray, filed a medical malpractice action against Dr. Bayles alone in Sedgwick County. Dr. Bayles was personally served in Wilson County. On defendant Bayles’s motion, venue of the action was transferred to Wilson County. Thereupon, the plaintiffs dismissed the first action without prejudice over defendant’s objection. On October 26, 1977, plaintiffs filed a second action in Greenwood County where plaintiffs resided. In that action, Dr. Sumner was joined with Dr. Bayles as á defendant. The plaintiffs were unable to obtain personal service on the defendants in Greenwood County. Both defendants were residents of and practiced medicine at Fredonia in Wilson County.
On February 13, 1978, the summonses were mailed by plaintiffs’ counsel to Wilson County for personal service of process on the two doctors. On February 15, 1978, the Wilson County Sheriff served Dr. Bayles by leaving a copy of the summons and petition with Dr. Bayles’s receptionist at his office. On the same day, the sheriff served Dr. Sumner by leaving a copy of the summons and petition with his secretary at his office. The return of service on the summons for both doctors was identical, except for the name, and indicated that service had been obtained by leaving the summons at each doctor’s office. On February 23, 1978, Dr. Bayles filed a consolidated motion under K.S.A. 60-212(h), requesting a change of venue, and dismissal of the petition for failure to state a claim upon which relief may be granted, or in the alternative for a more definite statement. The sufficiency of the service of process was not challenged by Dr. Bayles. Attached to the motion, was Dr. Bayles’s affidavit stating that he had been “served with summons of process in Wilson County.” Plaintiffs’ counsel responded to this motion by filing a brief on March 2, 1978, opposing the motions.
On March 8, 1978, defendant Sumner filed a motion to dismiss the action against him for improper service of process, pursuant to K.S.A. 60-212(b)(5). He challenged the service of process on the basis that service was made on his secretary at his place of business rather than on defendant personally. Plaintiffs thereupon obtained new service of process by personal service on Dr. Bayles on March 9 and personal service on Dr. Sumner on March 10. Plaintiffs then filed a motion to amend the service of process of February 15, 1978, to cure the alleged defects in service which had been raised by defendant Sumner. Dr. Bayles, on March 10, 1978, filed a motion for leave to amend his previously filed 60-212(b) motion, seeking dismissal of the action against him on the basis of the insufficiency of service of process upon that defendant. On April 21, 1978, Dr. Bayles moved to dismiss the action on the additional grounds that the two-year statute of limitations had run on plaintiffs’ claim on March 6, 1978, before he had been properly served with process.
On May 31, 1978, District Judge J. Patrick Brazil, entered an order changing the venue of the action from Greenwood County to Wilson County, leaving undecided the other motions filed by the defendants. District Judge George Donaldson then considered the undecided motions in Wilson County. Judge Donaldson granted the motion of defendant Bayles to amend his 60-212(b) motion, permitting him to raise the issue of insufficiency of service of process as a defense, with the amendment relating back to the time the original motion was filed on February 23, 1978. Judge Donaldson then proceeded to consider the other pending motions. He denied plaintiffs’ motion to amend service of process. He sustained the motions of both defendants and dismissed the plaintiffs’ petition as barred by the statute of limitations. Plaintiffs appealed and the Court of Appeals affirmed the district court. The plaintiffs then petitioned this court for review, raising essentially the same points that had been raised before the Court of Appeals.
We will consider each of the points raised. On those points where we are in agreement with the conclusions of the Court of Appeals, we will refer to those pages of the opinion of Judge Abbott where the issues are discussed and determined.
I. Whether the district court erred in holding the statute of limitations was not tolled because of the absence of each of the defendants from the state at various times during the two year period.
The record shows that Dr. Bayles was out of the state five different times for a total of twenty-three (23) days, but he was not out of the state at any time after the plaintiffs filed their suit on October 26, 1977. Dr. Sumner was out of the state four different times for a total of either nine or ten days; he was out two days after the suit was filed. This point is discussed on pages 600 and 601 of the opinion of the Court of Appeals. (Bray v. Bayles, 4 Kan. App. 2d 596.) We have concluded that the Court of Appeals correctly decided this issue in holding that absence from the state, ás contemplated by K.S.A. 60-517, means beyond the reach of process from the Kansas courts. Under the circumstances of this case, the statute of limitations was not tolled even though both defendants were out of the state for the brief periods of time indicated above, since it was possible for the plaintiffs to obtain service on the defendants at all times. This could have been accomplished either by serving them under the long-arm statute, K.S.A. 60-308(b)(2), or by simply requesting an order from the district court allowing service to be made by leaving a copy of the petition and summons at the residence of each defendant as authorized by K.S.A. 60-304(a).
II. Whether the district court erred in holding that service of process upon the secretary or receptionist of each defendant at his office was insufficient as a basis to establish personal jurisdiction over each defendant.
This issue is discussed in depth on pages 603 through 608 of the opinion of the Court of Appeals. We agree with both the conclusions and rationale of the Court of Appeals in holding that service of process on both defendant Bayles and defendant Sumner was insufficient under the Kansas statutes. We further agree with the Court of Appeals in rejecting the contention of plaintiffs that defendant Sumner was estopped from denying the authority of his secretary to receive service of process. We adopt that portion of the opinion of the Court of Appeals.
Plaintiffs claim the more recent cases of Chee-Craw Teachers Assn v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979), and Marr v. Geiger Ready-Mix Co., 209 Kan. 40, 495 P.2d 1399 (1972), represent the modern trend of finding substantial compliance with service requirements when the defendant is made aware of the pendency of the action, and is not prejudiced by the method of service. Marr involved the substitution of a party defendant under 60-215(c), which allows amendment in pleadings to substitute the proper party when (1) he has received actual notice of the proceedings and his defense on the merits is not prejudiced, and (2) he knew or should have known that, but for the mistake of identity of the proper party, he would have originally been made a party. The Marr court noted that proper service of process was not in issue, and the cases revolving around 60-204 and 60-304(a) were held inapplicable (209 Kan. at 45, 51).
Applying the same rationale, Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. 561, would be inapplicable to a 60-304(a), personal service issue. In Chee-Craw, the school superintendent was served with copies of the petition and summons, which he mailed to the individual members of the school board the following day. This court found the service to be in substantial compliance with the applicable statute, K.S.A. 60-304(d), requiring service upon a school district by serving the clerk of the board. As in Marr, Chee-Craw Teachers Ass’n does not consider substantial compliance as it relates to personal service on an individual, and does not, therefore, change the law as set down in Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971); Thomas-Kilgariff General Insurance Agency, Inc. v. Haskell, 206 Kan. 465, 479 P.2d 900 (1971); or Briscoe v. Getto, 204 Kan. 254, 462 P.2d 127 (1969).
III. Whether the district court erred in refusing to permit the plaintiffs to amend their defective service of process obtained on February 15, 1978, to reflect the personal service on defendants two days after the statute of limitations had expired.
We agree with the Court of Appeals that the trial court did not err in denying the plaintiffs leave to make such an amendment. We approve the conclusions and reasoning of the Court of Appeals as set forth on pages 609 through 611 of that court’s opinion. There the various federal and Kansas cases are discussed in depth. The conclusions reached by the Court of Appeals are inescapable in view of K.S.A. 60-203 which provides in part as follows:
“60-203. Commencement of action. A civil action is commenced by filing a petition with the clerk of the court, provided service of process is obtained or the first publication is made for service by publication, within ninety (90) days after the petition is filed; otherwise the action is deemed commenced at the time of service of process or first publication. . . .” (Emphasis supplied.)
To permit an amendment of process by retroactively validating an entirely new service of process made more than ninety (90) days after the filing of the petition, would nullify the express provisions of K.S.A. 60-203 by extending the time for obtaining service of process beyond the ninety (90) day period provided for in that statute. We have concluded that the district court did not err in holding that the plaintiffs were not entitled to amend service of process upon the defendants, so that the personal service obtained on March 9 and 10, 1978, on the defendants could be related back to February 15, 1978, the date service of process was attempted but not obtained on the defendants.
IV. Whether the district court erred in its failure to find that defendant Bayles had waived the defense of insufficiency of the service of process attempted on February 15, 1978, and in permitting defendant Bayles to amend his motion previously filed pursuant to K.S.A. 60-212(h).
To place this issue in proper perspective, we should set forth in detail the motion filed on February 23, 1978, by defendant Bayles for change of venue, to dismiss, or for a more definite statement. That motion was as follows:
“DEFENDANT BAYLES’ MOTION TO DISMISS OR TRANSFER OR FOR MORE DEFINITE STATEMENT
“COMES NOW defendant Hugh G. Bayles, M.D., and moves the Court to dismiss this action on the ground that venue is improper in the District Court of Greenwood County, Kansas, in that defendant is a resident of Wilson County, Kansas, practices medicine in Wilson County, was served with process in Wilson County, and the action which plaintiffs’ petition indicates forms the basis of the alleged cause of action took place in Wilson County, Kansas. In the alternative, this defendant moves that the action be transferred to the District Court of Wilson County, Kansas as provided by K.S.A. 60-6111.
“This defendant further moves that in the event the action against him is not dismissed for improper venue, the petition be dismissed for failure to state a claim upon which relief may be granted, or in the alternative that plaintiffs be required to state the alleged claim in more definite and certain language, as the present allegations are so vague that proper response is impossible.” (Emphasis supplied.)
Attached to this motion was the following affidavit signed by the defendant Bayles and subscribed and sworn to before a notary public.
“AFFIDAVIT
“The undersigned, Hugh G. Bayles, of lawful age, after first being duly sworn, upon his oath, avers and states as follows:
“1. That he is a resident of Fredonia, Wilson County, Kansas.
“2. That he was served with summons of process in Wilson County, Kansas, and has not been served with summons in Greenwood County, Kansas, in connection with the above-styled case.
“3. That all professional medical care and treatment of the plaintiff, Dorothea Mae Bray, rendered by affiant was in Fredonia, Wilson County, Kansas, and that affiant never at any time rendered any care and treatment of the said plaintiff in Greenwood County, Kansas.
“4. That affiant does not have a place of business or employment in Greenwood County, Kansas.
“Further affiant saith not.
“/s/ Hugh G. Bayles
“HUGH G. BAYLES”
(Emphasis supplied.)
The Court of Appeals, after considering the federal decisions and the discussions in 5 Wright & Miller, Federal Practice and Procedure: Civil § 1389 (1969), concluded that the district court did not abuse its discretion in allowing defendant Bayles to amend his original 60-212(b) motion to add a motion for dismissal of plaintiffs’ action because of the insufficiency of service of process. (4 Kan. App. 2d at 601-03.) Specifically, the Court of Appeals stated that K.S.A. 60-212(g) and (h) seem to prohibit a second 212(b) motion, or an answer after a 212(b) motion has been decided, raising insufficiency of process or insufficiency of service of process as a defense; but it does not preclude the amendment of the initial motion to include additional grounds, if the request to do so is timely made. We do not quarrel with the conclusion that a district court may, in a proper case, permit the amendment of a K.S.A. 60-212(b) motion to include additional grounds, if the original motion has not yet been determined, the request to do so is timely made, and the amendment can be made without prejudice to the opposing party. We do, however, disagree with the conclusion of the Court of Appeals that the trial court did not commit error in allowing such an amendment by defendant Bayles under the circumstances present in this case.
In defendant Bayles’s original K.S.A. 60-212(b) motion, which is set forth above, the defendant states, without equivocation, that venue is improper in the district court of Greenwood County, because the defendant is a resident of and practices medicine in Wilson County and was served with process in Wilson County. The affidavit of Dr. Bayles attached to his motion further confirms that he was served with service of process in Wilson County, Kansas. K.S.A. 60-603, which establishes venue in actions against residents of this state, provides that an .action may be brought in the county in which the defendant has a place of business or employment if said defendant is served therein. The import of the allegations of the motion and affidavit is that the defendant Bayles is not only a resident of Wilson County but that his place of business is in Wilson County and, since he was served with process in Wilson County, the proper venue of the action is there. We hold it was an abuse of discretion for the district court to permit defendant Bayles to deny in the amended motion that he was properly served with process in Wilson County after alleging service of process in Wilson County for the purpose of fixing the venue in Wilson County. By taking the position he did in his motion, defendant Bayles, in our judgment, clearly waived any defects in the service of process in Wilson County and is bound thereby.
In addition, we have concluded that, under all of the circumstances, the plaintiffs were prejudiced by the action of the district court in permitting defendant Bayles to raise the issue of insufficiency of service of process by amending his K.S.A. 60-212(h) motion to allege that defense after the statute of limitations had run. When defendant Bayles’s motion was filed on February 23, 1978, the statute of limitations had not run on the plaintiffs’ claim against that defendant. If the defendant Bayles had raised the issue of insufficiency of service of process in his original 60-212(h) motion, plaintiffs’ counsel could have proceeded to obtain proper personal service upon defendant Bayles. We cannot accept the proposition that defendant Bayles, after failing to challenge the sufficiency of the service of process, should be permitted to do so later after the statute of limitations had run on the plaintiffs’ claim. As noted above, we agree that the federal authorities permit amendment of 60-212(h) motions, if the request to do so is timely made. But as noted in the opinion of the Court of Appeals, such an amendment is permitted only if the Court is satisfied that the adverse party will not be prejudiced if expansion of the motion’s scope is allowed. The plaintiffs were clearly prejudiced in this case by the trial court’s permitting the amendment after defendant Bayles had taken a position that there were no deficiencies in the service of process. We have concluded that it was prejudicial error for the district court to permit the amendment under the circumstances. For the reasons set forth above, we hold that the district court erred in dismissing plaintiffs’ claim against defendant Bayles on the ground that it was barred by the statute of limitations.
The judgment of the district court dismissing the plaintiffs’ claim against defendant Bayles is reversed and the case is remanded to the district court with instructions to proceed to a determination of the plaintiffs’ claim against that defendant. We affirm the judgment of the district court dismissing the plaintiffs’ claim against defendant Sumner on the basis that, as to that defendant, the plaintiffs’ claim was barred by the statute of limitations. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment action wherein the plaintiff challenges the constitutionality of an ordinance of the City of Overland Park, which places certain restrictions on merchants selling or displaying items identified with drug usage. More particularly, the ordinance prohibits sale or display of such items on premises open to minors. The trial court upheld the ordinance and plaintiff appeals therefrom.
Plaintiff is the operator of a business establishment which is directly affected by the ordinance. Plaintiff attacks the ordinance on the grounds that it is (1) overbroad, (2) vague, and (3) an infringement on the right of commercial speech.
In the interest of brevity, only those portions of the ordinance
necessary for the determination of the issues are reproduced herein.
“ORDINANCE NO. RD-1048
“WHEREAS, the Governing Body of the City of Overland Park, Kansas, has determined and hereby finds that a problem exists within its territorial limits involving the exposure of children of elementary, junior high school and high school age to the use of drugs and controlled substances other than as authorized by law; and
“WHEREAS, the Governing Body of the City of Overland Park has determined and hereby finds that the display and availability for sale of certain instruments hereinafter enumerated and simulated drugs and simulated controlled substances hereinafter defined contribute to the usage of drugs and controlled substances by the youth of the community by creating an atmosphere of apparent condonation by the community; and
“WHEREAS, the promotion and sale of products containing substances which may be harmless and inert in themselves, but which are packaged or designed to simulate controlled substances or drugs, are harmful in that they promote and encourage entry into the drug culture and foster respectability for drug use and abuse; and
“WHEREAS, the Governing Body of the City of Overland Park deems it to be in the best interests of the health, safety and welfare of its youth to make the use and abuse of drugs and controlled substances difficult by limiting the availability of necessary instruments within the City;
“NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF OVERLAND PARK, KANSAS, that the following amendments and additions be made to the Overland Park Municipal Code, to wit; SECTION L Overland Park Municipal Code Section 11.56.130 is hereby amended to read as follows:
“11.56.130. Definitions.
As used in this article:
“A. ‘Controlled substance’ means any drug or substance included in Schedules I through V of the Uniform Controlled Substances Act found in Chapter 65, Article 41 of the Kansas Statutes Annotated.
"P. ‘Instrument’ means a device designed for use, or intended for use in ingesting, smoking, administering or preparing marijuana, cocaine, phencycledine, opium or any derivative thereof, or any other controlled substance. “For purposes of this subsection the phrase ‘intended for use’ shall refer to the intent of the person selling, offering to sell, dispensing, giving away or displaying the instrument herein defined.
“In determining whether an item constitutes an ‘instrument,’ a court may consider the following:
“(a) Whether a person or business establishment charged with violating this section is a licensed distributor or dealer of tobacco products under Chapter 79, Article 33 of the Kansas Statutes Annotated.
“(b) Expert testimony as to the principal use of the devices, articles, or contrivances claimed to be instruments.
“(c) Evidence concerning the total business of a person or business estab lishment and the type of devices, articles, contrivances or items involved in the business.
“(d) National and local advertising concerning the use of the devices, articles, or contrivances claimed to be instruments.
“(e) Evidence of advertising concerning the nature of the business establishment.
“Q. ‘Minor’ shall mean any person who has not attained 18 years of age.
“R. ‘Premises open to minors’ means any business establishment which sells its wares or merchandise to minors or which permits minors to enter into its place of business.
“S. ‘Simulated drugs’ and ‘simulated controlled substances’ are any products which identify themselves by using a common name or slang term associated with a controlled substance or indicate by label or accompanying promotional material that the product simulates the effect of a controlled substance or drug.
“T. ‘Place of display’ means any museum, library, school or other similar public place upon which business is not transacted for a profit.
“W. ‘Premises’ means a business establishment and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of patrons.
“SECTION 2. Overland Park Municipal Code Section 11.56.185 is hereby added and shall read as follows:
“11.56.185 Control of instruments used for inhaling or ingestion of controlled substances or drugs and control of simulated drugs and simulated controlled substances.
“A. Sale and display prohibited. It shall be unlawful for any person, firm or corporation to sell, offer to sell, dispense, give away or display any instrument or simulated controlled substance or simulated drug in or upon any premises which: (a) are premises open to minors, unless the instruments, simulated controlled substances or simulated drugs are kept in such part of the premises that is not open to view by minors or to which minors do not have access; or (b) are in close proximity to a school. Provided, however, that display of any such items at a place of display for educational or scientific purposes shall not be unlawful.”
The general rules relative to determination of the constitutionality of statutes were set forth as follows in City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. ¶¶ 1-5, 598 P.2d 1051 (1979):
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.”
' “In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
“Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.”
“The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, other wise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere.”
“Once a subject is found to be within the scope of the state’s police power, the only limitations upon the exercise of such power are that the regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose.”
We turn now to the specific issues raised on appeal. We will first consider whether the ordinance is overbroad.
The parties agree a legitimate goal of the defendant City is to discourage drug usage among its youth. Plaintiff argues that the means chosen by the City of Overland Park to address the drug abuse problem is unduly oppressive by penalizing legitimate business activity without demonstrating that the limitations on the sale and display of the “paraphernalia” items will have the intended effect of discouraging drug use.
In Delight Wholesale Co. v. City of Prairie Village, 208 Kan. 246, Syl. ¶ 2, 491 P.2d 910 (1971), this court held:
“The police power is wide in scope and gives the governmental body broad powers to enact laws to promote the health, morals, security, and welfare of the people. Broad discretion is vested in the governing body to determine for itself what is deleterious to the health or morals, or which is inimical to public welfare. However, the governing body does not possess plenary power to pass legislation that is arbitrary, oppressive, and capricious, and which bears no substantial relationship to the public safety and welfare.”
The guarantee of due process demands only that the statute shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a real and substantial relation to the objective sought to be obtained. Nebbia v. New York, 291 U.S. 502, 78 L.Ed. 940, 54 S.Ct. 505 (1934).
Plaintiff, relying on Nebbia, contends there is no evidence that the ordinance herein, by restricting “head shops” as they are commonly referred to, will achieve the desired purpose — discouraging drug usage among the youth of the city.
In upholding the ordinance against the challenge of over-broadness, the trial court reasoned:
“Overland Park did not enact the ordinance in a vacuum. The city held public hearings on the proposed ordinance and elicited testimony that the easy avail ability of the paraphernalia items addressed by the ordinance represents a potential harm to a significant number of youths. The display and sale of these items in the manner prohibited by the ordinance was thought to create ‘an atmosphere of apparent condonation by the community’ toward the use of drugs and controlled substances [Ord. No. RD-1048], In essence, the ordinance was written to force minors out of the ‘head shops’, and thus eliminate the particular evil posed by commercially merchandising paraphernalia in their presence.
“The plaintiff points out that there was no statistical evidence that forbidding access of minors to these shops will achieve the intended effect. But the law does not require scientific studies to support a legislative decision. Ginsberg v. New York, 390 U.S. 629, 641-643, 20 L.Ed.2d 195, 88 S.Ct. 1274 (1968). It should also be pointed out that the ordinance does not prohibit the sale of paraphernalia items to minors outside the premises of the ‘head shop’. Hence, an itinerant peddler of such merchandise may hawk his goods outside the schoolhouse door without violating this ordinance. Nor does the ordinance prohibit the possession of such items by minors or their gift or display anywhere outside the ‘premises’ as defined in the ordinance. Furthermore, as the plaintiff points out, the purchase and use of drugs by the youth of the community is not dependent upon the availability of the paraphernalia sold in plaintiff’s store. Thus, it may be questioned whether this ordinance will have a significant impact on drug use in Overland Park. ‘But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it’. Williamson v. Lee Optical Co., 348 U.S. 483, 99 L.Ed. 563, 75 S.Ct. 461 (1955).
“Although the ordinance in question may have a substantial impact upon the operations of the ‘head shop’ trade, it does not foreclose them from doing business entirely. Moreover, the legislative judgment that minors should not be exposed to the sale or display of drug related paraphernalia and that the present ordinance is a reasonable method of safeguarding the public interest by discouraging drug use should be accorded deference. Thus, this court must find, as a whole, the restrictions imposed by ordinance RD-1048 bear a reasonable relationship to a valid exercise of the police power granted to municipalities under the Home Rule Amendment.”
We agree and adopt the aforecited portion of the trial court’s memorandum opinion.
We will next consider whether certain provisions of the ordinance are impermissibly vague.
The trial court carefully and ably analyzed this issue and concluded the ordinance was not unconstitutionally vague. We agree and adopt the trial court’s memorandum opinion relative to this issue, as follows:
“Due process requires that criminal ordinances be reasonably definite as to the persons and conduct within their scope. In determining whether an ordinance is void-for-vagueness two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.
“In Kansas the test to determine whether a criminal statute or ordinance is vague or indefinite is whether its language conveys ‘a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice’. City of Altamont v. Finkle, 224 Kan. 221, 223, 579 P.2d 712 (1978), as cited in City of Baxter Springs v. Bryant, supra at 393.
“An ordinance that either forbids or requires an act in vague terms that men of common intelligence must guess at its meaning and differ as to its application lacks the first essential of due process of law. See e.g., Connolly v. General Const. Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126 (1926); and State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962). Furthermore, when a statute creates a new offense it must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. State v. Carr, 151 Kan. 36, 98 P.2d 393 (1940). Finally, in creating an offense that is not a crime at common law, the legislature must make the statute or ordinance sufficiently certain to show what was intended to be prohibited and punished, otherwise it will be void for uncertainty. State v. Davidson, 152 Kan. 460, 105 P.2d 876 (1940). These rules have been recognized and applied in several recent cases. State v. Torline, 215 Kan. 539, 527 P.2d 994 (1974); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972).
“Although both Kansas and United States Supreme Court cases have said that the law must be clear to the ‘average man’ or to ‘men of common intelligence,’ the rule should be more properly qualified to require fair warning to those potentially subject to it. For example, if a penal statute is addressed to those in a particular trade or business, the terms used in the statute should be sufficiently defined to enable one in that trade or business to apply it correctly. The Supreme Court recognized this application of the rule in Hygrade Provision Co. v. Sherman, 266 U.S. 497, 69 L.Ed. 402, 45 S.Ct. 141 (1925), where the court upheld the constitutionality of a law prohibiting the sale of falsely labeled kosher meats. The court responded to the argument that ‘kosher’ was too indefinite a standard by focusing on the intent requirement of the statute and by finding that ‘kosher’ has a meaning well enough defined to enable one engaged in the trade to correctly apply it. . . .’ 266 U.S. at 502. Likewise, in United States v. Vuitch, 402 U.S. 62, 28 L.Ed.2d 601, 91 S.Ct. 1294 (1971), the court rejected the contention that an abortion statute was vague because of the ‘necessary for the preservation of the mother’s life or health’ exception for doctors. The court observed that ‘whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.’ 402 U.S. at 72.
“In the present case it is sufficient to say that the ordinance meets constitutional muster if a person of common intelligence engaged in the business of selling the type of merchandise regulated by the ordinance could examine the ordinance and not be confused by its requirements. The plaintiff, of course, argues that the two types of goods subject to the sale or display prohibitions, ‘instruments’ and ‘simulated drugs’, are so vaguely defined as to provide no warning of what specific items are restricted. A reading of the ordinance indicates that this is not the case. It is this court’s conclusion that the ordinance’s prohibitions are suffi ciently clear to provide any person of common intelligence the fair warning of what is forbidden demanded by the constitution.
“The plaintiff first attacks the definition of ‘instruments’ provided in the ordinance. The definition reads ‘a device designed for use or intended for use in ingesting, smoking, administering or preparing . . . any . . . controlled substance.’ [Ord. RD-1048, § 11.56.130 (P)]. The ordinance does not define ‘device’ or ‘designed for use’ and, according to the plaintiff, that omission would make it impossible for any person to know with certainty or consistency what could be sold or displayed. The simple answer is that under the ordinance any device intended by the seller for use in ‘ingesting, smoking, administering or preparing . . . controlled substance[s]’ is prohibited. By focusing on the intent of the seller, the ordinance avoids many of the vagueness problems faced by the ordinance in Riddle v. Clack, supra, [Case No. CA-3-77-0525-D (N.D. Tex. 1977)] and many of the hypothetical raised by the plaintiff in his arguments to this court. The indefiniteness of just referring to the intent of the seller is avoided by the enumeration of five criteria that lend themselves to a determination of what a particular item is to be used for and what the seller ‘intends’ their use to be. [Ord. RD-1048, § 11.56.130 (P) (a) (e)].
“Admittedly there may be a gray area where a proper determination of the intent of the seller cannot be made even though the product being sold is capable of being put to a drug related use. For example, assume hypothetically that the plaintiff’s store in this case sells only records and unmarked rolling papers. Because rolling papers have both legitimate and non-legitimate uses, the intent of the seller becomes the key element of a violation. That intent must be proved by either direct testimony on the point or inferred using evidence of the type enumerated in § 11.56.130 (P) (a) (e) of the ordinance. Where, as in this hypothetical case, the advertising of the store and the promotional materials accompanying the product do not advocate illegal use or indicate that the product can be used with controlled substances, it would be very difficult if not impossible to prove the intent of the seller without direct testimony. Thus, the prosecution in this hypothetical would likely be left with only testimony indicating the legitimate and illegitimate uses of rolling papers, and that is not enough to satisfy the ordinance’s intent requirement.
“This gray area is erased when the products restricted to minors are examined in terms of a pattern of merchandising. When the hypothetical unmarked rolling papers are sold or displayed in conjunction with other merchandise identified with drug use the problems associated with inferring intent to the seller lessen. And when the advertising and other promotional material concerning the store and its merchandise clearly indicate a drug orientation it becomes very fair to infer an intent that those products be used in a drug related way to the seller. The factors enumerated in the ordinance to infer intent clearly indicate that where items that have both legitimate and illegitimate uses are included, it is the merchandising of those items in a manner linked with drug use that provides the necessary indicia of intent that converts an otherwise lawful sale into an unlawful one. These factors are clearly set out and provide fair warning to the merchant who seeks to judge whether a particular device he offers for sale will be deemed an ‘instrument’ under the terms of the statute;
“Finally, the plaintiff attacks the prohibition on the sale or display of products identified as ‘simulated drugs’ or ‘simulated controlled substances’. This provision in the ordinance is not tied to the intent of the seller or to the list of factors that are considered when determining whether a device is an instrument. Rather, they are defined as ‘products which identify themselves by using a common name or slang term associated with a controlled substance or indicate by label or accompanying promotional material that the product simulates the effect of a controlled substance or drug.’ Ord. RD-1048, § 11.56.130 (S). (Emphasis added) The plaintiff points out that the literal language of the ordinance would prohibit the presence of a minor on the premises where a soft drink commonly called ‘coke’ is sold. While this may be true, it is a ‘familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ Holy Trinity Church v. United States, 143 U.S. 457, 459, 36 L.Ed. 226 (1892) and Intoxicating Liquor Cases, 25 Kan. 751, 763, 37 Am. Rep. 284 (1881). Thus the literal language of the ordinance should not be read as regulating the sale of products not identified with drug related activities.
“Nevertheless, the plaintiff has a good point in his argument that the definition of ‘simulated drug’ as a product identified ‘by using a common named or slang term associated’ with controlled substance is indefinite when standing alone. Perhaps the product might have been better defined if the definition had read in the conjunctive ‘and’ instead of the disjunctive ‘or’. In that case the common name or slang term would have to be accompanied by a label or promotional material that indicated a simulated effect of a drug or controlled substance. But this is not a defect that would require the regulation on simulated drugs be stricken from the ordinance. Even the terms of a penal ordinance should be read in pari materia with the other provisions of the ordinance in order to determine the precise scope of the conduct prohibited. Clearly, the words in a statute or ordinance must be construed in light of their context and the purpose of the enactment. Natural Gas Pipeline Co. v. Commission of Revenue & Taxation, 163 Kan. 458, 466, 183 P.2d 234 (1947). Here, a ‘simulated drug’ must be interpreted to mean, as a matter of common sense, those products offered by a merchant that purport to simulate the effect of a controlled substance or otherwise resemble and are identified, albeit by slang terms, as a controlled substance. Any person of common intelligence reading the ordinance as a whole in relation specifically to the provision on ‘simulated drugs’ could reach this conclusion without any mental gymnastics and would receive fair warning as to the conduct regulated.
“The final aspect of plaintiff’s void-for-vagueness argument is that the ordi nance creates the possibility of arbitrary and discriminatory enforcement. An ordinance must provide adequate guidelines for and constraints upon those who apply it; judges, juries, and law enforcement officers must have some legally fixed standards by which they may decide what is prohibited and what is not in each particular case. Smith v. Goguen, 415 U.S. 566, 39 L.Ed.2d 605, 94 S.Ct. 1242 (1974); and Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L.Ed.2d 110, 92 S.Ct. 839 (1972). In the present case the challenged ordinance was very narrowly drawn. It applies only to commercial establishments and to fairly well defined products. It does not ‘cast a large net’ like the imprecise terms of the vagrancy ordinance in Papachristou nor does it require the type of vague and subjective judgments similar to the required determination of what constituted ‘contemptuous’ treatment of the flag found in Smith v. Goguen, supra. The challenged ordinance does provide the constitutionally required fair warning of what is prohibited and adequate standards by which that conduct may be measured.”
The only addition needed is reference to a case decided by this court subsequent to the opinion of the trial court. In the case of In re Brooks, 228 Kan. 541, 618 P.2d 814 (1980), this court recognized: (1) Upon challenges for vagueness greater leeway is afforded statutes regulating business than those proscribing criminal conduct; and (2) a statute is not to be struck down only because marginal cases could be put where doubts might arise.
The final issue on appeal is whether prohibiting the display of the restricted items violates any First Amendment rights of commercial speech.
Commercial advertising has been held entitled to at least some degree of protection under the First Amendment, although the extent of that protection is undefined. Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 48 L.Ed.2d 346, 96 S.Ct. 1817 (1976). In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 56 L.Ed.2d 444, 98 S.Ct. 1912 (1978), the United States Supreme Court held:
“Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protection only recently. In rejecting the notion that such speech ‘is wholly outside the protection of the First Amendment,’ Virginia Pharmacy, supra, at 761, we were careful not to hold ‘that it is wholly undifferentiable from other forms’ of speech. 425 U.S., at 771 n. 24. We have not discarded the ‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” pp. 455-456.
Before proceeding further we must consider whether the merchant’s display of the restricted items on his premises is commercial speech. No authority is cited by the parties relative to this question.
The ordinance prohibits the display of the restricted items in or upon any premises open to minors unless the same are kept in a part of the premises that is not open to view by minors or to which minors do not have access. Clearly, display is used in its ordinary sense, which connotes an exhibiting or showing of something. Webster’s Third New International Dictionary 654. This is in harmony with § 11.56.130 (T) of Ord. RD-1048, which provides:
“ ‘Place of display’ means any museum, library, school or other similar public place upon which business is not transacted for a profit.”
as well as with § 11.56.185 (A) of Ord. RD-1048, which states:
“Provided, however, that display of any such items at a place of display for educational or scientific purposes shall not be unlawful.”
This is not commercial advertising — only the physical placement of items on the business premises is involved. This is not commercial speech. The only case dealing with this issue that has been located is Tobacco Road v. City of Novi, 490 F. Supp. 537 (E.D. Mich. 1980), which reaches this same result at 544-545. We must conclude the ordinance does not violate any First Amendment right of commercial speech.
Before closing, we note that the ordinance in question is far less restrictive than the “Model Drug Paraphernalia Act” drafted by the Drug Enforcement Administration of the United States Department of Justice. The act has been adopted by a number of cities and states. The model act in effect outlaws “head shops.” The model act has been substantially upheld wherever challenged. For example, see Record Revolution No. 6 v. City of Parma, 492 F. Supp. 1157 (N.D. Ohio 1980), and The Casbah, Inc. v. Thone, No. 80-0-271 (D. Neb. 1980).
We hold that Ordinance RD-1048 is constitutional as to all of its challenged aspects.
The judgment is affirmed.
“ Because of the ordinance's narrow application to a ‘business establishment’ that operates from ‘premises’, the due process requirement of the United States Constitution would be met by an ordinance imparting fair warning to a person in that trade or business. For the purposes of this decision, however, it is the opinion of this court that the ordinance meets the stricter ‘any person of common intelligence’ standard.”
“ The plaintiff has suggested that a literal reading of the ordinance would prevent a 17-year old from buying his father a pipe for Christmas, a 14-year old art student from buying pipe cleaners for an art project and a 16-year old boy from buying a razor to shave. Plaintiff’s Brief at 21. While such items can be converted to drug related uses, the ordinance’s definition of instruments as limited by the intent of the seller effectively eliminates from coverage of the ordinance the sale of items that have legitimate non-drug related uses and that are purchased for those legitimate uses.”
“ The plaintiff also objects to the ordinance’s definition of an ‘instrument’ as a ‘device designed for use. . .’ contending that no definition of ‘device or designed for use’ is offered However, the five criteria used in determining intent also apply to a determination that a device is ‘designed for use’ and this provides a satisfactory standard to determine whether a particular item is ‘designed for use’ within the meaning of the ordinance.” | [
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The opinion of the court was delivered by
Fromme, J.:
Kenneth H. Hutchison was tried and convicted on two counts of aggravated robbery and one count of aggravated burglary. He was acquitted on a murder charge. His codefendant, John Purdy, was tried and convicted in a joint trial on all similar counts including murder. Separate appeals were perfected. We are concerned here with the appeal of Kenneth H. Hutchison. We will consider the four points raised but first the facts.
On September 1, 1977, in the evening, John Purdy, Jack Jeffries, Jessica Finn and the defendant were riding around in Wichita and drinking beer. Jeffries was driving his father’s pickup truck. Jessica advised the others of a large sum of cash which was said to be in the home of Robert Humphrey on West Kellogg in Wichita. The four proceeded to the home of Robert Humphrey. Jeffries and Finn remained in the vehicle. The defendant Hutchison cut the screen to open the screen door. Purdy then kicked the door open and entered the house. Purdy was armed with a .44 magnum handgun and Hutchison was armed with a .357 handgun.
Unknown to Purdy and Hutchison, Robert Humphrey and his fiancee, Nadine Schoenhoff, were in the house and were just retiring. It was approaching midnight. Humphrey and Schoenhoff heard the door being forced open. Humphrey obtained a handgun from near his bed and proceeded to crawl into the next room in an attempt to surprise the intruders. He had reached a position beside a desk when Purdy located him. Purdy reached over the desk and shot him in the back. Humphrey reacted by rising to a kneeling position, whereupon Purdy shot him in the chest. Humphrey was killed. Purdy removed Humphrey’s wallet from his person.
Hutchison and Purdy next approached Nadine Schoenhoff who had remained in the bedroom and was screaming hysterically. They asked Schoenhoff where the money was and when she denied knowledge of any money Purdy ordered her to lie on the floor and keep her eyes closed. Apparently unsatisfied with her actions, Purdy then kicked her in the face, grabbed her purse, and both he and Hutchison fled to the truck. The four individuals then drove away. Later they divided the cash and Hutchison and Jessica disposed of the wallet and purse.
Two weeks later Hutchison was picked up on a juvenile court probation infraction. This eventually led the police to information implicating John Purdy. Written confessions were obtained from both Hutchison and Purdy. These young men were jointly tried and convicted. Separate appeals followed, and we are presently concerned with the appeal of Hutchison.
It should be noted that in a criminal proceeding a previous voluntary statement by the accused relative to the offense charged is admissible only as against the accused under K.S.A. 60-460(f) as an exception to the rule which excludes hearsay evidence. State v. Sullivan & Sullivan, 224 Kan. 110, Syl. ¶ 3, 578 P.2d 1108 (1978).
At the joint trial of Purdy and Hutchison the confessions of both codefendants were read in evidence. These confessions form the basis for the first claim of error. Neither of the defendants testified at trial and the trial court, recognizing the limitations on the use of confessions as set forth in Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968), required the State to delete all references to the other codefendant in the respective confessions before permitting the statements to be read in evidence. So, we are confronted for the first time in Kansas with the question of when, if ever, and under what conditions it may be proper to admit confessions from which references to codefendants have been deleted.
The process of editing a codefendant’s confession by excising references to another accused is referred to in some cases as “redaction.” (It will be referred to herein as editing or excising.) When the Bruton rule was first declared the United States Supreme Court in footnote No. 10, appearing at 391 U.S. 134, recognized the existence of the practice of editing confessions as a viable alternative to holding separate trials for codefendants when one or more of them had given statements or confessions. The footnote did not indicate either approval or disapproval of the practice. In the case of State v Purdy, 228 Kan. 264, 615 P.2d 131 (1980) this court approved the admission of Hutchison’s confession from which all reference to Purdy had been deleted. At this joint trial both confessions were edited to remove reference to the other codefendant and were admitted with limiting instructions for the jury to consider each confession only as to the guilt or innocence of the confessor.
In Purdy Mr. Justice Herd sets forth an exhaustive review of both federal and state cases to illustrate when the editing of a confession by excision may be acceptable as a viable alternative to separate trials for codefendants if one or more of them have given statements or confessions which are to be used at a joint trial. Without here reviewing all the cases covered in Purdy the following guidelines seem to emerge:
(1) Whether editing a confession or statement by excision will successfully avoid a violation of the rule in Bruton v. United States, 391 U.S. 123, must be determined on a case by case basis. See cases cited in State v Purdy, 228 Kan. 264, 268-69, 615 P.2d 131 (1980).
(2) It is elementary that if the codefendant testifies at the trial the accused’s right of confrontation and cross-examination is satisfied and rules excluding the statement of the codefendant do not apply. Cantrell v. State, 206 Kan. 323, 324, 478 P.2d 192 (1970), cert. denied 402 U.S. 924 (1971).
(3) Editing may be proper when any suggestion of the codefendants’ involvement in the crime charged can be eliminated from the confession or statement. United States v. Hernandez, 608 F.2d 741, 749 (9th Cir. 1979).
(4) In order for editing to be proper it should not be revealed to the jury that the statement is in excised form. United States v. Danzey, 594 F.2d 905 (2nd Cir.), cert. denied 441 U.S. 951 (1979).
(5) Generally, an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant. United States v. Belle, 593 F.2d 487, 493 (3rd Cir. 1979).
(6) An edited statement of a codefendant if clearly inculpatory as to the defendant and vitally important to the prosecution’s case against the defendant should not be admitted in evidence. United States v. Knuckles, 581 F.2d 305, 313 (2nd Cir.), cert. denied 439 U.S. 986 (1978).
An examination of the confession of John Purdy clearly indicates that Kenneth Hutchison’s Sixth Amendment rights of cross-examination and confrontation were not materially affected by permitting the edited version of Purdy’s confession to be read to the jury at the joint trial. The participants in the evening’s festivities included four persons who were acting in concert. When references were made in Purdy’s confession to the names of those who participated, the name of Hutchison could be deleted, leaving the other names without affecting the grammar or the substance of the edited confession. After editing the confession by striking all reference to Hutchison the pronouns “we” and “they” were properly used for they referred to Purdy, Jack Jeffries and Jessica Finn who participated in these crimes.
In addition we note that each statement constituted a full and complete confession by the respective confessor. After the editing neither statement implicated the other codefendant nor added anything to the material facts included in the confession of the other person. The only connection between these two confessions was a similar recitation of the facts which gave the times and places of the events of the evening. This added little, if any, to the facts previously established by the defendant’s own confession. In a joint trial of codefendants it is possible for error in admitting in evidence the confession of a codefendant to be held harmless beyond a reasonable doubt. Generally an instruction has to be given to the jury limiting the use and purpose of the confession to a determination of the guilt of the confessor. Cook v. State, 353 So. 2d 911 (Fla. Dist. Ct. App. 1977); see also United States v. Wingate, 520 F.2d 309 (2d Cir. 1975), cert. denied 423 U.S. 1074 (1976).
In the present case the court gave the following limiting instruction:
“You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him.
“The statement made by defendant John Purdy can only be considered as evidence against John Purdy.
“The statement made by defendant Kenneth Hutchison can only be considered as evidence against Kenneth Hutchison.”
Under the facts and circumstances we hold the admission in evidence of a confession of a codefendant edited by excision was proper where: (1) the two codefendants gave parallel or interlocking confessions which, when edited, contained no reference to the other codefendant, (2) any suggestion of the other codefendant’s involvement in the crime charged was removed from the other’s confession, (3) the members of the jury were not advised that the statements, which were read into evidence, had been edited, and (4) an instruction to the jury was given limiting consideration of each confession to the confessor.
Before passing to a consideration of the next issue raised by appellant we wish to set forth the following caveat. Editing statements of codefendants by deleting references to an accused is not the panacea it might appear to be at first glance. The two statements in the present case happened to be parallel or interlocking confessions; each added little additional evidence of guilt to that set forth in the confession of the other. The form and content of the confessions lent themselves to deleting all reference to the defendant. This may not be possible in some cases and a severance and a separate trial may be the only solution.
In State v. Williams, 27 Ariz. App. 279, 554 P.2d 646 (1976), the two statements were edited but were still conflicting in the facts stated. The error in admitting the conflicting statements was held to constitute prejudicial error. In the annotation, Confrontation Clause - Bruton Rule, 29 L.Ed.2d 931, III § 9, various cases are discussed in which statements have been admitted in evidence with changes, deletions, or special instructions. The cases are divided under three headings, (a) admission held erroneous, (b) admission held erroneous but harmless, and (c) admission held not erroneous. It is apparent after reading only a few of the cases under each heading that the deletion of references to a codefendant may not be acceptable as a viable alternative to separate trials. The general practice df editing the confession of a codefendant and having a joint trial may prove deceptive and result in injustice necessitating a new and separate trial.
We turn to appellant’s second point. Defendant was found guilty on two counts of aggravated robbery (K.S.A. 21-3427). Appellant contends the transaction involving Humphrey and Schoenhoff constitutes only one crime and that a judgment of acquittal on one of the counts of aggravated robbery should have been entered. He does not indicate which of the counts should have been dismissed. Appellant cites State v. Pierce, et al., 205 Kan. 433, Syl. ¶ 3, 469 P.2d 308 (1970), which states:
“The test to be applied in determining the question of identity of offenses laid in two or more counts of an information is whether each requires proof of a fact which is not required by the others.”
The State may not split a single offense into separate'parts, and where there is a single wrongful act, such act will not furnish the basis for more than one criminal prosecution. State v. Lassley, 218 Kan. 758, 761, 545 P.2d 383 (1976). When two offenses are charged in separate counts of one information the test to be applied in determining duplicity is not whether the facts proved at trial are actually used to support the conviction of both offenses, it is whether the necessary elements of proof of one crime are included in the other. State v. Lora, 213 Kan. 184, Syl. ¶ 4, 515 P.2d 1086 (1973). Robberies committed at the same time from different persons are distinct crimes and will support separate charges and convictions. State v. Branch and Bussey, 223 Kan. 381, Syl. ¶ 3, 573 P.2d 1041 (1978).
In the present case one count covered the robbery of Humphrey when his wallet was taken. The second count covered the robbery of Schoenhoff when her purse was taken. Both robberies were accomplished with a gun. Separate charges and convictions for aggravated robbery were proper.
As his next point appellant argues that he was a minor of the age of sixteen years when the crimes were committed. He was found nonamenable to the jurisdiction of the juvenile division of the district court. He further argues the original finding of non-amenability and his referral by the juvenile division to the criminal division of the district court for trial as an adult was improper.
The following facts are admitted: The proceedings were filed first in the juvenile division. A motion to refer the defendant for trial as an adult was filed. A finding of nonamenability was entered and juvenile jurisdiction was waived. This decision was then appealed, and the determination of nonamenability was upheld by the Court of Appeals. Thereafter a petition for review was considered and denied by this court. Appellant attempts in the present appeal to have this court reopen the question previously decided. We decline to do so.
When a question in a case has been decided once on appeal and is final that decision becomes the law of the case. It is the practice of courts generally to refuse to reopen such a question during subsequent proceedings. The phrase “law of the case,” as applied to a decision of an appellate court in an earlier appeal in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided. It is not a limit on their power, and a reconsideration may be proper when the prior decision is palpably erroneous. See Henry v. Railway Co., 83 Kan. 104, 109 Pac. 1005 (1910); Lechleitner v. Cummings, 160 Kan. 453, 456, 163 P.2d 423 (1945), and cases cited therein; 46 Am. Jur. 2d, Judgments § 400, p. 567. Although the practice of the courts in refusing to reopen matters once decided is not an arbitrary, inflexible rule, it is a salutary rule to be applied with discretion. We think it should be applied under the facts here presented. The prior decision is not palpably erroneous and we refuse to reconsider the questions raised concerning waiver of juvenile jurisdiction and trial as an adult.
We turn to the final point raised by appellant. When appellant Hutchison entered the Humphrey residence both Hutchison and Purdy were armed with firearms; both were minors. These crimes were committed on September 1, 1977. The mandatory sentencing statute then in effect was K.S.A. 1976 Supp. 21-4618:
“Probation and sentencing for certain crimes involving use of firearms. Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. [L. 1976, ch. 168, § 1; July 1.]”
It is noted no exception is made in this statute when a minor is the defendant convicted.
The appellant was sentenced under this statute to a mandatory minimum sentence on May 11, 1979. Thereafter, effective on July 1, 1979, the statute was amended to read as follows:
“(1) Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. This section shall not apply to any crime committed by a person under eighteen (18) years of age.
“(2) When a court has sentenced a defendant as provided above, the court shall state in the order of commitment to the secretary of corrections that the defendant has been sentenced pursuant to this section 21-4618.” K.S.A. 1979 Supp. 21-4618. Emphasis supplied.
As amended the mandatory firearm sentencing statute does not apply to any crime committed by a person under eighteen years of age. Appellant was only sixteen years of age when he committed these crimes. He contends the statute as amended should be applied retroactively to exclude him from the mandatory firearm sentencing. Appellant received two sentences for a period of ten years to life on the aggravated robbery charges and a third sentence for a period of five to twenty years on the aggravated burglary charge, all sentences to run concurrently.
Regarding the retroactive argument, the general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively. Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979). The foregoing rule of statutory construction is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties. Nitchals v. Williams, 225 Kan. 285. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished. State v. Augustine, 197 Kan. 207, Syl. ¶ 1, 416 P.2d 281 (1966).
Changes in the length of sentences for criminal acts have been given prospective application only. In State v. Ogden, 210 Kan. 510, Syl. ¶ 10, 502 P.2d 654 (1972), it is held:
“The sentencing of convicted criminals pursuant to K.S.A. 1971 Supp. 21-4504 is applicable only to those initially sentenced for offenses committed after the effective date of the new criminal code, July 1, 1970.”
In State v. Henning, 3 Kan. App. 2d 607, 609, 599 P.2d 318 (1979), the Court of Appeals with regard to multiple sentences stated:
“Further, the effective date of the amendment to K.S.A. 21-4608(5), L. 1978, ch. 120, § 8, which extended permissible authorized sentencing to include direction that an imposed Kansas sentence run concurrently with another state’s sentence for an offense committed prior to the defendant’s Kansas sentence, was not effective until January 1, 1979. Retroactive application of the amendatory statute would be improper. The penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense. Kelsey v. State, 194 Kan. 668, 400 P.2d 736 (1965). Here it was necessary that the penalty imposed for the February 8, 1976, burglary by defendant be within the sentencing statutorily authorized as of that date.” Emphasis supplied.
Considering the provisions of K.S.A. 1979 Supp. 21-4618 the intent of the legislature is clearly stated. It reads: “This section shall apply only to crimes committed after the effective date of this act.” (July 1, 1979.) The crimes of appellant were committed September 1, 1977, and retroactive application of the amendatory statute would violate its terms and would not be proper.
Appellant contends the mandatory firearms sentencing statute K.S.A. 1976 Supp. 21-4618 was constitutionally impermissible when applied to him in that he was denied equal protection of the law and denied due process by the length of the sentences imposed. After examining the concurrent sentences received by appellant in light of what was said in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), we hold the sentences are constitutionally permissible.
Judgment affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This is a K.S.A. 1992 Supp. 60-1102 mechanic’s lien case. The controlling issue is whether the lien was timely filed.
Manhattan Mall Company (the Company) sued to remove the cloud of a mechanic’s lien on an abandoned leasehold interest in a shopping mall. The trial court ruled that the lien filed by Alan J. Hastings, an architect contractor and one of the defendants in the lien foreclosure action, was not timely filed. The trial court also ruled that the lien only applied to a leasehold interest. We have jurisdiction under K.S.A. 20-3018(c) (transfer from the Court of Appeals on motion of this court).
The applicable standard of review requires us to determine whether the trial court's findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929 (1993). We find no error and affirm.
Facts
The Company, a general partnership, is the managing partner in and general partner of Manhattan Mall Associates, L.P. (MMA), a limited partnership. MMA was the record owner of a portion of the leasehold estate in a city owned shopping mall, Manhattan Town Center (Mall), located in Manhattan, Kansas.
Ernest and Jiang Shult entered into a lease agreement with MMA acting through the Company. Separate leasing and management entities were involved. We shall refer to the Company as representative of the interest adverse to Hastings. The Shults leased a store space in the Mall. The lease agreement authorized the Shults to make improvements in the leased space, subject to the general mall construction requirements set forth in a tenant handbook and the local city building code requirements. The lease required the approval by the lessor and its agents of all proposed improvements. The lease stated that the lessor was not a party to or part of any tenant improvements and that the lessor had no responsibility for liens.
The Shults contracted with Hastings to provide the design, labor, and materials for the construction of improvements in the leased space for a price of $47,550. Hastings met with the general manager and the operations manager of the Mall. Hastings was informed that the Mall was interested in conformity with Mall and city requirements and that the various Mall entities were not pai'ties to or involved in the contract between Hastings and the Shults. Hastings testified that he was never informed that he was not working for the Company. Hastings also indicated that he believed he was under an oral contract of completion with the Company because management had provided on-site communication concerning its demands and requirements.
The final cost for the renovation project was $77,511. Hastings testified that $30,000 had been paid so the outstanding balance was $47,511. He also stated that the Mall operations manager had told him that he would be paid as a third party by the Company. The operations manager denied Hastings’ contention, testifying that he never stated Hastings would be paid by the Company. Hastings never received payment from the Company.
On June 26, 1991, Hastings filed a $42,511.46 mechanic’s lien against the Shults as owners of the leased space for work done under the contract. After the Shults defaulted on their lease, the Company sued for payment and/or eviction and a determination of the validity of the mechanic’s lien. The Shults vacated the space and filed for bankruptcy. The Company and Hastings were among those parties named as creditors in the bankruptcy petition. The trustee in bankruptcy abandoned the leasehold. The Company re-entered and temporarily rented the space for the same amount owed by the Shults. The space was vacant at the time of trial.
Hastings answered the petition, claiming a valid lien against the Company. A status conference was held on February 10, 1992. All parties agreed, through counsel, that discovery should be completed within 90 days, on or before May 10, 1992. Written requests for discovery were to be filed and served within 30 days, on or before March 11, 1992. A pretrial conference was scheduled for May 18, 1992.
Hastings terminated the employment of his legal counsel on March 31, 1992. Hastings’ present counsel filed an entry of appearance on May 6, 1992, and a motion to dismiss or in the alternative, to grant relief to allow new counsel to file counter- and cross-complaints. Hastings’ motions were denied.
The case was tried to the court. The trial court found that: (1) the lien was not timely filed; (2) the lien, as filed, was directed to the Shults’ interest, which had been abandoned in bankruptcy; (3) there was no agency as to the Shults and the Company; (4) merger of interests had not been proven and, as such, was not allowed; (5) the lien was invalid and even if it were valid, it would not attach to the Company’s interest; and (6) the Company was the real party in interest.
Rulings, Pretrial and at Trial
Hastings maintains that the trial court acted in an arbitrary ánd capricious manner at the May 18 hearing. The trial court refused to allow him to file counter- and cross-complaints, to extend the time for discovery, and to allow the presentation of other theories for resolution by the court. Hastings asserts that the trial court ignored his right to properly address the foreclosure aspects of the mechanic’s lien law.
“The control of discovery is entrusted to the sound discretion of the trial court, and orders concerning discoveiy will not be disturbed on appeal in the absence of a clear abuse of discretion.” Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 454, Syl. ¶ 20, 856 P.2d 906 (1993). Furthermore, “ ‘ “[The] trial court is given wide latitude and discretion in permitting or refusing amendments [to the pleadings] in the interests of justice. In the absence of a clear abuse of discretion the order of the trial court should be approved.” ’ [Citations omitted.]” Slaymaker v. Westgate State Bank, 241 Kan. 525, 536, 739 P.2d 444 (1987).
The trial court acted within its discretion when it declined to extend discovery time and refused to allow Hastings to file counter- and cross-complaints.
Concerning Hastings’' real party in interest argument raised in his motion to dismiss, the trial court made the following relevant conclusion of law in its memorandum opinion:
“2. The evidence presented shows that Manhattan Mall Company is an owner and a general and managing partner of the Mall and is entitled to bring this action on leased space both in its authority as a general partner and as owner defined in K.S.A. 60-1108, and is a real party in interest.”
The trial court’s real party in interest determination is supported by the record.
Timely Filing
Hastings isolates four areas in which he contends the findings of the trial court were not supported by the evidence: (1) the legal sufficiency of the mechanic’s lien statement; (2) timely filing of the lien; (3) the amount of the outstanding indebtedness for labor and materials; and (4) whether the indebtedness was, in fact, chargeable to the Company. We do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. Kansas City Heartland Constr. Co. v. Maggie Jones Southport Cafe, Inc., 250 Kan. 32, 36, 824 P.2d 926 (1992). We find substantial evidence in the record to support the trial court’s findings.
Hastings takes the position that his uncontradicted and un-impeached testimony as to the facts surrounding the filing of the mechanic’s lien, performance of labor, and supplying of materials to construct the facility cannot be disregarded by the trial court. Hastings bases this claim on the fact that his testimony was the only evidence presented on the issues in controversy. He believes that the trial court cannot lawfully determine such issues in direct opposition to the evidence, citing Lorbeer v. Weatherby, 190 Kan. 576, 580, 376 P.2d 926 (1962). Hastings misreads Lorbeer. Lorbeer involved a negligence action in which we discussed the fact that the jury cannot disregard the only evidence upon a material question in controversy and return a verdict in direct opposition to such evidence.
The mechanic’s lien at issue was filed on June 26, 1991. Hastings asserts that the only evidence at trial concerning the last date of performance of labor was his testimony that a mirror had been replaced on February 26, 1991. He also indicates that the lien statement, which showed February 26, 1991, as the last work date, was admitted into evidence. A review of the record supports the trial court’s conclusion that the work on February 26 did not count as the last day of labor because the work was gratuitous.
K.S.A. 1992 Supp. 60-1102(a) requires the lien to be filed within four months of the date material was last furnished or labor was last performed. See Buckley, Kansas Mechanics’ Lien Laws: Filing — Enforcing—Defending, 57 J.K.B.A. 27 (May-June 1988). The evidence presented on the timely filing issue consisted of a lien statement; the computerized statement account prepared by Hastings bearing the daté of February 24, 1991; and the testimony of Hastings. The burden of proving the timeliness of the lien filing was on Hastings. A mechanic’s lien is purely a statutory creation. Lien claimants must bring themselves clearly within the provisions of the statute authorizing the lien. Kansas City Heartland Constr. Co., 250 Kan. 32, Syl. ¶ 1. Hastings did not successfully carry this burden.
The Company discusses the absence of evidence at trial which could support a conclusion that the lien cutoff date should have been February 26. The facts in the case at bar do not satisfy the circumstances which can extend the lien date. See Eisenhut v. Steadman, 13 Kan. App. 2d 220, 222, 767 P.2d 293 (1989) (installing a plant stand, cleaning pine paneling, and tightening a front porch railing, held to extend the contract to satisfy the contract demands of owner); Stickney v. Murdock Steel & Engineering, Inc., 212 Kan. 653, 656, 512 P.2d 339 (1973) (owner’s demand for substitution or replacement of material, insisting that the contract was not complete, served to extend the contract); and Benner-Williams, Inc. v. Romine, 200 Kan. 483, Syl. ¶ 4, 437 P.2d 312 (1968) (unfinished work was a-part of the original contract).
We endorse the trial court in its memorándum opinion:
“21. K.S.A. 60-1102 requires a mechanic’s lien to be [timely] filed. In this instance, the statute requires the lien to be filed within four (4) months of the date in which the last material or labor was provided. The evidence presented shows that all work was performed or provided on or prior to February 24, 1991, except for a cracked mirror being replaced/repaired. No charge was made for the mirror or the labor to install it. This was, in fact, warranty work and repair. Repairs in the nature of warranty work for a job that is completed and accepted do not extend the time in which to file a mechanic’s lien.
“22. The testimony of Hastings established that a final billing had been prepared and discussed on or before February 24, 1991. (Plaintiff’s Exhibit No. 9.) No evidence or testimony was presented showing that the work was not completed to the satisfaction of the tenant Shult on or before February 24, 1991. No evidence was presented showing that the tenant was demanding that certain work be done or completed before payment for the contract work would be finally paid. The evidence fails to establish that any material or labor was provided on or after February 24, 1991 relating to the completion of the contract between Hastings and Shult. Thus the mechanic’s lien not being filed until June 26th, 1991 was not timely filed.”
The evidence supports the trial court’s findings. The trial court must examine all facts surrounding the question of whether a lien was filed in a timely manner. The trial court is not required to accept a contractor’s statements concerning the last work date if that statement is contradicted by the evidence. The test as to when a piece of work is completed in order to preserve a mechanic’s lien under K.S.A. 60-1101 et seq. is whether the unfinished work was a part of the work necessary to be performed under the terms of the original contract to complete the job and comply in good faith with the requirements of the contract. Ben-ner-Williams, Inc., 200 Kan. at 487. A subsequent gratuitous furnishing of material in the nature of a substitution or replacement to remedy a defect in the material originally delivered will not operate to extend the time within which to file a mechanic’s lien. Murdock Steel & Engineering, Inc., 212 Kan. at 656.
The Company discusses the fact that the lien statement only named the Shults as owners and specified the leasehold interest. We need only comment briefly on the realty interest issue as we have affirmed the trial court on the timely filing issue. The Company believes that the only interest sought under the lien was the leasehold of the tenant, which was physically abandoned by the tenant and legally abandoned by the trustee in bankruptcy. The Company concludes that the mechanic’s lien, as filed, has become a nullity so the trial court’s decision is not in error. The Company’s analysis is supported by Kansas City Heartland Constr. Co., 250 Kan. 32, Syl. ¶ 3.
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Per Curiam,-.
This is an original uncontested attorney disciplinary proceeding. The parties stipulated to the following facts.
Kent Owen Docking is an attorney at law, Kansas attorney registration No. 12265, admitted to the Bar of the State of Kansas on September 20, 1985. His registration address with the clerk of the appellate courts of Kansas is 330 Brotherhood Building, Kansas City, Kansas 66101.
On June 4, 1986, three Korean nationals were each charged with two counts of aggravated kidnapping. Shortly after being charged, all three defendants retained the respondent to represent them in the criminal proceedings. Docking received a fee from each defendant.
Prior to the preliminary examination, Docking met with his clients on several occasions, sometimes with and sometimes without an interpreter. The three defendants were bound over for trial after the preliminary examination on June 18, 1986. On September 5, 1986, each defendant pleaded guilty to an amended charge of kidnapping, a Class B felony. On October 10, 1986, Judge Frederick Stewart heard motions filed by Docking on behalf of all three defendants to withdraw their pleas of guilty. The basis for the motions was that the defendants were unable to understand the “terms and conditions of the plea” because of a lack of understanding and communication between the interpreter and the defendants. Docking argued in support of the motions. The defendants did not testify. Judge Stewart denied defendants’ motions to withdraw their pleas and sentenced each defendant to the custody of the Secretary of Corrections for a minimum term of 10 years and a maximum term of 20 years. On February 27, 1987, the court heard motions filed by Docking on behalf of each defendant to modify the sentences. The court reduced the sentences to a minimum term of 5 years and a maximum term of 20 years.
On November 18, 1988, defendants filed K.S.A. 60-1507 motions alleging that they had been denied effective assistance of counsel by Docking. The 60-1507 hearing for the three defendants occurred on November 29, December 5, and December 6, 1988, before Judge Stewart.
Docking voluntarily appeared as a witness at the hearing. Although Docking requested the opportunity to consult with counsel during the course of the hearing, his request was denied. He testified at length, without the benefit of counsel during the hearing.
Judge Stewart noted that Docking undertook representation of the three defendants even though it was apparent that conflicts of interest existed among the positions of the three clients. The court observed that there was no evidence that the possible conflict of interest was explained to or waived by each of the clients.
Judge Stewart found that Docking did not have the experience or competence to represent clients charged with two counts of aggravated kidnapping, a Class A felony. The judge noted that Docking had no felony trial experience, had not previously handled a Class A or B felony, and had’ only been out of law school for one year. In addition, Docking did not remedy his lack of experience by associating with a Korean-speaking lawyer competent to handle the case. Although Docking had provided one interpreter for his clients, he did not ensure simultaneous translation during the criminal proceedings. He also had failed to properly investigate the case. A witness was known but was not sought or used in the trial. There was evidence that the statement given by one client could have been suppressed if a motion to suppress had been filed. Docking had erroneously advised his clients that if probation was not granted, the clients could withdraw their pleas. Docking then informed his clients that they had no right to appeal the denial of the motion to withdraw the pleas. He further advised his clients that a habeas corpus petition must be filed in federal court by inmates without assistance of counsel. Finally, the judge found that although Docking was aware his clients were illegal aliens, he had failed at the sentencing hearing to request that his clients should not be deported.
At the conclusion of the 60-1507 hearing, the judge found that Docking had not provided his clients with reasonable effective assistance of counsel. The judge determined that the defendants’ rights to a fair trial had been prejudiced by Docking’s ineffective assistance. Judge Stewart vacated the sentences of the defendants and set aside their pleas of guilty. The three clients had been incarcerated for approximately two and one-half years. The State subsequently declined to reprosecute the defendants.
On October 21, 1990, a formal complaint was filed by the Disciplinary Administrator alleging that Docking had violated: DR 1-102(A)(4) (1993 Kan. Ct. R. Annot. 202) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice) and 1-102(A)(6) (engaging in other conduct that adversely reflects on his fitness to practice law); DR 5-105(A) (1993 Kan. Ct. R. Annot. 222) (failing to decline employment where the exercise of his independent professional judgment on behalf of a client would be or was likely to be adversely affected), 5-105(B) (continuing multiple employment when the exercise of his independent professional judgment on behalf of a client would be or was likely to be adversely affected by his representation of another client) and 5-105(C) (failing to fully disclose to each of the clients the effect of such representation on the exercise of his independent professional judgment on behalf of each client and obtain their consent to continued representation); DR 6-101(A)(1) (1993 Kan. Ct. R. Annot. 227) (handling a legal matter which he knew or should have known that he was not competent to handle, without association with a lawyer who was competent to handle it) and 6-101(A)(2) (handling a legal matter without preparation adequate in the circumstances); and DR 7-101(A)(2) (1993 Kan. Ct. R. Annot. 233) (failing to carry out a contract of employment entered into with a client for professional services) and 7-101(A)(3) (prejudicing or damaging his client during the course of the professional relationship). The matter was heard before the Kansas Board for Discipline of Attorneys on January 6, 1993.
The parties presented the hearing panel with a stipulation that disposed of preliminary procedural issues and resolved any factual disputes. The parties agreed that Docking had violated DR 5-105(A) and DR 5-105(B) and DR 6-101(A)(l). The hearing panel made a preliminary finding that Docking had violated DR 5-105(A) and DR 5-105(B) and DR.6-101(A)(1).
The Disciplinary Administrator recommended the sanction of public censure based on ABA Standards for Imposing Lawyer Sanctions 4.33, Failure To Avoid Conflicts Of Interests, and 4.53, Lack of Competence, and the Disciplinary Administrator’s belief that the sanction of public censure was appropriate and should be levied in this case. The ABA Standards cited by the Disciplinary Administrator are:
"4.33 Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.”
“4.53 Reprimand is generally appropriate when a lawyer:
(a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or
(b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client.”
The Disciplinary Administrator’s office, in making its recommendation, also took into consideration the following factors in mitigation under ABA Standard 9.32:
“(a) absence of a prior disciplinary record;
(f) inexperience in the practice of law.”
No evidence of aggravating circumstances was offered by the Disciplinary Administrator.
Docking offered testimony in mitigation of his conduct. Docking admitted during the early years of his practice he was too inexperienced to defend a major felony case. Docking further acknowledged that he had failed to associate with an experienced criminal attorney to assist with the defense of three Korean nationals who, in turn, were poorly equipped to grasp the effect of potential conflicts of interest among themselves. Docking ac knowledged that public censure would be an appropriate discipline for his violation of the disciplinary rules in effect at the time of his misconduct.
The hearing panel adopted the stipulation of the parties, examined the exhibits, and considered the statement of respondent. The panel recommended that Kent Owen Docking be disciplined by public censure by the Supreme Court of Kansas and that the costs of this action be taxed to respondent.
Respondent filed no exceptions to the report of the panel.
The court, having considered the record herein and the report of the panel, and, after considering the mitigating factors, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel.
It Is Therefore Ordered that Kent Owen Docking be, ánd he is hereby, disciplined by censure in accordance with Supreme Court Rule 203(a)(3) (1993 Kan. Ct. R. Annot. 162) for his violations of the Code of Professional Responsibility.
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to respondent. | [
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Per Curiam:
This an original proceeding relating to judicial conduct against respondent, Paul D. Handy, District Judge of Finney County. In a formal proceeding before the Commission on Judicial Qualifications, respondent was charged with six counts alleging violations of the Canons of the Code of Judicial Conduct. The Commission found that the allegations contained in Counts I, II, III, and IV, and some of the allegations contained in Count V, were established by clear and convincing evidence and that respondent violated the following Canons under the respective counts charged: Count I-Canon 2A (1993 Kan. Ct. R. Annot. 381), Canon 3C(1) (1993 Kan. Ct. R. Annot. 382), and Canon 5C(1) (1993 Kan. Ct. R. Annot. 389) of the Code of Judicial Conduct; Count II-Canons 1 (1993 Kan. Ct. R. Annot. 380), 2A, 3C(l)(c), and Canon 5C(1) and (7) of the Code of Judicial Conduct; Count Ill-Canons 1, 2A, 3C(l)(c) and Canon 5C(1) and (7) of the Code of Judicial Conduct; Count IV-Canons 1, 2A, and 5C(1) of the Code of Judicial Conduct; and Count V-Canons 1 and 2A. The Commission found that one of the allegations contained in Count V and all of the allegations contained in Count VI were not established by clear and convincing evidence.
Based on its finding and conclusions, the Commission recommended that respondent be publicly censured, with five or more members concurring. Two members of the Commission concurred with the majority’s findings of fact and conclusions of law but dissented as to the recommendation for public censure. The dissenting members voted for public admonishment by the Commission under Rule 620 (1993 Kan. Ct. R. Annot. 404).
The standard of proof to be applied in this inquiry is that of clear and convincing evidence. In re Rome, 218 Kan. 198, Syl. ¶ 9, 542 P.2d 676 (1975). We have examined the transcripts and exhibits and conclude that the Commission’s findings and conclusions, except where indicated below, are supported by clear and convincing evidence. We agree with the Commission that one of the allegations in Count V and all of the allegations in Count VI were not established by clear and convincing evidence. We find the remaining allegations in Count V do not support a violation of Canons 1 and 2. Accordingly, we dismiss Counts V and VI.
Our opinion is divided into four sections dealing with each remaining count. We treat each count separately by setting forth the charge before the Commission, the findings and conclusions of the Commission, the exceptions taken by respondent, and our discussion and resolution of the charged misconduct.
I.
A. The Charge
“COUNT I
“It is alleged that Respondent, the Hon. Paul D. Handy, who was at the time a Judge of the District Court of the 25th Judicial District, did engage in certain conduct which violates the provisions of Canon 2[A] of the Rules of the Supreme Court Relating to Judicial Conduct which provides, inter alia-.
‘A judge should avoid impropriety and the appearance of impropriety in all his activities.’
‘A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity ... of the judiciary.’
and Canon 3C(1) which provides:
‘A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . .’
and Canon 5C(1) which provides:
‘A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.
‘C. Financial Activities.
‘(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.’
“Respondent did, commencing in the year 1985, accept a contractual commitment, or an appointment, as Municipal Judge of the City of Garden City, Kansas. Between first accepting such position as Municipal Judge of Garden City and the current time, Respondent has presided over the Municipal Court of Garden City, Kansas, is an employee of the City of Garden City, Kansas, and has represented the interests of the City in presiding over said Municipal Court. That concurrently while occupying the position of Municipal Judge of Garden City, Respondent has served as a Judge of the District Court of the State of Kansas, 25th Judicial District. That while seiving in such capacity as a state District Court judge, as such a judge Respondent has presided over litigation in which his other employer, Garden City, Kansas, has been a party in adverse proceedings. Respondent therefore makes rulings and issues decisions that directly affect the interests, sometimes monetary interests, of his employer, Garden City. This course of conduct, it is alleged, violates the Canons of Judicial Conduct.”
B. Commission’s Findings of Fact
The findings of fact of the Commission on Count I, agreed to by respondent and adopted by this court, are as follows:
“FINDINGS OF FACT
“COUNT I
“(Municipal Judgeship)
"I. Respondent is a District Judge in the Twenty-Fifth Judicial District, Finney County, Kansas. He assumed that position January 18, 1984, and retains that position at present.
“2. Commencing July 1, 1986, Respondent was also appointed and seived concurrently as Municipal Court Judge in the city of Garden City.
“3. As Municipal Court Judge, Respondent initially received a salary of $14,417.00 in 1986 and the salary increased to $16,200.00 in 1991.
“4. Either the City Manager or the City Commission of Garden City hired Respondent as Municipal Court Judge and he served at the pleasure of the hiring authority.
“5. As District Court Judge, and as Municipal Judge of Garden City, he presided over contested cases in which the City of Garden City was a party. Respondent assumed that it was well known in the community that he was a Municipal Judge and a District Court Judge. With two other district judges in the judicial district, those cases assigned to Respondent could have been assigned to other judges, but were not. There was no evidence that Respondent disclosed on the record his relationship with the City which would have been a basis for disqualification nor that the parties, pursuant to Canon 3(D) agreed in writing, independent of the Judge’s participation, that the Judge’s relationship with the City was immaterial.
“6. The cases involving Garden City as a party over which Respondent presided as District Judge included civil cases, forfeiture actions, workers compensation matters, cases involving police officers and other civil litigation.
“7. Respondent continued to serve concurrently as District Judge of the Twenty-Fifth Judicial District and Municipal Judge of Garden City, Kansas, until September 22, 1992, when the Complaint was filed in these proceedings. Respondent has not presided as Judge in either Court since that date.
“8. There are three District Court Judges in the Twenty-Fifth Judicial District, including Judge Stephen Nyswonger, Judge Philip Vieux and respondent.
“9. A District Judge in the Twenty-Fifth Judicial District is appointed by the governor and has certain constitutional protection, which protection is not available to a Municipal Court Judge.
“10. Prior to the acceptance of the position of Municipal Judge, Respondent personally contacted Supreme Court Justice Harold Herd, who was the Departmental Justice for the Twenty-Fifth Judicial District, and inquired whether acceptance of this position was in conflict with or a violation of any provisions of the Code of Judicial Conduct. Justice Herd conferred with the other Justices of the Kansas Supreme Court, and the Justices unanimously agreed Respondent’s acceptance of the position was not a conflict nor any violation of the Code of Judicial Conduct. Respondent then accepted the position of Municipal Judge of Garden City.
“11. At no time during Respondent’s, tenure as District Judge did he preside in any contested matter (a) in which the City of Garden City was a party or had any interest in said proceedings from any appeal from the Municipal Court and (b) in which Respondent presided in the Municipal Court.”
C. Commission’s Conclusions of Law
The conclusions of law of the Commission on Count I are as follows:
“3. Although the Supreme Court authorized Respondent to serve as a District Court Judge and concurrently as a Judge of the Municipal Court in Garden City, the Commission finds violation of the Canons cited, arising out of the manner in which Respondent conducted himself in these positions. Respondent, as District Judge of Finney County, presided over, heard and decided civil actions in which the City of Garden City was a party. It was not sufficient that Respondent assumed it was well known in the community that he was a Municipal Judge and a District Court Judge. With two other District Judges in the judicial district, those cases assigned to Respondent could have been assigned to the other judges. In the alternative, pursuant to Canon 3(D), Respondent could have disclosed on the record the basis of his disqualification. If the parties and lawyers had agreed in writing, independent of the judge’s participation, that the judge’s relationship was immaterial, then he could have participated in the proceedings without there being any violation.”
D. Exception Taken by Respondent
Respondent takes the following exception:
“4. In Count I, the Kansas Supreme Court imposed no conditions on Respondent. It was common knowledge in the community and the Bar of Finney County of Respondent’s dual role. Respondent’s motion to dismiss should be sustained as a matter of law.”
E. Discussion and Resolution of Charged Misconduct
We note that respondent moved to dismiss Count I. The Commission properly denied respondent’s motion. While this court may have authorized respondent to seek the position of municipal judge, it did not thereby approve all conduct that respondent may have engaged in while acting in his official capacity as both municipal judge and judge of the district court. The Canons of Judicial Ethics do impose strict obligations upon a judge. In this case respondent ignored a clear conflict of interest by handling cases before the district court that involved his employer, the City of Garden City, Kansas. Respondent may not abdicate his obligations as a judge by claiming this court authorized him to hear cases involving a clear conflict of interest. His conduct was not approved by this court and violated Canon 2A, Canon 3C(1), and Canon 5C(1). We conclude that respondent violated these canons by the manner in which respondent conducted himself holding the position of Municipal Judge and District Court Judge in Finney County, Kansas.
As District Judge of Finney County, respondent presided over, heard, and decided civil actions in which the City of Garden City was a party. As indicated by the Commission and found by this Court, it was not sufficient that respondent assume it was well known in the community that he was a municipal judge and a district court judge. With two other district judges in the judicial district, those cases assigned to respondent involving conflict should have been assigned to other judges. In the alternative, Canon 3D would have allowed respondent to have disclosed on the record the basis for his disqualification and, if the parties and lawyers had agreed in writing independent of the judge’s participation that the judge’s relationship was immaterial, then he could have participated in the proceedings without there being any violation.
To avoid any future problem in this area this court recently adopted a rule that prohibits a general jurisdiction district judge from occupying a position as a municipal judge while sitting as a district judge. See Supreme Court Rule 651 (1993 Kan. Ct. R. Annot. 411).
II
A. The Charge
“COUNT IX
“It is alleged that Respondent, the Hon. Paul D. Handy, who was at the time a Judge of the District Court of the 25th Judicial District, did engage in certain conduct which violated the provisions of Canon 1 of the Rules of the Supreme Court Relating to Judicial Conduct which provides, inter alia-.
‘A judge should uphold the integrity ... of the judiciary.’
‘A judge should participate in establishing, maintaining and enforcing and should himself observe high standards of conduct so that the integrity ... of the judiciary may be preserved.’
and Canon 2[A] which provides:
‘A judge should avoid impropriety and the appearance of impropriety in all his activities.’
‘A. A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’
and Canon 3C(l)(c) which provides:
‘Disqualification.
‘(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
‘(c) he knows that he, individually or as a fiduciary, . . . has a financial interest in the subject matter in controversy . . . .’
and Canon 5C(1) and (7) which provide:
‘A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.
‘C. Financial Activities.
‘(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.’
‘(7) Information acquired by a judge in his judicial capacity should not be used or disclosed by him in financial dealings or for any other purpose not related to his judicial duties.’
"The facts constituting the alleged violation of the foregoing Rules include the following:
“On February 27, 1991, a probate case entitled ‘In the Matter of the Estate of Laverne Bourne’, Case No. 91 P 10, was filed. A major asset of the Estate was real property, a condominium, the address of which was 817 Kensington, Garden City, Kansas.
“On February 28, 1991, Respondent as a Judge of the District Court, signed two Orders in the probate case, 91 P 10, an Order Admitting the Will to Probate and an Order for Plearing.
“On March 13, 1991, a financial institution to which Respondent had applied for a loan to purchase a residence was beginning to assemble the paperwork to consider loaning Respondent money on a purchase money mortagage to purchase 817 Kensington, the same property that was an asset of the probate estate in probate Case No. 91 P 10.
“On March 18, 1991, Respondent signed a contract for the purchase of 817 Kensington with the executor of the Bourne Estate, Bryce Roderick, whose petition to admit the will of Laverne Bourne to probate was the subject of an Order signed February 28, 1991, by Respondent.
“On March 19, 1991, a contract between Respondent and the executor of the Estate was completely executed for Respondent’s purchase of 817 Kensington.
"On April 8, 1991, a report of the sale to Respondent was filed in Case No. 91 P 10.
“On April 9, 1991, an Order was signed by another Judge of the same district, Judge Phil Vieux, ordering a hearing on confirmation of the sale to Respondent for April 12, 1991.
“On April 12, 1991, Judge Vieux by court order confirmed the sale of the asset in the Estate, 817 Kensington, to Respondent. The Order was filed April 17, 1991.
“At no time between February 27, 1991, and April 17, 1991, did Respondent ever file any document evidencing his recusal in Case No. 91 P 10, evidencing his disqualification in Case No. 91 P 10, or in any way evidencing his inability or refusal to continue to be a judge of record in Case No. 91 P 10, a case in which he had previously exercised judicial power to enter orders.”
B. Commission’s Findings of Fact
The findings of the Commission on Count II, agreed to by respondent and adopted by this court, are:
“COUNT II
“(Property at 817 Kensington Boulevard)
“12. On February 27, 1991, a probate case captioned, In the Matter of the Estate of LaVerne Bourne, Deceased, Case No. 91P10, was filed in the Finney County District Court. The case was assigned by the Clerk of the Court, pursuant to Local Rule, to Judge Donna L. J. Blake, a district magistrate.
“13. An asset in the Estate was real property located at 817 Kensington Boulevard, Garden City, Kansas.
“14. On February 28, 1991, counsel for the Estate, Mr. Ward Lloyd, came to Respondent’s chambers and requested the approval of two orders, as Judge Blake was unavailable.
“15. On February 28, 1991, Respondent, as judge of the District Court, signed an ‘Order Admitting Will to Probate and Appointing Executor,’ and ‘Order for Hearing and Notice to Creditors,’ and ‘Letters Testamentary’ naming Bryce Roderick, II, as Executor of the Will of LaVerne Bourne. All of said documents were filed by counsel for the estate with the Clerk of the Court.
“16. On March 15, 1991, Maggie Dale, a realtor with ARC Real Estate of Garden City, contacted Respondent and advised that property at 817 Kensington Boulevard has just been listed on the market for sale by MBA Real Estate Agency. Respondent made arrangements with Mrs. Dale to view the property. Respondent received from Mrs. Dale a real estate multi-list sheet describing the property and identifying the owner as Bryce Roderick, Executor of the Estate of M. LaVerne Roderick (Bourne).
“17. On March 18, 1991, Respondent delivered to Mrs. Dale a written offer to purchase the property. On March 19, 1991, the Executor, Bryce Roderick, II, accepted the Respondent’s offer and executed the contract of sale on 817 Kensington Boulevard.
“18. The Respondent testified that at the time he made the offer to purchase the property at 817 Kensington Boulevard, he had no recollection of having signed the orders in Case No. 91P10 nearly three weeks earlier. Respondent further testified he was unaware that LaVerne Bourne was one and the same as M. LaVerne Roderick, and did not become aware of such identity until he had a conversation with counsel for the Estate in April, 1991.
“19. It further appears that Respondent knew Bryce Roderick from his involvement in the community but that he did not know either LaVerne Roderick Bourne or her husband.
“20. On April 5, 1991, Respondent closed on the sale of said property, and on April 8, 1991, a ‘Report of Sale and Petition for Confirmation’ was filed by counsel for the Estate in Case No. 91P10.
“21. On April 9, 1991, an ‘Order for Hearing’ was signed by Judge Philip C. Vieux, a district judge, ordering a hearing on confirmation of the sale for April 12, 1991.
“22. On April 12, 1991, Judge Vieux approved an ‘Order of Confirmation’ which confirmed the sale of the property at 817 Kensington Boulevard to Respondent. The Order was filed by counsel on April 17, 1991.
“23. Respondent did not make any effort to determine if he had had any contact or involvement as District Court Judge with the 'Bourne Estate, 91P10, case before he purchased the condominium from the estate.
“24. At no time between February 28, 1991, and April 17, 1991, did Respondent file any document recusing himself in Case No. 91P10.”
C. Commission’s Conclusion of Law
The conclusions of law of the Commission on Count II are as follows:
“4. While there is no evidence that Respondent obtained an unfair advantage in his purchase of a condominium, which was the asset of an estate in which he had signed orders, by reason of his position his actions still constitute a violation of Canons 1, 2[A], 3(C)(1)(c) and 5(C)(1) and (7).
“5. The record reveals that the probate case was filed on February 27, 1991; that the next day, Respondent, as Judge of the District Court, signed orders admitting the Will to probate; and that 18 days later, Respondent signed a written offer to purchase the condominium from the estate. The fact that the multi-list sheet identified the owner as an executor of an estate should have prompted an inquiry as to whether this property was involved in pending litgation in a Court in Respondent’s judicial district and whether or not he was the judge of record. At the very least, Respondent’s actions indicate an insensitivity to the appearance of impropriety regarding such a purchase. While the Commission believes it is the better practice never to purchase property in such circumstances, the Judge should have at least determined if he had any involvement in the litigation or was likely to have future involvement in the litigation by way of appeal from a magistrate’s ruling or otherwise.”
D. Exception Taken by Respondent
Respondent takes the following exception:
“5. In Counts IX and III, Respondent exercising all reasonable care could not have been aware that the real estate he subsequently purchased was the same property in which he signed routine orders earlier.”
E. Discussion and Resolution of Charged Misconduct
The probate case was filed on February 27, 1991. The very next day respondent, as Judge of the District Court of Finney County, signed orders admitting the will to probate. Eighteen days later, respondent signed a written offer to purchase a condominium from the estate. In its conclusions of law the Commission notes that the multi-list sheet identification of the owner as an executor of the estate should have prompted an inquiry as to whether this property was involved in pending litigation in a court in respondent’s judicial district and whether or not he was a judge of record in that proceeding period. We agree and concur in the conclusions of the Commission that respondent’s actions indicated an insensitivity to the appearance of impropriety regarding such a purchase.
We also agree with the Commission’s observation that it is a better practice never to purchase property in such circumstances. At the very least, respondent should have determined whether he had any involvement in litigation prior to his purchase of this property. We have no hesitancy in concluding that respondent’s activities violated Canons 1, 2A, 3C(l)(c), and 5C(1). We, however, conclude that the provisions of Canon 5C(7) do not apply to the transaction involved under Count II. We therefore conclude that respondent did not violate the provisions of Canon 5C(7) as found by the Commission.
A. The Charge
III
“COUNT III
“It is alleged that Respondent, the Hon. Paul D. Handy, who was at the time a Judge of the District Court of the 25th Judicial District, did engage in certain conduct which violated the provisions of Canon 1 of the Rules of the Supreme Court Relating to Judicial Conduct which provides, inter alia-.
‘A judge should uphold the integrity ... of the judiciary.’
‘A judge should participate in establishing, maintaining and enforcing and should himself observe high standards of conduct so that the integrity ... of the judiciary may be preserved.’
and Canon 2[A] which provides:
‘A judge should avoid impropriety and the appearance of impropriety in all his activities.’
‘A. A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’
and Canon 3C(l)(c) which provides:
‘Disqualification.
‘(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
‘(c) he knows that he, individually or as a fiduciary, . . . has a financial interest in the subject matter in controversy . . . .’
and Canon 5C(1) and (7) which provide:
‘A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.
‘C. Financial Activities.
‘(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.’
‘(7) Information acquired by a judge in his judicial capacity should not be used or disclosed by him in financial dealings or for any other purpose not related to his judicial duties.’
“It is alleged that the following facts indicate violation of the Canon set forth previously.
“On October 10, 1988, in the District Court of Finney County, Kansas, a foreclosure action upon a home was filed by Landmark Federal Savings against Melvin and Sarah Nichols. The case was assigned to Respondent as Judge of the District Court.
“In January, 1989, Mr. Nichols deeded the property to Landmark and the lawsuit continued to be on file.
“On March 20, 1989, while the lawsuit was still pending before him, Respondent signed a contract to puchase the property that was the subject of the foreclosure action. The purchase was subsequently completed.
“On July 7, 1989, Respondent signed a request, as district judge, asking the Clerk of the Court to issue the Clerk’s notice of dismissal of inactive cases, one of which was Case No. 88 C 325, the pending foreclosure action involving the house he had purchased. A Notice of Dismissal was subsequently filed.”
B. Commission’s Findings of Fact
The findings of fact of the Commission on Count III, agreed to by respondent and adopted by this court, are as follows:
“COUNT III
“(Property at 407 Magnolia Street)
“25. The following facts were admitted pursuant to Stipulation by the parties:
a. On October 10, 1988, a foreclosure action upon real estate at 407 Magnolia Street, Garden City, Kansas, was filed in the District Court of Finney County, in an action styled Landmark Federal Savings Association, Plaintiff v. Melvin E. Nichols, Sr. and Sarah M. Nichols, Defendants, Case No. 88C325.
b. The case was originally assigned to Judge Philip C. Vieux and reassigned to the Respondent effective January 1, 1989, when the Respondent was assigned the civil bench.
c. On January 23, 1989, tKe Defendants, Melvin and Sarah Nichols, deeded the property to the Plaintiff, Landmark Federal Savings Association. This conveyance is reflected in Book 78, Page 381 of the Office of the Register of Deeds in Finney County. No proceeding was ever held in Case No. 88C325, but it remained an active case in the Office of the Clerk of the Court.
d. In early March, 1989, Respondent and his wife had inquired of Mrs. Maggie Dale, a local realtor, concerning the purchase of rental property in Garden City. On March 18, 1989, Mrs. Dale called Respondent and advised of the availability of a house at 407 Magnolia Street, owned by Landmark Federal Savings Association, and for sale ‘as is.’
e. On March 20, 1989, Respondent signed a ‘Residential Contract for Sale of Real Estate’ on the property at 407 Magnolia, Garden City. The contract was accepted by Landmark, and Respondent subsequently closed on the property. A deed dated March 22, 1989, was given by Landmark Federal Savings Association to Paul and Noreene Handy, conveying the property at 407 Magnolia.
f. On July 7, 1989, Respondent, as District' Court Judge, executed a ‘Request for Clerk’s Notice-of Intent to Dismiss’ on all .then pending but inactive cases. One of 69 cases listed for dismissal was Case No. 88C325.
g. On August 2, 1989, Landmark’s attorney, David Snapp of Dodge City, caused to be filed with the Clerk’s office a ‘Notice of Dismissal.’
h. At no time did Respondent file any document recusing himself in Case No. 88C325:
i. At no time did Respondent conduct any hearing in Case No. 88C325.
“26. The Respondent testified that he had no personal knowledge of Case No. 88C325 either at the time he and his wife executed the contract to purchase the property at 407 Magnolia or at the time he executed the ‘Request for Clerk’s Notice of Intent to Dismiss’ on the then pending, but inactive, 69 cases. Respondent further testified his first knowledge of the Landmark Federal v. Nichols case was when he received a letter from the Commission’s Examiner, Ed Collister, in June, 1992.”
C. Commission’s Conclusions of Law
The conclusions of law of the Commission on Count III are as follows:
“COUNT III
“6. As in Count II, the Commission believes that Respondent’s actions show an insensitivity to the appearance of impropriety in these real estate transactions. The fact that the real property was owned by Landmark Federal (a lending institution), which ordinarily would not own real property, should have prompted an inquiry by the Respondent as to whether the subject property was involved in any litigation in District Court, whether or not he was the judge of record. By Respondent’s failure to do so, he has violated Canons 1, 2[A], 3(C)(1)(c) and 5(C)(1) and (7).
“The Commission further notes that, in a document entitled ‘Answer to a Matter Not Within Notice of Formal Proceedings,’ filed with the Commission on November 17, 1992, Respondent called to the Commission’s attention another real estate transaction in which Respondent and his wife purchased property which had previously been the subject of litigation and in which Respondent had signed a journal entry setting aside an order of sale. The Notice of Formal Proceedings was not amended to add this property as a separate count, but Respondent’s actions reveal the same insensitivity to the appearance of impropriety exhibited in the real estate transactions described in Counts II and III.”
D. Exception Taken by Respondent
Respondent takes the following exception:
“5. In Counts II and III, Respondent exercising all reasonable care could not have been aware that the real estate he subsequently purchased was the same property in which he signed routine orders earlier.”
E. Discussion and Resolution of Charged Misconduct
The Commission notes in its conclusions that the actions of respondent show an insensitivity to the appearance of impropriety in this real estate transaction under Count III. We agree with these observations. We further concur in the Commission s conclusion that the ownership of the property by a lending institution should have prompted an inquiry by respondent as to whether the subject property was involved in any litigation in the district court, whether or not respondent was a judge of record in any proceeding involving this property.
We conclude that respondent’s activities violated Canons 1, 2A, 3C(l)(c), and 5C(1). We, however, conclude that the provisions of Canon 5C(7) do not apply to the transaction involved under Count III. We therefore conclude that respondent did not violate the provisions of Canon 5C(7) as found by the Commission.
IV
A. The Charge
“COUNT IV
“It is alleged that Respondent, the Hon. Paul D. Handy, who was at the time a Judge of the District Court of the 25th Judicial District, did engage in certain conduct which violated the provisions of Canon 1 of the Rules of the Supreme Court Relating to Judicial Conduct which provides, inter alia-,
‘A judge should uphold the integrity ... of the judiciary.”
and Canon 2 which provides
‘A judge should avoid impropriety and the appearance of impropriety in all his activities.
‘A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity ... of the judiciary.’
and Canon 5C(1) which provides:
‘A judge should refrain from financial and business dealings which tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.’
“The facts which it is alleged constitute violation of these Canons include the following:
“At the same time that Respondent was first presiding over and then purchasing an asset from the Estate of Laverne Bourne, as set out in Count II, Respondent had commenced a business relationship with the owner of another piece of real property, a condominium, located nearby the property he purchased from the Bourne Estate, 817 Kensington.
“After a period of time in which Respondent had inquired of Mr. Joe Hollis, of Garden City, Kansas, whether the latter would sell Respondent a condominium Mr. Hollis owned at 1022 Kensington, Garden City, Kansas, Respondent finally signed a contract to purchase that condominium on November 26, 1990. Respondent believed that the contract was not contingent upon his selling another home that he owned at 1609 Longhorn. Mr. Hollis’ contract with Respondent was not dependent upon a financing contingency. At least through the week of March 18, 1991, Respondent believed he and Mr. Hollis had a contract.
“On March 15 and March 16, 1991, Respondent told Mr. Hollis that he might be able to close the purchase of Mr. Hollis’ property prior to the pending closing date of March 29, 1991.
“At the time of those comments to Mr. Hollis, Respondent’s lendor, Western State Bank, had already begun accumulating documents to accomplish a purchase money mortgage loan to Respondent on 817 Kensington, the Bourne condominium.
“On March 18, 1991, Respondent signed an offer to purchase the Bourne condominium.
“On March 19, 1991, an executed contract between Respondent as buyer and the Estate of Laverne Bourne as seller was in existence.
“On March 19, 1991, Respondent called Mr. Hollis and told him he did not think he would be able to perform on the contract.
“On March 22, 1991, Mr. Hollis called Respondent to appeal to his sense of fairness to honor the contract that he had signed. During that conver sation, Mr. Hollis complained to Respondent that the latter had already signed a new contract on another piece of property, at which time Respondent denied that there was a contract in existence that was executed. That statement was not accurate.
“Prior to the time Mr. Hollis knew that there was a final contract on the Bourne condominium, and Respondent indicated that he was going to change his mind about honoring his contract, Mr. Hollis had kept his condominium off of the sale market since he had a contract with Respondent.
“On March 28, 1991, Joe Hollis as plaintiff filed a lawsuit against Respondent in the District Court of Finney County, Kansas, which was personally served upon Respondent March 28, 1991.
"Respondent closed the sale of his own house, 1609 Longhorn, on March 29, 1991. Pie did not notify any of the realtors involved in that sale or any of the lendors or the buyers, Mr. and Mrs. Jerry Brown, that he had been sued the day prior so that they might make some determinations whether to proceed and how to proceed in light of the pending lawsuit, which was prior in time to the closing of the sale transaction. In addition, Respondent did not notify Western State Bank of the pendency of a lawsuit, which included a claim for damages against him prior to the closing of his loan on the Bourne condominium. Had he informed them of that situation, the circumstances or requirements of the loan would have changed.
“During Respondent’s conversations with Maggie Dale, the realtor who was the buyer’s agent in the Bourne transaction, he informed said realtor drat he still had a contract with Mr. Hollis but that everything with Mr. Plollis was okay and there would be no problem. Ms. Dale believed there would be no problem because she trusted Respondent, he was a judge.
“Respondent also informed Maggie Dale that the fact that there was a lawsuit pending involving him would be no problem and it would be taken care of. Respondent said to her, ‘who knows, I could be buying two places.’ Subsequently, Ms. Dale found out that there was a cloud on Mr. and Mrs. Brown’s title in the purchase of Respondent’s former home at 1609 Longhorn.
“After Mr. Hollis filed his lawsuit on March 28, 1991, against Respondent, represented by his attorney, Ken Havener, Respondent’s deposition was taken August 30, 1991. In the deposition, Respondent stated under oath that when he talked to Mr. Plollis on the date Mr. Hollis identifies as March 22, 1991, he had not signed a contract to purchase another property. That testimony was not true.
“Some time after the deposition was taken, Mr. Hollis received in the mail, in an envelope bearing the name ‘Paul D. Handy’ for a return address, copies of three pages from the statute book relating to assessment of costs for lawsuits out of the Code of Civil Procedure of the Kansas Statutes Annotated. Mr. Plavener had not given Respondent permission as the attorney for Mr. Plollis to contact Mr. Hollis directly. Mr. Hollis took the material he received as a threat from the Judge, but he continued to pursue his claim against Respondent.”
B. Commission’s Findings of Fact
The findings of fact of the Commission on Count IV, agreed to by respondent and adopted by this court, are as follows:
“COUNT IV
(Hollis Litigation)
“27. Respondent knows Joseph Hollis, a chiropractor in Garden City.
“28. He has known Dr. Hollis for a number of years; they were social acquaintances, not close friends.
“29. Respondent knew Dr. Hollis owned a condominium at 1022 Ken-sington in Garden City that was located on a development at the Southwind Country Club. The development had a clubhouse, a swimming pool, golf facilities, and a number of other condominiums and other homes in the area. It was one of the more desirable subdivisions of real estate in Garden City.
“30. The condominiums and single family residences at this development were $100,000, plus, properties.
“31. It was desirable to have a house or condominium backing up to the golf course and Respondent had discussions with Dr. Hollis about the possible purchase of the property that he (Dr. Hollis) owned at Southwind.
“32. On November 26, 1990, Respondent entered into a contract for the purchase of certain real property located at 1022 Kensington Boulevard, Garden City, Kansas, with Dr. Joseph N. Hollis.
“33. On January 2, 1991, Connie Barnum, a loan officer for Western State Bank, the lender for a purchase money mortgage on 1022 Kensington, wrote Respondent a letter ‘to advise you that your request for a mortgage loan to purchase 1022 Kensington has been approved. This is subject to the sell (sic) of your present home.’
“34. Closing on the sale of the condominium from Dr. Hollis to Respondent was originally set for January 31, 1991. However, ‘Paul Handy had a property [Longhorn] on the market for sale, the closing date [for the Kensington condominium] was contingent upon the sale of his property and if he was unable to close January 31 as agreed upon he also had a clause put in the contract that he would want me to keep the property off the market for three months and he would pay the condominium fees and my mortgage note for those 90 days, which moved the closing date up to about the end of March.’
“35. Respondent’s property (the Longhorn residence) didn’t sell by January 31, 1991, and ‘the contract was just left open as agreed for the 90 day extension in the contract.’
“36. On February 20, 1991, a ‘Residential Contract for Sale of Real Estate’ was executed by Paul D. Handy and Noreene Handy, as Sellers, and Jerry Wayne Brown and Susan Claire Brown, as Buyers, for the property located at 1609 Longhorn Drive, Garden City, Kansas. This was Respondent’s then existing residence.
“37. Dr. Hollis testified he had a conversation with Respondent at breakfast in the Hilton on Saturday, March 16, 1991, at which time Respondent advised Dr. Hollis he might be able to close sooner on the condominium at 1022 Kensington Place.
“38. Dr. Hollis also testified that he next had a conversation with Respondent on March 19, 1991, at approximately 4:00 p.m. and Respondent ‘advised me that he was not going to honor the contract or to close on the contract.’
“39. Dr. Hollis further testified that at that time Respondent had a contract on other real property and Dr. Hollis did not know that.
“40. Respondent testified that Hollis agreed to rescission of their contract and that their conversation occurred prior to March 18, 1991, when the Respondent signed a contract on the Bourne Estate property. There was no evidence of any written rescission.
“41. Dr. Hollis testified that he learned of Respondent’s contract on the Bourne property on March 20.
“42. Dr. Hollis checked with the Coldwell Banker real estate office in Garden City and was told there was a contract on the LaVerne Bourne Estate condominium signed by both parties (Respondent and the Executor).
“43. On March 22, 1991, Dr. Hollis talked by telephone with Respondent. T called Paul Handy and appealed [to] his conscience to go ahead and honor his contract with me . . . and I confronted with him that he had contracted on another condominium and he denied it . .' . he said the contract wasn’t signed. He said it wasn’t a done deal yet.’
“44. On March 28, 1991, a civil action was filed in the District Court of Finney County, Kansas, captioned Joseph N. Hollis v. Paul D. Handy, Case No. 91C89. Respondent was personally served with Summons and a copy of tire Petition on March 28, 1991, at 4:40 p.m.
“45. On March 29, 1991, the sale closing occurred on Respondent’s residence at 1609 Longhorn Drive, Garden City, to Jerry and Susan Brown. Respondent did not attend the closing.
“46. Respondent did not notify the realtors, the lenders, or the buyers of the property at 1609 Longhorn Drive prior to the closing on March 29, 1991, that he had been sued and served with process on March 28, 1991, by Joseph Hollis concerning the property at 1022 Kensington Boulevard.
“47. Maggie Dale testified she was a realtor in Garden City; that she had known Respondent and sold him real estate; and that she was involved with Respondent as a realtor in the Bourne estate transaction as well as the Magnolia property transaction (Count III). Ms. Dale said she was upset upon learning of the Hollis lawsuit but that Respondent told her ‘everything would be fine’ and ‘who knows whether I’m buying two pieces of property or not.’
“48. On April 4, 1991, Respondent closed his purchase on the property at 817 Kensington Boulevard and did not notify the Western State Bank prior to such closing of the pendency of the Hollis suit against him.
“49. All issues and all matters in controversy arising in Case No. 91C89 were settled by compromise, and the case was dismissed pursuant to the Order signed by Judge Larry T. Solomon on May 14, 1992. (The parties agree that this stipulation does not preclude assertion of tire claims now pending before the Commission on Judicial Qualifications.)
“50. On May 7, 1992, counsel for Joseph Hollis, Kenneth Havener, sent a letter to Respondent reflecting preparation of the Order of Dismissal, the amount of the settlement, and the fact said amount represented full and final settlement of the case.”
C.Commission’s Conclusions of Law
The conclusions of law of the Commission on Count IV are as follows:
“COUNT IV
“7. The Commission finds that Respondent’s conduct violated Canons 1 and 2[A].
“8. Respondent testified that Dr. Hollis orally agreed to a rescission of the contract. Without a written rescission, Respondent should have known that an oral agreement regarding real estate was questionable. In fact, Respondent’s remark to Maggie Dale that he might be purchasing two properties indicates that he knew the agreement was questionable.
“9. Respondent argues that the Hollis law suit could not have clouded the title on the sale of Respondent’s residence (a homestead); therefore, there was no duty for Respondent to advise the realtors, lenders or his buyer of the law suit prior to the closing on his sale and purchase. To the contrary, the Commission believes that the lender, the purchaser of his property and the realtor were all entitled to know of the Hollis law suit that had been filed. In both his dealings with Hollis and his dealings with his lender and purchaser, Respondent was less than candid and this conduct constituted violations of the applicable Canons.’ ”
D. Exception Taken by Respondent
Respondent takes no exception to the Commission’s conclusions of law with reference to Count IV.
E. Discussion and Resolution of Charged Misconduct
We agree with and adopt the conclusions of law of the Commission. We conclude that respondent’s activities did violate Canons 1, 2A, and 5C(1).
Public confidence in the judicial system is eroded by irresponsible and improper conduct by judges. We have concluded that respondent’s act constituted violations of the Canons of Judicial Conduct, as set forth above. The acts of respondent are inimical to and incompatible with the high standards of conduct imposed on members of the judiciary. The lack of sensitivity to the conflict of interest, the appearance of impropriety, and respondent’s lack of candor in one of his transactions all go to establish violations of the canons set forth above and tend to erode public confidence in the judiciary.
The majority of the Commission recommended that respondent be disciplined by public censure. While we are not bound by the recommendation of the Commission, we believe that the Commission correctly judged the actions of respondent. The conduct of respondent merits discipline no less substantial than that recommended by the Commission.
We therefore conclude that Paul D. Handy should be and he is hereby publicly censured by this court and directed to pay the costs of this proceeding. This order shall be published in the official Kansas Reports and shall constitute the public record in this matter.
It Is So Ordered. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals the revocation of her probation following her guilty plea to felony theft by deception, contrary to K.S.A. 21-3701(b). Defendant contends the district court (1) abused its discretion in revoking her probation and (2) lacked jurisdiction to accept her plea because she was charged under the general theft statute, K.S.A. 21-3701, instead of the welfare fraud statute, K.S.A. 39-720. The Court of Appeals reversed and remanded to the district court with orders to vacate the conviction. The State’s petition for review was granted.
The facts are not in dispute. While Reed and her husband were separated, she applied for and received assistance from both the ADC and Food Stamp programs. Her husband, who was employed, moved back into the home, and Reed was no longer eligible for public assistance. Reed, however, failed to inform the appropriate authorities that her husband was again living with her, and she continued to receive assistance.
Reed was charged with one count of felony theft by deception, K.S.A. 21-3701, and three counts of making a false writing, K.S.A. 21-3711. Pursuant to a plea agreement, Reed pled guilty to felony theft, and the State dismissed the false writing charges. The district court sentenced Reed to a term of 1 to 5 years. Reed was granted probation for three years with the following conditions: that she obtain employment, make restitution of $3,522 to the State, perform 100 hours of community service, attend the New Start counseling group, and cooperate with SRS in regard to her daughter, who was in SRS custody.
Ten months after sentencing, the State moved to revoke Reed’s probation based on her failure to make monthly restitution payments, attend New Start regularly, obtain employment, complete the required 100 hours of community service, and cooperate with SRS in regard to her daughter. The district court found that Reed had failed to comply with the terms of her probation. The court revoked probation and ordered her to serve the sentence imposed. Reed appealed to the Court of Appeals.
In addition to her claim on appeal that the district court had improperly revoked her probation, Reed argued for the first time that her conviction must be vacated, claiming the district court lacked jurisdiction to accept her plea because she had been erroneously charged with theft by deception, K.S.A. 21-3701(b), instead of welfare fraud, K.S.A. 39-720. Reed cited State v. Wilcox, 245 Kan. 76, 775 P.2d 177 (1989), and State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), as authority to vacate her conviction.
The State argued the prosecution had proved each element of welfare fraud, K.S.A. 39-720, plus an additional element of intent to permanently keep the property required to prove theft, and Reed’s conviction should be affirmed. The State’s position was premised on the welfare fraud statute’s use of K.S.A. 21-3701 to define the penalty for 39-720, and it asserted this did not affect her conviction under K.S.A. 39-720.
The Court of Appeals first reviewed Reed’s challenge to the jurisdiction of the district court to accept her plea to theft alleged in the complaint. It noted that under a similar set of facts in State v. Wilcox, 245 Kan. 76, Syl. ¶ 2, this court had determined that “K.S.A. 39-720 is the proper statute under which persons accused of welfare fraud should be prosecuted.”
In Wilcox, the defendant had received payment from SRS to assist her in the care of her children. Wilcox informed SRS and signed affidavits stating that she never received certain payments from SRS. The agency issued warrants to replace those payments. Later, SRS discovered that Wilcox had cashed the original pay warrants. Wilcox was charged with making a false writing in violation of K.S.A. 21-3711. Wilcox waived her preliminary examination and at arraignment entered pleas of not guilty to the charges. A few days after her arraignment, Wilcox filed a motion to dismiss the charge against her, claiming the complaint was defective because it failed to charge the more specific crime of welfare fraud. After the hearing on the motion, the district court found that the charges were not brought under the proper statute and dismissed the complaint.
This court had observed in Wilcox that K.S.A. 39-720 was “to punish those who obtain or attempt to obtain public assistance by deception.” 245 Kan. at 77. We noted that the statute Wilcox was charged under, K.S.A. 21-3711, proscribed the making of a false writing and was not a specific statute concerning welfare fraud. We pointed out that K.S.A. 21-3711 is a general statute which includes a far greater range of activity than that included within the ambit of K.S.A. 39-720. We then reiterated the well-established rule 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 intended to make the general act controlling. We upheld the district court’s dismissal of the complaint.
In reviewing our decision in Wilcox, the Court of Appeals noted that the legislature enacted K.S.A. 39-720 to create an independent crime of welfare fraud to enforce the Social Welfare Act. The Court of Appeals, citing State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987), as authority, found that it was clear that K.S.A. 21-3701, which proscribes theft in its various manifestations, was not a specific statute concerning welfare fraud. The Court of Appeals determined K.S.A. 39-720 specifically proscribed welfare fraud or attempted welfare fraud. Rased on Mi-cheaux, the Court of Appeals concluded that because Reed was improperly charged under 21-3701, the district court had no jurisdiction to accept Reed’s plea. It vacated Reed’s conviction based upon theft. The issue of whether the district court abused its discretion in revoking Reed’s probation was found to be moot.
A review of other cases shows that the Court of Appeals misapplied Wilcox when it vacated Reed’s sentence. In Williams, 250 Kan. 730, the defendant was charged with one count of indecent liberties with a child, K.S.A. 1992 Supp. 21-3503. During the preliminary examination, evidence was adduced that the child Williams sexually molested was his 14-year-old step-granddaughter. At the conclusion of the hearing, Williams moved to dismiss the complaint, arguing that the evidence presented by the State showed the more specific crime of aggi'avated incest had been committed rather than the crime charged, indecent liberties with a child. The judge granted Williams’ motion to dismiss, finding that the legislature intended the more specific crime of aggravated incest to apply to the facts in evidence. The State appealed.
In Williams, as in Wilcox, we pointed out that when there is a conflict between a statute dealing generally with a crime and another statute dealing specifically with a certain phase of the crime, the specific statute controls unless the legislature intended to make the general crime controlling. We then noted that although the elements of the two crimes are similar, the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child, while such a family relationship is not an element in the crime of indecent liberties with a child. After reviewing the statutes, we found it was clear that the legislature intended that aggravated incest, a crime committed by a person related to the victim, be a less serious offense than when a similar act is perpetrated by a person who has no such family relationship with the child. We concluded that when a defendant is related to the victim as set forth in K.S.A. 21-3603(1), the State may charge the defendant with aggravated incest for engaging in the acts prohibited by that statute, but not with indecent liberties with a child.
In State v. Sims, 253 Kan. 1, 862 P.2d 359 (1993), we pointed out that our conclusion in Williams and the corresponding statement in Syl. ¶ 4 caused some to erroneously believe that if the State alleges in the complaint that an individual committed the offense of indecent liberties with a child, the court is without jurisdiction to proceed if the person accused is related to the victim. A clearer statement of the point of law decided in Williams is: Where a defendant is charged in a complaint with a general sexual offense (rape, sodomy, indecent liberties with a child, etc.) and, at the conclusion of the preliminary examination moves to dismiss the complaint on the basis that the evidence has established that the alleged victim is within that degree of kinship to the defendant as would render the offense to be within the definition of the specific offense of aggravated incest, the State may either proceed to arraign the defendant on an information charging the crime of aggravated incest or dismiss the complaint.
In Sims, the grandfather of the 17-year-old female was convicted of rape, aggravated criminal sodomy, and aggravated incest. Seven months after his conviction, the defendant filed a motion to arrest judgment on the charges of rape and aggravated criminal sodomy. Based on our decision in Williams, Sims claimed the district court had no jurisdiction to convict him of those offenses. After reviewing Williams, the district judge noted that the legislature intended aggravated incest, a crime committed by a person related to the defendant, to be a different crime than indecent liberties with a child, a similar prohibited act committed by a defendant without a family relationship. The district court arrested Sims’ convictions for rape and aggravated criminal sodomy. The State appealed the order arresting judgment.
In Sims we pointed out that Williams actually dealt with a challenge to the sufficiency of the evidence at the preliminary examination and not with lack of jurisdiction because the charging instrument was insufficient. We determined that the district court had jurisdiction to proceed; therefore, Sims could not challenge the jurisdiction of the court by a motion to arrest judgment.
In Williams the defendant moved to dismiss the complaint at the conclusion of the preliminary examination. In Wilcox, a few days after being arraigned, the defendant filed a motion to dismiss the complaint. Neither Williams nor Wilcox challenged the sufficiency of the charging document; both claimed that the State’s evidence indicated that a lesser crime than charged by the State had been committed. In each case we noted the well-established rule 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 intended to make the general act controlling, had been applied after the judge heard evidence and determined the proper charge against Williams and Wilcox.
Reed, as did the defendant in Sims, confuses a challenge to the sufficiency of the complaint with a claim that the court did not have jurisdiction to sentence her because she had improperly pled guilty to theft, a general crime which she had not committed, rather than to welfare fraud, the crime she actually committed. The sufficiency of the charging document is measured by whether: (1) it contains the elements of the offense intended to be charged, (2) it sufficiently apprises the defendant of what he or she must be prepared to meet, and (3) it is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. K.S.A. 22-3201; State v. Micheaux, 242 Kan. at 197.
A defendant may challenge the sufficiency of the complaint, information, or indictment charging a felony crime during three stages of the proceedings. At the preliminary examination, the defendant may have the complaint dismissed if the complaint is defective or the court is without jurisdiction. The charges will also be dismissed if the State fails to produce sufficient evidence to show either that a crime has been committed or that the defendant committed the crime. If the magistrate finds from the evidence it appears that a felony has been committed and there is probable cause to believe that the defendant committed it, the defendant is bound over for arraignment. K.S.A. 22-2902. The determination of probable cause at the preliminary examination is not a challenge to the sufficiency of the complaint; it is only to determine from the evidence adduced at the hearing if a felony has been committed.
Prior to trial, the defendant has another opportunity to attack any defects in the complaint, including failure to state a crime, as well as the jurisdiction of the court. Failure to present any such defenses or objections constitutes a waiver. K.S.A. 1992 Supp. 22-3208(3). The final opportunity for a defendant to challenge the sufficiency of the charging instrument or the jurisdiction of the court prior to sentencing is by a motion to arrest judgment, which must be filed within a period of 10 days after the defendant is found guilty, whether by trial or otheiwise. K.S.A. 22-3502. See generally State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990).
Sims’ final challenge to his conviction was that he was charged with and convicted of the wrong crime. We noted that question had previously been decided by this court in State v. McCool, 34 Kan. 617, 9 Pac. 745 (1886). In McCool, McCool was charged in an information with the offense of stealing a trunk and some wearing apparel contained within the trunk, having an aggregate value of more than $25. McCool was convicted of grand larceny and sentenced to serve a term of three years. After his conviction, McCool filed a motion to arrest judgment, claiming that the evidence adduced at trial did not support the charge in the information but that if any offense was shown to have been committed by the evidence, it was that of embezzlement (a separate crime) and not grand larceny. The district court denied McCool’s motion to arrest judgment. McCool appealed.
This court noted that McCool claimed the evidence did not support the crime charged but did support a separate crime. We pointed out that the grounds upon which a judgment may be arrested are specifically prescribed in the statute and are first, that tire grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of its not being within the jurisdiction of the court, and second, that the facts stated do not constitute a public offense. We observed that the cause alleged by the defendant was not among those enumerated in the statute and affirmed the trial court’s denial of McCool’s motion to arrest judgment. This court in Sims stated a judgment cannot be arrested upon the ground that the evidence offered does not support the charge made against the defendant. 254 Kan. 1, Syl. ¶ 9.
Because Wilcox, Williams, and Sims dealt with sufficiency of the evidence for the crime charged and not with whether the district court had jurisdiction to accept Reed’s plea to theft by deception, we must shift our focus to State v. Gibbens, 253 Kan. 384, 855 P.2d 937 (1993). Gibbens pled nolo contendere to two counts of rape. The district judge imposed the maximum sentence on each count, with the sentences to run consecutively. On appeal the defendant claimed that his sentence was excessive and the trial court lacked jurisdiction to accept his plea because the two victims were his stepdaughters and that he should have been charged with violating the more specific statute of aggravated incest rather than rape. To show the district court lacked jurisdiction, Gibbens relied on the statement in Williams that where a biological, step, or adoptive relationship exists between offender and child victim, aggravated incest is the specific crime to be charged as opposed to the more general crime of indecent liberties with a child. See K.S.A. 21-3603; K.S.A. 1992 Supp. 21-3503.
Without distinguishing Williams, we noted that Gibbens was raising the question of jurisdiction as an issue for the first time on appeal, which under the circumstances was actually a collateral attack on the district court’s acceptance of his nolo contendere pleas. We concluded Gibbens had cited no authority for the proposition that the aggravated incest-rape argument was a jurisdictional matter. We noted that the information on its face contained all allegations necessary for the conviction of the defendant on both counts of rape. We pointed out that Gibbens was aware of the results of a guilty plea. We concluded that the district court had jurisdiction to accept Gibbens’ plea of nolo contendere to the rape charges.
Reed was represented by counsel. She understood the nature of the charges, the effect of the guilty plea, and the sentence that could be imposed. The fact that the evidence does not support the charge to which the defendant pled guilty does not require that the plea be later vacated. The Court of Appeals erred when it vacated Reed’s plea to theft by deception.
Reed alleges the district com't automatically revoked her probation once the probation violation was established, without con sidering the reasons for the violation, citing State v. Duke, 10 Kan. App. 2d 392, 699 P.2d 576 (1985), and that the court abused its discretion in revoking her probation. The Court of Appeals did not reach these issues.
Duke is distinguishable from the present case because here the district court’s decision was based upon more than just Reed’s failure to make restitution. The district court specifically noted Reed’s failure to attend therapy, her failure to faithfully seek and obtain employment, and her failure to cooperate with SRS. Further, there is evidence that Reed voluntarily agreed to forego enforcing support payments from her ex-husband in exchange for her having sole custody of the children.
Reed asserts that she lacked the financial wherewithal to either pay restitution and/or continue counseling, that her five absences at New Start do not warrant her probation being revoked, and that on four of those five absences she contacted her probation officer following the absence. Finally, she contends that she attempted to comply with the requirement of 100 hours of community service, and that although she failed to provide the required verification of community service, such a shortcoming does not justify the court’s revocation of her probation.
The State counters that there is ample evidence to support the trial court’s decision and that Reed’s failure to comply with probation conditions did not result solely from her financial circumstances. The record reflects that Reed failed to comply with several conditions of her probation. After making the first few restitution payments, Reed failed to make any further payments, despite her probation officer’s advice that Reed at-least make a nominal monthly payment as a good faith effort. In addition, Reed missed five New Start meetings, failing to obtain permission to do so prior to each absence. Reed also failed to adequately seek employment and obtain a job. The court also determined that Reed voluntarily failed to enforce support payments due her from her ex-husband. Reed had apparently agreed not to enforce support payments in return for her ex-husband’s promise not to seek joint custody of the children.
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991). The court did not abuse its discretion in revoking Reed’s probation.
The judgment of the Court of Appeals is reversed. The judgment of the district court is affirmed. | [
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In July and August of 1992, respondent Jerry Michael Cullen, while employed by Fireman’s Fund Insurance Company, Kansas City, Missouri, used six fraudulent claim accounts to embezzle $18,999.75 from the insurance company and attempted to embezzle an additional $9,088.11 through two additional fraudulent claim accounts.
He was arrested by officers of the Kansas City, Missouri, Police Department on July 26, 1993, and, on September 8, 1993, placed on a Missouri Pretrial Diversion Program with supervision. On November 16, 1993, respondent voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1993 Kan. Ct. R. Annot. 185).
This court, having examined the files of the Office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Jerry Michael Cullen be and he is hereby disbarred from the practice of law in the State of 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 Jerry Michael Cullen from the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187). | [
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The opinion of the court was delivered by
Davis, J.:
This appeal arises out of a punitive damage award in a wrongful death and survivor action. None of the issues involve the award of compensatory damages.
The facts giving rise to the cause of action are as follows.
Near midnight on September 15, 1987, defendant Albert Prin-tup was driving a moving van southeast in the right lane on the Kansas Turnpike near the Andover exit. He lost control of the van, jackknifed, crossed the median, and collided with a pickup truck operated by Carolyn S. Elliott. Glen C. Smith was a passenger in the pickup driven by Ms. Elliott. As a result of the collision, Ms. Elliott died instantly. Mr. Smith suffered massive chest and other severe injuries but had a pulse and was breathing and groaning after impact. He died at the scene. Albert Printup survived.
Albert Printup was employed by Southwest Movers, Inc. (Southwest). He was paid a flat salary, with no bonuses for extra hours or miles. At the time of the accident, he had been “leased out” to American Red Ball Transit Company, Inc., (Red Ball) for the last four to five years. He had not driven for anyone else during that period of time. Red Ball dispatched him, and he turned in his shipping documents and driving logs to Red Ball. He turned in his expense receipts to Southwest for reimbursement.
Plaintiffs sued Printup, Southwest, and Red Ball for wrongful death and, with respect to Mr. Smith, for pain and suffering. The court allowed the Smith plaintiffs to amend their complaint to seek punitive damages in accordance with K.S.A. 1992 Supp. 60-3703 against Southwest, Printup, and Red Ball in conjunction with their survivor action. The court ruled that punitive damages were not recoverable in the wrongful death actions.
From the very beginning, plaintiffs challenged the constitutionality of K.S.A. 1992 Supp. 60-3701. The trial court rejected this contention and found the statute to be constitutional. On summary judgment, the trial court rejected plaintiffs’ claim that they were entitled to punitive damages based on the allegation that Southwest and Red Ball negligently hired, retained, supervised, and trained Albert Printup. The court allowed Smith to present punitive damage claims against the corporate defendants, but, in accordance with K.S.A. 1992 Supp. 60-3701(d)(l), only to the extent that the corporate defendants authorized or ratified Printup’s conduct. The jury determined that punitive damages should be awarded against Printup and Red Ball, but not against Southwest. The court awarded punitive damages in the amount of $20,000 against Printup and $100,000 against Red Ball.
This was a long and hard-fought case. The record on appeal is voluminous. In addition to the parties’ briefs, the Kansas Trial Lawyers Association has filed an amicus curiae brief. Most issues raised are questions of law not dependent upon the facts. Some issues, however, are fact sensitive, and, to the extent necessary, those facts will be discussed in the opinion so that the reader may better understand our decision.
Plaintiffs raise 11 separate issues; Printup raises two issues in his cross-appeal; and Red Ball raises one issue in its cross-appeal. All issues center upon the court’s award of punitive damages. No party has appealed the jury verdict awarding compensatory damages.
Plaintiffs raise the following issues:
1. Is K.S.A. 1992 Supp. 60-3701 unconstitutional because it violates the right to a jury trial, the right to due process, and/or the right to equal protection?
2. Did the trial court err in holding that Elliott’s heirs could not bring a punitive damage claim under the wrongful death statute?
3. Did the trial court err in limiting plaintiffs’ theories of recovery by prohibiting plaintiffs from asserting an independent claim against Red Ball and Southwest for negligent hiring, training, supervision, or retention of Printup?
4. Did the trial court err in excluding evidence about Red Ball’s operations before November 8, 1984, and in limiting evidence about Red Ball’s safety program and other Red Ball drivers’ conduct?
5. Did the trial court err in excluding evidence about Southwest’s recordkeeping practices and the qualifications and conduct of other Southwest drivers?
6. Did the trial court err in instructing the jury about what conduct by Red Ball or Southwest amounted to ratification or authorization of Printup’s conduct?
7. Did the trial court err in refusing to require Red Ball to produce certain financial and parent company information for use in the post-trial proceedings to determine the amount of punitive damages?
8. Did the trial court err during the post-trial proceedings by admitting evidence of post-accident conduct to mitigate punitive damages and by admitting contents of settlement negotiations?
9. Did the trial court err in refusing to hold Red Ball jointly and severally liable for the punitive damage award assessed against Printup?
10. Did the trial court err in refusing to assess treble damages against Printup and Red Ball as part of the punitive damage award?
11. Did the trial court abuse its discretion in determining the amount of punitive damages?
In his cross-appeal, Printup raises the following issues:
1. Did the trial court err in submitting to the jury Smith’s claim of pain and suffering?
2. Did the trial court err in submitting to the jury Smith’s claim that Printup’s conduct was wanton?
Finally, Red Ball contends in its cross-appeal that the court erred by allowing punitive damages on the jury’s single finding that Red Ball ratified Printup’s conduct when no post-accident conduct was shown.
(1) IS K.S.A 1992 SUPP. 60-3701(a) UNCONSTITUTIONAL?
As a preliminary matter, we note that K.S.A. 1992 Supp. 60-3701 applies only to causes of action accruing on or after July 1, 1987, and before July 1, 1988. K.S.A. 1992 Supp. 60-3701(i). Language identical to the language plaintiffs challenge, however, is included in K.S.A. 1992 Supp. 60-3702, which applies to causes of action accruing on or after July 1, 1988. K.S.A. 1992 Supp. 60-3702(h). Our holding, therefore, applies equally to 60-3702.
Plaintiffs contend that the following provisions of K.S.A. 1992 Supp. 60-3701(a) render the statute unconstitutional:
“In any civil action in which exemplary or punitive damages are recoverable, the trier of fact shall determine, concurrent with all other issues presented, whether such damages shall be allowed. If such damages are allowed, a separate proceeding shall he conducted by the court to determine the amount of such damages to be awarded." (Emphasis added.)
Plaintiffs argue that at common law, the jury, not the court, determined the amount of punitive damages. They argue that legislative action requiring the court to determine the amount of punitive damages violates their rights to equal protection guaranteed by the Fourteenth Amendment of the United States Constitution, substantially impairs their rights to trial by jury guaranteed by § 5 of the Bill of Rights of the Kansas Constitution, and denies them due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.
A. Right to Equal Protection
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Appellants argue that 60-3701 violates equal protection because it treats tort victims seeking punitive damages differently than it treats other tort victims.
Equal protection becomes an issue when legislation treats “arguably indistinguishable” classes of people differently. See, e.g., Ross v. Moffit, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). K.S.A. 1992 Supp. 60-3701 treats all tort victims seeking punitive damages equally. Such tort victims are “arguably indistinguishable” from one another, but are distinguishable from other tort victims. By allowing recovery of punitive damages in certain cases, the law always has treated the victims of particularly egregious conduct differently from other tort victims. K.S.A. 1992 Supp. 60-3701 does not create a classification that results in disparate treatment of similarly situated individuals. Its application does not violate the Equal Protection Clause of the United States Constitution.
B. Right to Trial by Jury
Plaintiffs also argue that 60-3701 violates their right to trial by jury because it requires that the court determine the amount of punitive damages to be awarded. More specifically, plaintiffs claim that because punitive damages were determined by a jury at common law, the Kansas Constitution guarantees a jury determination of the amount of punitive damages. Section 5 of the Bill of Rights of the Kansas Constitution provides: “The right of trial by jury shall be inviolate.”
In response to this argument, Red Ball argues that there is no vested right to punitive damages, and therefore there is no constitutional right to a jury determination of the amount of punitive damages. Southwest argues that the lack of a right to punitive damages, coupled with the nature and purpose of punitive damages, permits legislative modification of the procedure by which the amount of punitive damages is determined.
As with most meritorious issues, there is an element of truth in each of the parties’ conflicting contentions. Punitive damages are not awarded to a plaintiff as a matter of right, and punitive damages were available at common law subject to the jury’s determination in a proper case.
As early as 1888, the Kansas Supreme Court held that punitive damages are
“not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his wrongful acts, and that it if proper for the public to impose them upon the defendant as punishment for such wrongful acts in the private action brought by the plaintiff for the recovery of the real and actual damages suffered by him.” Schippel v. Norton, 38 Kan. 567, 572, 16 Pac. 804 (1888).
A claim for punitive damages is not a “cause of action” triable to a jury; a punitive damage award is incident to and dependent upon the recovery of actual damages. Schippel notes:
“Where no actual damage is suffered, surely no exemplary damages can be allowed. Exemplary damages can never constitute the basis of a cause of action. They are never more than incidents to some action for real and substantial damages suffered by the plaintiff; and when given they are given only in addition to the real and actual damages suffered and recovered by him. . . . No right of action for exemplary damages, however, is ever given to any private individual who has suffered no real or actual damages. He has no right to maintain an action merely to inflict punishment upon some supposed wrongdoer. If he has no cause of action independent of a supposed right to recover exemplary damages, he has no cause of action at all.” 38 Kan. at 572.
At common law and today,- a claim for punitive damages exists only incidental and subject to a cause of action for actual damages. See Moore v. State Bank of Burden, 240 Kan. 382, 390, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987).
Although no right to punitive damages exists, punitive damages were available at common law. As early as 1864, this court made it clear that the availability of punitive damages had long been recognized in law. In Malone v. Murphy, 2 Kan. 250, 262 (1864), the court said:
“We would rather adopt the compensatory theory, believing it to be more nearly logically correct; but the other having been long established, recognized and acted upon by enlightened Courts, we are not disposed to change it where a change would make no difference in the results.”
The availability of punitive damages continued in early decisions of this court. See L. & G. Rld. Co. v. Rice, 10 Kan. *426, Syl. ¶ 3 (1872); Wiley v. Keokuk, 6 Kan. 94, 106-07 (1870). Exemplary damages are available today in various tort actions “involving circumstances or ingredients of malice, fraud, oppression or willful and wanton disregard of another’s rights.” Note, Survey of Tort Damages, 14 Washburn L. J. 466, 472 (1975).
In those early cases cited above, the jury determined the amount of punitive damages. See Rice, 10 Kan. *426, Syl. § 3; Wiley, 6 Kan. at 106; Malone, 2 Kan. at 257. So it remained until the legislature enacted what is now K.S.A. 1992 Supp. 60-3701. Perhaps the most definitive statement of a jury’s role prior to the adoption of 60-3701 is set forth in Folks v. Kansas Power & Light Co., 243 Kan. 57, 76, 755 P.2d 1319 (1988):
“A plaintiff has no right to punitive damages except when awarded by the jury under the common law. Whether to award punitive damages and in what amount is for the jury to determine. When awarded, punitive damages are reviewed by the trial judge if requested by post-trial motion. . . . The award of punitive damages will not be set aside unless the trial judge finds that the award (1) was based on passion, prejudice, or bias; (2) was based on mistake of law or fact; or (3) lacked evidentiary support.”
Thus, at common law, punitive damages were available, and the jury determined whether such damages were to be awarded and, if so, the amount to be awarded.
In Craig v. Hamilton, 213 Kan. 665, 670, 518 P.2d 539 (1974), we said that “[a] litigant’s right to a jury trial guaranteed by Section 5 of the Bill of Rights of the Constitution of the State of Kansas refers to that right as it existed at common law.” More recently, in Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 342, 757 P.2d 251 (1988), we noted that “ ‘[t]rial by jury is guaranteed only in those cases where the right existed at common law.’ ” As discussed above, juries historically have determined the amount of punitive damages in Kansas. The question, we must resolve, however, is whether the fact that juries historically have determined the amount of punitive damages rises to the level of a right that existed at common law.
There is no question in Kansas that the right to trial by jury includes the right to have a jury determine actual damages. See Malpractice Victims, 243 Kan. at 342-43. The basis for this finding is twofold. First, the amount of damages is a fact question, and juries traditionally decide issues of fact. Second, the availability of damages distinguishes the suit at law from one in equity, and suits at law were tried to a jury at common law. Thus, the court has reasoned that it would be illogical to try a case to a jury because damages are sought, but not allow the jury to determine the amount of damages. 243 Kan. at 343.
The above reasoning does not require a jury determination of the amount of punitive damages. We must look to the character of the claim to determine whether it is one for which a right to trial by jury exists. In Estey v. Holdren, 126 Kan. 385, 387, 267 Pac. 1098 (1928), this court said:
“The substance of the pleadings, not the label designated by the pleader, determines the character of an action. [Citations omitted.] When a cause [of action] is properly justiciable before a jury such a trial may not be denied without the assent of parties. [Citations omitted.]”
In Nusz v. Nusz, 155 Kan. 699, 701, 127 P.2d 441 (1942), the Supreme Court stated: “The issues raised by the pleadings determine the nature of an action, and where the issue is essentially one justiciable at common law a jury trial may be demanded as a matter of right.”
Although the amount of punitive damages may be regarded as a fact question, punitive damages are different from compensatory damages. Compensatory damages are the subject of yet another constitutional right. Section 18 of the Kansas Bill of Rights guarantees a “remedy by due course of law, and justice administered without delay.” Compensatory damages fall into the category of a remedy at common law. As noted above, however, punitive damages were not considered a remedy at common law, but merely incident to those causes of action in tort requesting compensatory damages. We do not regard punitive damages as compensatory in any way, Brewer v. Home-Stake Production Co., 200 Kan. 96, Syl. ¶ 1, 434 P.2d 828 (1967), and there is no right to punitive damages. Schippel, 38 Kan. at 572. Punitive damages are not awarded because of any special merit in the plaintiffs case. Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 12, 605 P.2d 545 (1980). The express purpose of punitive damages is and has. been to punish the tortfeasor and to deter it and others from committing similar wrongs in the future. Folks, 243 Kan. 57, Syl. ¶ 6; Nordstrom, 227 Kan. 59, Syl. ¶ 12; Wiley, 6 Kan. at 107. No separate right of action existed at common law for punitive damages. Schippel, 38 Kan. at 572.
Indeed, while the availability of actual damages distinguishes legal from equitable actions and, thus, historically determined when a jury trial was available, punitive damages may be regarded as equitable in nature. In Digital & Analog v. North Supply, 63 Ohio St. 3d 657, 590 N.E.2d 737 (1992), the Ohio Supreme Court determined that a plaintiff was not entitled to a jury determination of the amount of attorney fees. The court’s analysis of this issue is instructive. The court determined that it was “wholly appropriate to treat attorney fees in the same manner as punitive damages with respect to whether such an issue is to be presented to a jury.” 63 Ohio St. 3d at 662. The Ohio court found that an award of attorney fees is “a punitive (and thus equitable) remedy.” 63 Ohio St. 3d at 662. In Ohio, as in Kansas, the right to jury trial does not exist if the relief sought is equitable in nature. 63 Ohio St. 3d at 662.
Given the character of a claim for punitive damages, the fact that juries historically determined punitive damages at common law does not establish that such determination was a right at common law. Because a plaintiff does not have a right to punitive damages, the legislature could, without infringing upon a plaintiff’s basic constitutional rights, abolish punitive damages. If the legislature may abolish punitive damages, then it also may, without impinging upon the right to trial by jury, accomplish anything short of that, such as requiring the court to determine the amount of punitive damages or capping the amount of the punitive damages.
We have reviewed other jurisdictions to determine how courts have addressed the constitutionality of statutes that restrict the availability of punitive damages or require a portion of the punitive damages award to be paid into a state fund. Eight states require payment of some portion of punitive damages award to the state or state-sponsored funds. These states are:
1. Colorado (Colo. Rev. Stat. § 13-21-102[4] [1987])
2. Florida (Fla. Stat. § 768.73[2][b] [1993 Supp.])
3. Georgia (Ga. Code Ann. § 51-12-5.l[e][2] [1993 Supp.])
4. Iowa (Iowa Code § 668A.l[2][b] [1993])
5. Missouri (Mo. Rev. Stat. § 537.675[2] [1992 Supp.])
6. New York (N.Y. Civ. Prac. L. & R. § 8701 [McKinney 1993 Supp.])
7. Oregon (Or. Rev. Stat. § 18.540[1] [1991])
8. Utah (Utah Code Ann. § 78-18-1[3] [1992])
Of the four states that have addressed the constitutionality of such provisions, two have held such statutes to be unconstitutional and two have held the statutes to be constitutional.
In Kirk v. Denver Pub. Co., 818 P.2d 262 (Colo. 1991), the Colorado Supreme Court held that a statute requiring payment of one-third of the punitive damage judgment to the state general fund was an unconstitutional taking of private property without just compensation. The basis of this opinion, however, is not helpful in an analysis of the question we have before us because the court’s decision is based upon the existence of a judgment creating a property interest deserving constitutional protection. The court held that the provisions of Colo. Rev. Stat. § 13-21-102(4), requiring payment of one-third of a punitive damage judgment to the state general fund, violated the federal and state constitutional proscriptions against the taking of private property without just compensation because the statute allowed the taking of a judgment creditor’s property interest in the judgment without any constitutionally permissible government interest. 818 P.2d at 264.
The United States District Court for the Middle District of Georgia held unconstitutional two provisions of Georgia’s tort reform statute: (1) Ga. Code Ann. § 51-12-5.1(e)(1), which allowed only one punitive damage award against a product liability defendant, regardless of the number of causes of action that may arise from the liability, and (2) Ga. Code Ann. § 51-12-5.1(e)(2), which required payment to the state treasury of 75% of a punitive damage award in a product liability case, less a proportionate share of litigation costs. McBride v. General Motors Corp., 737 F. Supp. 1563 (M.D. Ga. 1990).
The court found both provisions unconstitutional on their faces because they impermissibly discriminated against product liability plaintiffs. 737 F. Supp. at 1569. The court specifically found that the Georgia statute violated equal protection because there was no rational basis for the statute’s disparate treatment of product liability plaintiffs. 737 F. Supp. at 1578.
Unlike the Georgia provisions at issue in McBride, which applied only to product liability plaintiffs, Kansas does not create an impermissible classification of tort victims.
In Gordon v. State, 585 So. 2d 1033 (Fla. App. 1991), a Florida appellate court upheld the constitutionality of Fla. Stat. § 768.73(2)(b), which, at the time, required payment of 60% of the punitive damage award to the state General Revenue Fund or Public Medical Assistance Trust Fund, depending on the type of cause of action. The Florida court found that there was no unconstitutional taking of property without due process because a plaintiff had no protectable right to recover punitive damages. Additionally, the court concluded that there was no violation of a substantive due process right because the statute had a rational relationship to a legitimate legislative objective. In deciding the issue, the Florida appellate court held that punitive damages are allowed based solely on public policy and, thus, a claim for punitive damages “is subject to the plenary authority of the ultimate policy-maker . . ., the legislature.” 585 So. 2d at 1035. It is difficult to reconcile this holding with the Colorado Supreme Court decision in Kirk v. Denver Pub. Co.
Finally, in Shepherd Components v. Brice Petrides, et al., 473 N.W. 2d 612 (Iowa 1991), the Supreme Court of Iowa upheld the constitutionality of Iowa Code § 668A.l(2)(b), which required payment of 75% of a punitive damage award to the state Civil Reparation Trust Fund. In line with our decision here today, the court noted that under Iowa law, “punitive damages are not allowed as a matter of right and are discretionary.” The Iowa Supreme Court noted that punitive damages are not intended to be compensatory and that “a plaintiff is a fortuitous beneficiary of a punitive damage award simply because there is no one else to receive it.” 473 N.W. 2d at 619. The court concluded that the plaintiff did not have a vested right to punitive damages before entry of a judgment. “Consequently, we hold that the trial court’s distribution of punitive damages does not violate plaintiff’s constitutional rights.” 473 N.W. 2d at 619.
Our research discloses seven jurisdictions that limit the availability of punitive damages. Of the seven, five states disallow punitive damages unless expressly allowed by statute or other rule of law. In Connecticut, Nebraska, and Vermont, this prohibition applies only to specific types of cases. Conn. Gen. Stat. § 47-212 (1993) (applies to cases arising under the Common Interest Ownership Act); Neb. U.C.C. 1-106 (1992); Vt. Stat. Ann. tit. 9A, § 1-106(1) (1966) (apply to cases arising under the Uniform Commercial Code). In New Hampshire and South Dakota, the prohibition appears to be a general prohibition applicable to all civil actions. N.H. Rev. Stat. Ann. § 507:16 (1992 Supp.); S.D. Codified Laws Ann. § 21-1-4 (1987).
Two states limit the availability of punitive damages in medical and/or legal malpractice actions. Illinois prohibits punitive damages in “healing art and legal malpractice cases.” Ill. Rev. Stat. ch. 735, para. 5/2-1115 (1993). Oregon prohibits punitive damages against licensed, registered, or certified health practitioners for conduct regulated by the license and within the scope of conduct for which the license was issued. Or. Rev. Stat. § 18.550 (1991).
Two additional states restrict the availability of punitive damages by common law. Louisiana courts have held that Louisiana law does not allow punitive damages. See, e.g., Hall v. Scott, 416 So. 2d 223 (La. App. 1982); Universal C.I.T. Credit Corp. v. Jones, 47 So. 2d 359 (La. App. 1950). Although Louisiana does not have a specific statute that disallows punitive damages, the case law appears to be based on a statutory provision that requires tortfeasors to “repair” damage they do. Because the statute only requires reparation, the courts have concluded that it does not permit punitive damages. See, e.g., Ricard v. State, 382 So. 2d 190 (La. App. 1980).
Nebraska similarly does not allow punitive damages in civil actions. See, e.g., Miller v. Kingsley, 194 Neb. 123, 124, 230 N.W. 2d 472 (1975). The rule is based on an interpretation of the Nebraska State Constitution. As noted above, Nebraska’s UCC also prohibits punitive damages in cases arising thereunder unless specifically allowed by statute. Neb. U.C.C. § 1-106(1) (1992). We have been unable to discover any cases addressing the constitutionality of the case law or UCC provision in Nebraska.
Finally, the Illinois Supreme Court has upheld the constitutionality of the state’s statute barring awards of punitive damages in actions for healing art or legal malpractice. Bernier v. Burris, 113 Ill. 2d 219, 497 N.E. 2d 763 (1986). In upholding the constitutionality of this statute, the court determined that the prohibition at issue did not offend equal protection because it was rationally related to a legitimate government goal of avoiding excessive liability. 113 Ill. 2d at 246. Not unlike our case in Kansas of malpractice victims, the court also distinguished punitive damages from compensatory damages.
The above cases and statutes from other jurisdictions provide little, if any, support in addressing the question with which we are faced. Our decision is based upon the Kansas Constitution. The Seventh Amendment of the United States Constitution has not been held to apply to the states.
We note one recent case that addresses more directly the issue with which we are concerned in this case. In Henderson v. Al abama Tower Co., 627 So. 2d 878 (Ala. 1993), 12-year-old Craig Henderson brought suit, by and through '»his mother, against Alabama Power Company for injuries he sustained while playing on a tower owned and operated by Alabama Power Company. His head contacted one of the power lines, resulting in an electrical “flash” that knocked him from the tower -and severely injured him. The suit was based on negligence .and wantonness. The court proceeded to trial and the -jury, after deliberation, awarded Henderson $15,303.84 in compensatory damages and $500,000 in punitive damages. Alabama Power Company moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial; and for a remittitur of the.punitive damages award. Henderson, in a motion for declaratory judgment and for entry of judgment in excess of $250,000, challenged the constitutionality of Ala. Code, § 6-11-21 (1975), which, .subject to enumerated exceptions, limits to $250,000 jury awards of punitive damages.
The Alabama Supreme Court held that-this statute violated the Alabama Constitution which, not unlike the Kansas Constitution, provides “that the right of trial by jury shall remain inviolate.”
Alabama had previously held in the case of Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991), that Ala. Code, § 6-5-544(b) (1975), which limited to $400,000 the amount of “non-economic” damages recoverable in a medical malpractice action, violated the plaintiff’s right to trial by jury as guaranteed by art. 1, § 11 of the Alabama Constitution. In deciding the present case, Alabama drew no distinction between compensatory and punitive damages as it related to plaintiff’s right to trial by jury. In analyzing the issue, the Alabama Supreme Court relied partially on a prior decision wherein the court had held that the jury trial right protected by art. 1, § 11 of the 1901 constitution is the right as it existed at common law:
“ ‘The right ... is confined to those classes of cases in which the right existed at common law, or in which it was used at the time of the adoption of the Constitution.’ Gilbreath v. Wallace, 292 Ala. 267, 270, 292 So. 2d 651, 653 (1974), quoting Alford v. State ex rel. Attorney General, 170 Ala. 178, 188-89, 54 So. 213, 215-16 (1910) (Mayfield, J., dissenting).” Henderson, 627 So. 2d at 884.
In our case law, we have extended constitutional protection to rights which existed at common law, but we have said nothing about those classes of cases in which a jury may have been used at the time of the adoption of the Kansas Constitution. We have drawn a clear distinction between compensatory and punitive damages. We know that both compensatory and punitive damages were determined by juries at common law and at the time our constitution was adopted. At the same time, only compensatory damages existed as a right, a cause of action, and a remedy at that time. The method of determining punitive damages at common law was by jury trial. However, all of our cases recognized that a plaintiff has no vested right to punitive damages and that no right, cause of action, or remedy existed in Kansas separate and apart from an action for compensatory damages.
In Henderson, Justice Houston notes in his dissenting opinion that “ ‘[e]xemplary damages are in no case a right of the plaintiff, but are assessed at the discretion of the jury for the purpose indicated. . . . The state had the right to remit [punitive] damages, and by implication did so when it passed the act of ratification/ ” Henderson, 627 So. 2d at 909. He further notes: “All Justices agree that no citizen has a right to recover punitive damages; therefore, there is no life, liberty, or property interest of a plaintiff involved where punitive damages are concerned.” Henderson, 627 So. 2d at 912.” He further notes that Justice Scalia, in his concurrence in the judgment in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 39, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991), wrote: “ ‘State legislatures and courts have the power to restrict or abolish the common-law practice of punitive damages.’ ”
Justice Maddox, also dissenting in part in Henderson, notes that the Alabama Supreme Court had held, not unlike the earlier holdings in Kansas law, that the legislature had the power to abolish the cause of action entirely and not merely the power to limit the recovery in an action. Henderson, 627 So. 2d at 899 n.11. As in Justice Maddox’s conclusion, we have concluded above that if the legislature or courts have the power to abolish punitive damages altogether, then our legislature certainly has the right to modify the method by which those damages are determined. Plaintiffs in this case have not attacked the right of the legislature to cap punitive damages but have alleged that vesting the right to determine punitive damages in a judge instead of a jury violates their rights to a trial by jury and the Kansas Constitution. We find nothing in the Kansas Constitution or the common law of this state that prevents the legislature from vesting the determination of punitive damages in a district court instead of requiring that function to be performed by a jury.
C. Right to Due Process
Plaintiffs argue that because juries determined punitive damages at common law, any change by the legislature must comport with due process requirements of the Kansas and United States Constitutions. Plaintiffs rely upon this court’s opinion in Kansas Malpractice Victims Coalition, 243 Kan. at at 343-44:
“[A]ny statutory modification of the common law must meet due process requirements and be ‘reasonably necessary in the public interest to promote the general welfare of the people of the state.’ [Citation omitted.] Due process requires that the legislative means selected have a real and substantial relation to the objective sought. [Citation omitted.] One way to meet due process requirements is through substitute remedies.”
Kansas Malpractice Victims Coalition deals with statutory limitations on a plaintiff’s right to compensatory damages:
“Section 5 of the Bill of Rights of the Kansas Constitution provides that the right of trial by jury shall be inviolate. It guarantees the right of every citizen to trial by jury. ‘The right of trial by jury is a substantial and valuable right. The law favors trial by jury and the right should be carefully guarded against infringement.’ Waggener v. Seever Systems, Inc., 233 Kan. 517, 520, 664 P.2d 813 (1983) (quoting Bourne v. Atchison, T. & S.F. Rly. Co., 209 Kan. 511, 497 P.2d 110 [1972]). ‘Trial by jury is guaranteed only in those cases where the right existed at common law.’ Kimball, et al. v. Connor, et al., 3 Kan. *414, *432 (1866). Common law allows for recovery of damages for negligent injury (Tefft v. Wilcox, 6 Kan. *46 [1870]), and therefore the right to jury trial applies here.”
Kansas Malpractice Victims Coalition deals exclusively with a remedy for actual damages and does not in any way address punitive damages. Unlike compensatory damages, no separate cause of action existed for punitive damages, and punitive damages were not considered a remedy at common law. A plaintiff had no right to punitive damages at common law.
The legislative change from jury to judge in the determination of the amount of punitive damages does not, therefore, affect a common-law right, a common-law cause of action, or a remedy by due course of law at common law. The legislative change from jury to judge in determination of the amount of punitive damages does not affect plaintiffs’ right to trial by jury under the Kansas Constitution. The legislature was free, therefore, to choose the method of determining punitive damages without implicating plaintiffs’ due process rights.
(2) DID THE TRIAL COURT ERR IN HOLDING THAT ELLIOTT’S HEIRS COULD NOT RRING A PUNITIVE DAMAGE CLAIM UNDER THE WRONGFUL DEATH STATUTE?
Carolyn Sue Elliott died instantly. In her wrongful death action, her heirs sought punitive damages. The court held that punitive damages were not recoverable in a wrongful death action.
In 1905, this court decided that punitive damages were not available in wrongful death actions. In Railway Co. v. Townsend, 71 Kan. 524, Syl. ¶ 4, 81 Pac. 205 (1905), the court held that the statutory wrongful death cause of action was “for pecuniary loss sustained by the relatives of the deceased, and exemplary damages may not be allowed.” After reviewing the law from other jurisdictions, the court concluded that “with a few exceptions, exemplary damages are not allowed [in wrongful death actions] unless expressly provided for by constitution or statute.” 71 Kan. at 532. The court reaffirmed Townsend in Rochester v. Express Co., 87 Kan. 164, 123 P. 729 (1912), but has not addressed the issue since that time. The plaintiffs argue that Folks v. Kansas Power & Light Co., 243 Kan. 57, 755 P.2d 1319 (1988), implicitly overruled Townsend, but, as defendants note, Folks included a survivor action, which supported a punitive damages claim. 243 Kan. at 58.
Plaintiffs make a very persuasive argument urging us to overrule Townsend. Plaintiffs note that it is illogical to allow punitive damages if the victim survives but to deny them if the tortfeasor succeeds in killing the victim. Plaintiffs also refer us to other jurisdictions that have allowed punitive damages in wrongful death actions even though not expressly allowed by statute.
Nevertheless, the message of Townsend is that because the cause of action is purely a creature of statute, the only damages available in wrongful death actions are those expressly allowed by the wrongful death statute. The statute establishing the cause of action limits damages to compensatory damages in that it allows maintenance of an action “for the damages resulting” from the death of a person caused by the wrongful act or omission of another. K.S.A. 60-1901. Moreover, K.S.A. 1992 Supp. 60-1904(a) provides:
“Damages may be recovered for, but are not limited to:
(1) Mental anguish, suffering or bereavement;
(2) loss of society, companionship, comfort or protection;
(3) loss of marital care, attention, advice or counsel;
(4) loss of filial care or attention;
(5) loss of parental care, training, guidance or education; and
(6) reasonable funeral expenses for the deceased.” (Emphasis supplied.)”
Although the “but are not limited to” language might suggest punitive damages are recoverable, K.S.A. 1992 Supp. 60-1903(c) clarifies the intimation of 60-1901 that only actual damages are recoverable. K.S.A. 1992 Supp. 60-1903(c) requires the trier of fact to render an itemized verdict that reflects the amount awarded for nonpecuniary damages, expenses for the care of the deceased caused by the injury, and other pecuniary damages. It makes no provision for punitive damages. Clearly, the statute on wrongful death in Kansas does not contemplate punitive damages.
A recent Kansas Law Review comment analyzes the availability of punitive damages in wrongful death actions in Kansas and in other states. See Comment, Punitive Damages in Wrongful Death Actions: How will Kansas Respond?, 39 Kan. L. Rev. 199 (1990). In addition to Kansas, the comment identifies 20 states and the District of Columbia that do not allow punitive damages in wrongful death actions. 39 Kan. L. Rev. at 208-09. The wrongful death statutes in 11 states expressly allow recovery of punitive damages. 39 Kan. L. Rev. at 208, n. 55. The comment identifies 16 states that allow punitive damages even though they do not have a statute that expressly allows such recovery. 39 Kan. L. Rev. at 211-12.
The wrongful death action is a creature of statute, and we do not believe that the Kansas Legislature intended the wrongful death statute to permit an award of punitive damages. In Townsend, 71 Kan. at 532, the statute at issue did not expressly provide for punitive damages, and the court concluded that punitive damages were therefore not available in a wrongful death action. Likewise, our present statute does not authorize punitive damages and specifically identifies the type of damages that are recoverable. In accordance with earlier decisions of this court, absent an express provision in the statute authorizing punitive damages, we conclude that punitive damages are not recoverable in a wrongful death action in Kansas.
(3) DID THE TRIAL COURT ERR IN LIMITING PLAINTIFFS’ THEORIES OF RECOVERY BY PROHIBITING PLAINTIFFS FROM ASSERTING AN INDEPENDENT CLAIM AGAINST RED BALL AND SOUTHWEST FOR NEGLIGENT HIRING, TRAINING, SUPERVISION, OR RETENTION OF PRINTUP?
Plaintiffs contended at trial and contend on appeal that Southwest and Red Ball were not only vicariously liable for Printup’s wrongdoing, but also that they were negligent in hiring, training, supervising, and/or retaining Printup. Plaintiffs advance these claims in an effort to establish an independent basis for their claims for punitive damages against Red Ball and Southwest. The district court granted in part defendants’ motion for summary judgment on these claims, and allowed plaintiffs to pursue their claims for punitive damages only on the bases allowed by K.S.A. 1992 Supp. 60-3701(d)(l) — that Southwest and/or Red Ball authorized or ratified Printup’s conduct.
Although an argument might be made that the trial court should have allowed plaintiffs to proceed on their theory of negligent hiring, training, retention, and/or supervision with respect to compensatory damages, that issue is not presented to the court. Plaintiffs concede that their
“appeal is not taken on any question relating to the liability of defendants for actual damages or the amount of actual damages. The appeal is taken on those orders and issues which relate to the trial court’s limitation on the theories and evidence presented on punitive damage claims, liability of the defendants for punitive damages, and the amount of punitive damages awarded.”
K.S.A. 1992 Supp. 60-3701(d)(l) limits the availability of punitive damages against an employer or principal for the acts of an employee or agent:
“(d) In no case shall exemplary or punitive damages be assessed pursuant to this section against:
(X) A principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the prinicpal or employer.”
Plaintiffs contend that if the employer or principal is independently liable for its own negligent acts in hiring, training, supervision, or retaining the employee/agent, then the limitation in (d)(1) would not apply.
Whether the employer’s liability is premised on the principle of negligent hiring/retention or the principle of respondeat superior, the employer’s liability is based on the acts of an agent or employee. An employer is not liable for damages for negligently hiring an employee unless and until the employee’s conduct causes damage to another. K.S.A. 1992 Supp. 60-3701(d)(2) limits an employer’s liability for punitive damages for its employee’s conduct to those cases in which the employer authorized or ratified the employee’s conduct.
• There are several theories under which an employer may be liable for its employee’s misconduct. We recently summarized these theories in Thies v. Cooper, 243 Kan. 149, Syl. ¶ 1, 753 P.2d 1280 (1988):
“An employer is liable for the tortious acts of an employee only under special circumstances. Special circumstances exist when the employee is on the employer’s premises, performing work for the employer, or using the employer’s chattel; when the employer voluntarily assumes a duty to control the employee; or when the employer negligently retains a known incompetent or unfit employee.”
Before enactment of 60-3701, a corporation could be liable for punitive damages because of an employee’s tortious acts committed during the course of employment under the following specific circumstances:
“(a) a corporation or its managerial agent authorized the doing and manner of the act; (b) the employee was unfit and the corporation or its managerial agent was reckless in employing or retaining him; (c) the employee was employed in a managerial capacity and was acting within the scope of employment; or (d) the corporation or its managerial agent ratified or approved the act of the employee.” Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, Syl. ¶ 4, 666 P.2d 711 (1983).
Although Kline expressly allowed recovery of punitive damages based on reckless hiring or retention, 60-3701(d)(l) changed the above rule and specifically limited the circumstances in which a corporation could be liable for punitive damages for its employee’s tortious acts to those described in (a) (authorization) and (d) (ratification) in Kline.
In this case, defendants admitted vicarious liability for actual damages. The only bases on which punitive damages could be assessed against Southwest or Red Ball were ratification or authorization. The employer’s or principal’s alleged negligent acts in hiring, training, supervising, or retaining the employee/agent may not be advanced as a separate claim for punitive damages. The trial court correctly limited the claims for punitive damages to those available under 60-3701(d)(l) based on the employer’s or principal’s authorization or ratification of Printup’s questioned conduct.
(4) DID THE TRIAL COURT ERR IN EXCLUDING EVIDENCE ABOUT RED BALL’S OPERATIONS BEFORE NOVEMBER 8, 1984, AND IN LIMITING EVIDENCE ABOUT RED BALL’S SAFETY PROGRAM AND OTHER RED BALL DRIVERS’ CONDUCT?
(5) DID THE TRIAL COURT ERR IN EXCLUDING EVIDENCE ABOUT SOUTHWEST’S RECORDKEEPING PRACTICES AND THE QUALIFICATIONS AND CONDUCT OF OTHER SOUTHWEST DRIVERS?
Red Ball does not really respond to (4) and (5) above. Southwest argues that the court properly excluded the evidence about Southwest because it was unrelated to the cause of the accident. Southwest also complains that plaintiffs’ proffer of this evidence was improper because it was in the form of affidavits signed by plaintiffs’ counsel. Southwest is partially correct. The affidavit was signed by plaintiffs’ counsel, but it also contains citations to deposition testimony and exhibits. The reference to sworn testimony and exhibits protects plaintiffs’ proffer from being discarded on a matter of form. The proffer satisfies K.S.A. 60-405.
Plaintiffs argue that the trial court erroneously excluded evidence pertinent to whether exemplary damages should be awarded. The jury determined that exemplary damages should be awarded against Red Ball and Printup but not against Southwest. Plaintiffs argue that the jury may well have concluded punitive damages should have been awarded against Southwest if the evidence had been admitted. They also argue that the exclusion of the evidence further prejudiced them in the court’s determination of the amount of exemplary damages to be awarded against Red Ball and Printup.
The evidence in question involved the following:
(1) evidence of events that occurred before November 8, 1984, including evidence of Printup’s previous driving under the influence (DUI) convictions, Printup’s safety violations, Printup’s driving record, a Department of Transportation safety audit of Red Ball, and Red Ball’s allegedly inadequate review and audit procedures;
(2) evidence concerning Red Ball’s allegedly inadequate safety program;
(3) evidence concerning the qualifications and conduct of other Red Ball and Southwest drivers; and
(4) evidence concerning Southwest’s recordkeeping practices.
Because liability and compensatory damages are not at issue in this appeal, admissibility of the above evidence is governed by the provisions of K.S.A. 1992 Supp. 60-3701(d)(l):
“(d) In no case shall exemplary or punitive damages be assessed pursuant to this section against:
(1) A principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer.”
Before we address the precise question raised, three questions must be answered concerning the application of the statute: (1) What is meant by “authorized” and “ratified”; (2) what is meant by the phrase “the questioned conduct”; and (3) what is meant by the words “a person expressly empowered to do so on behalf of the principal or employer”?
(a) Authorized and ratified
K.S.A. 1992 Supp. 60-3701 et seq. does not define authorization or ratification. There is no pattern jury instruction in Kansas that defines the terms. In its instructions to the jury, the court did not define the term authorization, which presents a problem that will be discussed later in this opinion. The court did define ratification to mean “the acceptance of a course of conduct or act with an intent to ratify, and with full knowledge of all the material circumstances.”
Webster’s Third New International Dictionary 146 (1986) defines “authorize” to mean: “to endorse, empower, justify, or permit by or as if by some recognized or proper authority (as custom, evidence, personal right, or regulating power). . .: SANCTION.” It defines “ratify” as: “to approve and sanction esp. formally (as the act of an agent or servant): make (as a treaty) valid or legally operative: CONFIRM.” Webster’s Third New International Dictionary 1885. Black’s Law Dictionary 133 (6th ed. 1990) defines “authorize” as follows:
“To empower; to give a right or authority to act. To endow with authority or effective legal power, warrant, or right. [Citation omitted.] To permit a thing to be done in the future. It has a mandatory effect or meaning, implying a direction to act.
“ ‘Authorized’ is sometimes construed as equivalent to ‘permitted’; or ‘directed’, or to similar mandatory language. Possessed of authority; that is, possessed of legal or rightful power, the synonym of which is ‘competency.’ [Citation omitted.]”
Black’s Law Dictionary 1262 defines “ratify” as follows: “To approve and sanction; to make valid; to confirm; to give sanction to.”
This court has defined authorization and ratification in the context of whether an agent has authority to act on a principal’s behalf. In agency law, express authority exists “if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act.” Mohr v. State Bank of Stanley, 241 Kan. 42, Syl. ¶ 2, 734 P.2d 1071 (1987). Accord Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, Syl. ¶ 8, 827 P.2d 24 (1992). An agent has implied authority if
“it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal.” Mohr, 241 Kan. 42, Syl. ¶ 3.
Accord Barbara Oil Co., 250 Kan. 438, Syl. ¶ 8.
In the context of agency law, we have defined ratification as “the adoption or confirmation by a principal of an act performed on his behalf by an agent, which act was performed without authority.” Schraft v. Leis, 236 Kan. 28, Syl. ¶ 9, 686 P.2d 865 (1984).
Kansas has not addressed the definition of the above terms under the provisions of 60-3701(d)(l). However, the above cited Kansas cases and the following cases from other jurisdictions that allow punitive damages against employers for ratifying or authorizing employees’ wrongful conduct are instructive. Other jurisdictions with statutes similar to 60-3701(d)(l) have held that knowledge of an employee’s wrongful conduct, coupled with failure to discipline the employee, amounts to implied ratification or authorization. See, e.g., Khalid Bin Talal Etc. v. E.F. Hutton & Co., 720 F. Supp. 671, 683 (N.D. Ill. 1989) (applying Illinois law, company’s awareness of illegal trading activity and allowing it to continue “more than suffices to constitute authorization ... as well as ratification”); Hart v. National Mortgage & Land Co., 189 Cal. App. 3d 1420, Syl. ¶ 7, 235 Cal. Rptr. 68 (1987) (plaintiff’s allegations that superiors were aware of harassment but did nothing to discipline coworker sufficient to allege employer’s ratification of coworker’s misconduct); Hartman v. Shell Oil Co., 68 Cal. App. 3d 240, Syl. ¶ 3, 137 Cal. Rptr. 244 (1977) (management’s knowledge of employee’s fraudulent representations coupled with failure to discharge or reprimand employee are among the factors that supported the jury’s finding that corporation authorized or ratified employee’s conduct); Wirig v. Kinney Shoe Corp., 448 N.W.2d 526, 534 (Minn. App. 1989), aff’d in part, rev’d in part on other grounds 461 N.W.2d 374 (Minn. 1990) (corporation implicitly ratified employee’s harassment of coworker by observing it and allowing it to continue unchecked).
Some courts have held that an employer’s actual knowledge and obvious tolerance of the employee’s misconduct is not required. For example, general corporate policies can “authorize” employee misconduct. In Templin v. Mountain Bell Tel. Co., 97 N.M. 699, Syl. ¶ 4, 643 P.2d 263 (Ct. App. 1982), the New Mexico Court of Appeals held that summary judgment was improper because a genuine issue of material fact existed regarding whether the phone company’s general policies authorized procedures that ultimately permitted installation of an off-premises extension of a woman’s phone in her ex-husband’s apartment. The testimony at trial indicated that the employees did not violate any company policy or procedure in granting the ex-husband’s request for the off-premises extension. 97 N.M. at 701-04.
An employer’s failure to investigate its employees’ wrongful conduct also can justify imposition of punitive damages. In upholding a punitive damage award against a corporate employer based on ratification/authorization in a sexual harassment action, the United States District Court for the District of Ohio found that the management knew or “should have known” that the harassing employee was wrongfully withholding the plaintiff’s performance evaluations and salary reviews. The court stated that the harasser’s “failure to appraise plaintiff’s work, in addition to the rumors about him circulating among . . . managerial employees, should have prompted his superiors to investigate the situation. However, no action was taken.” Shrout v. Black Clawson Co., 689 F. Supp. 774, 783 (S.D. Ohio 1988). Accord Brink’s, Inc. v. City of New York, 546 F. Supp. 403, 412 (S.D.N.Y. 1982).
At least one court has declined to impose punitive damage liability for ratification/authorization where the employer did not have actual knowledge of the employee’s wrongful act. In Commercial Credit Equipment Corp. v. Stamps, 920 F.2d 1361 (7th Cir. 1990), a credit company filed a declaratory judgment action against an alleged debtor to determine the debtor/defendant’s liability on a note. The defendant had claimed from the beginning that the loan documents were forged and, as it turned out, they were forged. The defendant attempted to impose liability on the credit company for punitive damages for its employee’s fraud, alleging that by filing the declaratory judgment action, the credit company ratified the employee’s forgery of the documents. The court rejected this contention, finding that the company was entitled to rely on the documents in its possession even though the alleged debtor always maintained they were forged. The court noted:
“(If the lender must accept as truthful any allegations of forgery, its business enterprise would be short lived.) . . . Inferring ratification of fraud from a finance company’s collection efforts, when the loan documents turned out to be forged, would place finance corporations in an untenable Catch-22 position whenever a debtor claims that loan documents are false.” 920 F.2d at 1370.
Stamps, however, is distinguishable from the other cases discussed above wherein there were facts that should have put the employer on notice that the employee was engaged in misconduct.
Based upon the dictionary definitions, Kansas case law, and the law of other jurisdictions, we hold that authorization under the provisions of K.S.A. 1992 Supp. 60-3701(d)(l) may be either express or implied and generally is accomplished before or during the employee’s questioned conduct. It may be based on an express grant of authority or on a course of conduct indicating that the employee was empowered or given the right or authority to engage in the questioned conduct. Ratification under the provisions of 60-3701(d)(l) may be either express or implied and may be accomplished before, during, or after the employee’s questioned conduct. It may be based on an express ratification or based on a course of conduct indicating the approval, sanctioning, or confirmation of the questioned conduct.
(b) Questioned conduct
K.S.A. 1992 Supp. 60-3701(d)(l) requires that an employer authorize or ratify the employee’s conduct that gives rise to the cause of action. In other words, the conduct that is authorized or ratified must be causally connected to the resulting harm.
This interpretation is consistent with Kansas law regarding employers’ liability for employees’ misconduct. See, e.g., Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan. App. 2d 302, 307-08, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978) (approving instruction in negligent hiring claim that required a causal connection between the employee’s dangerous propensities and the injuries suffered). We conclude that there must be a determination that the corporate defendants authorized or ratified the conduct of Printup that proximately caused the accident.
(c) By a person expressly empowered to do so on behalf of the principal or employer
K.S.A. 1992 Supp. 60-3701(d)(l) requires that the principal or employer authorize or ratify, or that a person expressly empowered to do so on behalf of the principal or employer authorize or ratify, the questioned conduct. As stated above, both authorization and ratification may be based on a course of conduct indicating that the employee was empowered to engage in the questioned conduct or that the employer implicitly approved or sanctioned the questioned conduct. Therefore, when 60-3701(d)(l) states that “unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer,” it necessarily refers to a person provided with the express authority to act on behalf of and bind the principal or employer. For example, a managing agent of an employer or principal normally would possess the express power to bind the employer or principal. Thus, a managerial agent acting on behalf of the principal or employer could ratify or authorize an agent’s or employee’s questioned conduct within the meaning of those terms under 60-3701(d)(l). In this connection, the words of the Kline decision are instructive: “(a) a corporation or its managerial agent authorized the doing and manner of the act; ... or (d) the corporation or its managerial agent ratified or approved the act of the employee.” 233 Kan. 988, Syl. ¶ 4. The statutory phrase does not require that the person be expressly empowered to authorize or ratify the questioned conduct of the agent or employee but only that the person be expressly empowered to act on behalf of and bind the principal or employer.
Having addressed how 60-3701(d)(l) is generally to be applied, we now consider its application to the questioned evidence. The trial court excluded evidence of pre-November 1984 occurrences because they were too remote in time to be relevant. It is not clear precisely why the court selected November 8, 1984, but it appears to have selected the date in part to give Red Ball the opportunity to correct problems the Department of Transportation (DOT) identified during an audit. While we agree that conduct nearly three years before the accident may be remote in time, evidence of a course of causally related misconduct over a three- or-more-year period is relevant. Thus, if the conduct at issue occurred only before November 8, 1984, we agree with the trial court that it is not relevant to the cause of action and properly was excluded. If there is evidence of causally related misconduct that occurred before November 8, 1984, and after November 8, 1984, the evidence of the pre-November 1984 conduct nevertheless is relevant because it shows a long-term pattern of the same misconduct. We offer the following guidance with respect to the specific categories of pre-November 1984 evidence about which plaintiffs complain.
Plaintiffs primarily argue that evidence of Printup’s previous DUI convictions was relevant to their negligent employment claims. They also contend, however, that such evidence indicates the corporate defendants’ indifference to and disregard of safety considerations and, thus, it is relevant to punitive damages. There was, however, no evidence that Printup’s use of alcohol caused or contributed to the accident. Highway Patrol Officer Heryford testified that he secured blood samples from each party involved in the accident and sent those samples to the Kansas Bureau of Investigation for analysis. He testified that the results of the analysis had no bearing on the accident. Absent some evidence that Printup’s use of alcohol caused or contributed to the accident, we need not address whether Red Ball’s or Southwest’s alleged disregard of Printup’s prior DUI convictions amounted to ratification or authorization of driving under the influence. Absent some connection to the accident, evidence of Printup’s' prior DUI convictions is not relevant or admissible. The trial court did not err in excluding evidence of Printup’s pre-November 1984 DUI convictions.
Plaintiffs also argue that the trial court erroneously excluded evidence of the results of Red Ball’s 1983 DOT safety audit, Red Ball’s allegedly inadequate procedures to review and audit drivers’ logs, Red Ball’s allegedly inadequate safety program, Southwest’s allegedly inadequate recordkeeping practices, and evidence of other drivers’ conduct. These are broad categories of evidence. Based on our review of the briefs and record, plaintiffs appear to be primarily concerned about evidence that Southwest and Red Ball did not enforce federal requirements and corporate policies regarding drivers’ hours of service, drivers’ log books, and safety inspections.
As noted above, ratification and authorization are broad enough to encompass evidence that the corporate defendants knew or should have known about employee misconduct and evidence of corporate policies, procedures, or managerial behavior that a jury reasonably could infer implicitly authorized or ratified the questioned conduct. Accordingly, evidence that Southwest or Red Ball knew or should have known that Printup was violating safety regulations, but did nothing to require his compliance, is relevant to authorization or ratification. Whether such evidence is admissible, however, depends upon an additional finding that the safety violations at issue caused or contributed to the accident.
Based on our review of the record, at least some evidence about the companies’ safety programs and procedures is relevant and admissible. Plaintiffs’ theory is that Printup had a long history of falsifying his driving logs and inspection reports and that the companies for which he worked had a long history of tolerating such violations. If the jury could find that fatigue due to hours of service violations caused or contributed to the accident, then evidence that the companies knew or had reason to know of Printup’s false logs and hours of service violations is relevant to authorization and ratification of conduct that caused or contributed to the accident.
There is evidence in the record from which the jury could infer that Printup was tired or fell asleep and lost control of the tractor-trailer. The accident occurred near midnight. The tractor-trailer jackknifed and crossed the median, blocking the path of oncoming traffic. Printup testified variously about when his day started. On September 15, 1987, the day of the accident, at the earliest, he went on duty at 4:30 a.m.; at the latest, he got up at 4:30 and went on duty at 6:30 a.m. He drove from Foristell, Missouri, to Kansas City, where he made a delivery. He testified that he then went to Olathe, where he stayed from about 6:00 to 9:00 p.m. He testified that after leaving Olathe at about 9:00 p.m., he did not stop until the accident, except to get a ticket at the toll gate. Although Printup’s testimony is not consistent, it is clear that he had a long day. He had been on the go (although not necessarily “on duty and driving” for purposes of federal regulations) from at least 6:30 a.m. until 6:00 p.m. when he took, at most, a three-hour break before driving another three hours prior to the accident.
The accident investigation was not conclusive as to whether Printup fell asleep at the wheel. Patrolman Brent Joy was equivocal about whether driver fatigue was a factor. Officer Heryford testified that he concluded Printup was in the right-hand lane when Printup’s problems started. On cross-examination, Heryford testified that drivers who fall asleep generally tend to follow the contour of the road, rather than crossing the hump in the center of the road. Thus, if Printup had performed like the normal sleeping driver, his truck would have gone off the right side of the road instead of crossing the median. Of course, fatigue could have been a contributing factor even if Printup did not actually fall asleep. Moreover, the jury was entitled to weigh this evidence as it saw fit.
The jury could have found that Printup’s fatigue caused or contributed to the accident. The inconsistency of his testimony and his logs could support an inference that he was tired because he had worked more hours than he shoiild have. Accordingly, the trial court erred by excluding relevant evidence that Southwest and Red Ball knew or should have known about log book and hours of service violations and had failed to require compliance with those safety regulations.
We recognize that at the time of the accident and for several years before the accident, Printup had submitted his logs to Red Ball, not Southwest. Printup had, however, worked for Southwest for 26 years. Southwest’s historical, treatment of Printup’s alleged noncompliance with log and hours of service requirements is relevant. Southwest was his employer and had authority to fire him. To the extent Printup’s noncompliance was related to fatigue, Red Ball’s and Southwest’s tolerance of such noncompliance was both relevant and admissible.
The trial court did not err in excluding evidence that Printup falsified vehicle inspection reports because there was no evidence in the record that a mechanical problem caused or contributed to the accident. Officer Joy specifically testified that he did not find any mechanical defects in Printup’s truck that caused or contributed to the accident. Joy did find a problem with one brake drum and one tire, but plaintiffs did not present any evidence that those defects caused or contributed to the accident. Absent any causal relationship between inadequate inspections and the accident, evidence of such violations is not relevant or admissible.
Evidence about other drivers’ conduct is not pertinent to ratification or authorization of Printup’s conduct unless the other drivers’ conduct is related to fatigue-causing conditions. The companies’ tolerance of false logs and hours of service violations is evidence from which the jury could infer that the companies were sending a message to Printup and other drivers that such conduct was acceptable. The jury could infer that the companies authorized or ratified such conduct. Similarly, the trial court erred in excluding evidence about Southwest’s recordkeeping practices to the extent the evidence pertained to driving logs or hours of service and thus driver fatigue.
The erroneous exclusion of evidence is not grounds for reversal unless it affects the substantial rights of the parties. K.S.A. 60-261. The exclusion of the above evidence from the jury on the question of whether plaintiffs should be awarded punitive damages against Southwest affected the substantial rights of the plaintiffs. Accordingly, that portion of the judgment is reversed, and the case remanded for a jury determination of whether plaintiffs are entitled to recover punitive damages against Southwest.
The jury determined that punitive damages should be awarded against Red Ball and Printup. It did so based on evidence admitted. We have concluded that the exclusion of evidence prejudiced the rights of the plaintiffs. However, the plaintiffs suffered no prejudice by such exclusion of evidence regarding Red Ball and Printup because, based on evidence admitted, the jury concluded that punitive damages should be awarded against Red Ball and Printup. There is no reason to believe the result would be different for Red Ball and Printup on remand because our ruling will allow additional evidence bearing on authorization and ratification. As to this jury determination, plaintiffs suffered no prejudice, and that portion of the jury determination is affirmed.
The exclusion of evidence also affected the substantial rights of plaintiffs as to the court’s determination of the amount of punitive damages. The punitive damages awards against Red Ball and Printup are reversed and remanded for further consideration by the court. While the excluded evidence relates to authorization and ratification, it also relates to the conduct of Printup and Red Ball. With new evidence, a determination of the amount of punitive damages against these two defendants may change.
If, upon remand, the jury should decide that plaintiffs are entitled to punitive damages against Southwest, the court must determine the amount. If the jury concludes otherwise, the court’s consideration is limited to a determination of the amount of punitive damages to be assessed against Red Ball and Printup.
We realize that we have not specifically addressed each particular item of evidence about which plaintiffs complain. Rather, we have attempted to discuss categories of evidence and set forth guidelines to aid the parties and the trial court in determining what additional evidence should be admitted. As should be clear from the foregoing discussion, the admissibility of particular evidence about Southwest or Red Ball depends upon whether the evidence tends to prove that either company ratified or authorized conduct that caused or contributed to the accident. We trust the foregoing discussion will aid. the parties and the court in determining the admissibility of particular items of evidence upon remand.
(6) DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY ABOUT WHAT CONDUCT BY RED BALL OR SOUTHWEST AMOUNTED TO RATIFICATION AND AUTHORIZATION OF PRINTUP’S CONDUCT?
The only basis for punitive damages against Red Ball or Southwest was under the provisions of K.S.A. 1992 Supp.. 60-3701(d)(l):
“(d) In no case shall exemplary or punitive damages be assessed pursuant to this section against:
(1) A principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer.” (Emphasis added.)
Plaintiffs requested that the court instruct the jury as to authorization and ratification. The court defined ratification only by saying that it meant “the acceptance of a course of conduct or act with an intent to ratify, and with full knowledge of all the material circumstances.” The court used the term ratify to define ratification and failed to define authorization. The court’s failure to instruct the jury upon request on both means by which the jury could conclude that punitive damages may be awarded was clearly erroneous.
Under the more restrictive definition of ratification, the jury concluded that Red Ball should be responsible for punitive damages. There is no reason to conclude that this result would change with a new jury under the more expansive definitions of ratifi cation and authorization adopted in this opinion. Red Ball has no basis to complain. However, with proper jury instructions on both ratification and authorization, a jury may conclude that Southwest also should be responsible for punitive damages. Accordingly, we have concluded that the jury verdict on the issue of whether punitive damages should be awarded against Southwest must be reversed. Upon remand, the court should instruct the jury by defining the terms authorization and ratification. Its failure to define authorization was clearly erroneous. See Powers v. Kansas Power & Light Co., 234 Kan. 89, 92, 671 P.2d 491 (1983). Instructions upon remand should be consistent with this opinion.
Red Ball, in its cross-appeal, claims that the trial court erred in allowing punitive damages on a finding of ratification when there was no evidence of Red Ball’s conduct after the accident that might amount to ratification. Many of the cases we have read and discussed in this opinion speak of ratification and authorization together, but they all suggest that if corporate management obviously tolerates the kind of conduct that causes the injury, it amounts to ratification and/or authorization. Most of these cases, however, involve a continuing course of tortious conduct. Khalid Bin Talal Etc. v. E.F. Hutton & Co., 720 F. Supp. 671 (N.D. Ill. 1989) (recurring misconduct in commodities trading); Hart v. National Mortgage & Land Co., 189 Cal. App. 3d 1420, 235 Cal. Rptr. 68 (1987) (séxual harassment); Wirig v. Kinney Shoe Corp., 448 N.W.2d 526 (Minn. App. 1989) (sexual harassment). In those cases, ongoing tolerance logically amounts to ratification.
Red Ball, however, argues that this case involves a one-time tort and, under these circumstances, plaintiffs must show that the corporate defendant did something after the accident to confirm that Printup’s behavior was acceptable. Thus, Red Ball contends that absent some evidence of post-accident ratifying conduct, it was not proper to find that Red Ball ratified Printup’s action. We have addressed this contention in our above discussion of the terms authorization and ratification. The cases cited in the previous section indicate that ratification may but does not necessarily require an express act after the tort is committed. Upon remand, the court should instruct the jury on ratification in a manner consistent with this opinion.
(7) DID THE TRIAL COURT ERR IN REFUSING TO REQUIRE RED BALL TO PRODUCE CERTAIN FINANCIAL AND PARENT COMPANY INFORMATION FOR USE IN THE POST-TRIAL PROCEEDINGS TO DETERMINE THE AMOUNT OF PUNITIVE DAMAGES?
Financial information about Red Ball is pertinent to the issue of punitive damages in two respects. First, Red Ball’s gross annual income is relevant with respect to the statutory cap on punitive damages. K.S.A. 1992 Supp. 60-3701(e) caps punitive damages at the lesser of (1) Red Ball’s highest gross annual income in any one of the five years preceding the accident or (2) $5 million. Second, in determining the amount of punitive damages to be awarded, K.S.A. 1992 Supp. 60-3701(b) permits the court to consider, among other things, “(3) the profitability of the defendant’s misconduct; ... (6) the financial condition of the defendant; and (7) the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct.”
Plaintiffs complain on appeal that the trial court erred in not requiring Red Ball to produce “complete financial records regarding its financial condition and relationship with its parent company, American Red Ball.” Plaintiffs do not identify with any particularity the records they claim were not produced. The only records they specifically sought at trial were “financial records reflecting its gross annual income earned in the years 1983 through 1987.” They do not complain on appeal that Red Ball failed to produce such records, and the records that were produced are not in the record, so we are unable to make any independent determination about whether plaintiffs obtained the requested records. If plaintiffs asked only for specific records, the trial court granted their motion, and Red Ball produced the requested records, we cannot now find the trial court erred by failing to compel production of records not requested. It is appellants’ burden to designate a record that is sufficient to present their points and to establish the claimed error. Sterba v. Jay, 249 Kan. 270, 280, 816 P.2d 379 (1991). Without an adequate record, plaintiffs’ claim of alleged error fails. See, e.g., State v. Dunn, 249 Kan. 488, 496, 820 P.2d 412 (1991).
We also note that plaintiffs’ position at trial seemed to be that only information specifically about the defendant, Red Ball, was relevant and admissible. Red Ball called as a witness Mr. Saubert, the president of American Red Ball Corporation, the parent company of Red Ball. Plaintiffs objected on relevance grounds to Red Ball’s inquiry about various operations of one of the other subsidiaries. The court asked what all this had to do with defendant Red Ball. Defense counsel assured the court it was trying to make clear the distinction between the two corporations because consolidated financial statements were being submitted. These financial statements are not in the record. The court made it clear it would only look to Red Ball when evaluating its financial condition for purposes of punitive damages assessment. Before relinquishing this line of questioning, however, defense counsel sought assurances from the court and plaintiffs’ counsel that they agreed that “American Red Ball Transit Company is the only corporation that is at issue at this point.” Plaintiffs’ counsel stated on the record: “That’s what I have always assumed. If there’s something else going on, I don’t know about it.”
Moreover, plaintiffs objected at trial to the admissibility of an "audited financial statement of American Red Ball Corporation and subsidiaries.” Plaintiffs objected to the exhibits on relevance grounds because only a “couple of pages” had anything to do with Red Ball. It was the trial court that decided the exhibits should be admitted because the corporations may “interconnect.”
Plaintiffs did not ask the court to require Red Ball to produce specific additional information and appeared to be willing to defer to the court’s determination of what it needed. While plaintiffs stated in the record that information on accounting methods, nature of expenses, attachments, and supporting documents were not produced and that information about accounting methods would give a more complete picture, plaintiffs did not specifically request production of any additional specific information. Thus, the court did not deny a specific request for specific information.
Finally, on appeal, plaintiffs have not been able to explain to this court exactly what information they did not receive in the trial court. Plaintiffs claim they are entitled to “complete financial records regarding [Red Ball’s] financial condition and relationship with its parent company.” Plaintiffs did not include in the record the documents they did receive, and plaintiffs have not precisely described, here or in the trial court, what additional information they want. Under these circumstances, the trial court did not err. Upon remand, the parties are limited to presentation of only those financial records previously admitted.
(8) DID THE TRIAL COURT ERR DURING POST-TRIAL PROCEEDINGS BY ADMITTING EVIDENCE OF POST-ACCIDENT CONDUCT TO MITIGATE PUNITIVE DAMAGES AND BY ADMITTING CONTENTS OF SETTLEMENT NEGOTIATIONS?
A. Post-Accident Conduct
Plaintiffs claim that the trial court erred in allowing Red Ball to present evidence of post-accident remedial conduct that occurred long after the accident, in an effort to mitigate punitive damages. The subsequent remedial conduct includes, but is not limited to: a drug testing program implemented in 1987; a driver evaluation form initiated in 1988 and used to qualify drivers; classroom training and driver training programs implemented in 1988; a driver log evaluation form implemented in 1988; and a point system that assigned points for various infractions and imposed various consequences based upon points accumulated.
K.S.A. 1992 Supp. 60-3701 provides that subsequent remedial measures are relevant and admissible on the issue of punitive damages. K.S.A. 1992 Supp. 60-37Ql(b)(5) allows the court to consider “the attitude and conduct of the defendant upon discovery of the misconduct.” The theory behind this provision is that a contrite defendant who promptly takes steps to remedy a problem that contributed to a plaintiff’s injury should not be punished as severely as a defendant who maintains business as usual after the incident giving rise to the claim for punitive damages.
At the hearing on punitive damages, the court sustained plaintiffs’ objection to Red Ball’s evidence of subsequent remedial conduct. Red Ball was allowed to present a proffer of evidence in the form of Lamont Brantley’s testimony. Brantley testified about improvements in Red Ball’s safety program. The court later notified counsel by letter that it had reconsidered its earlier decision and decided to admit the evidence. Plaintiffs were then allowed to, and did, cross-examine Brantley by deposition. However, the transcript of that deposition is not in the record, so it is impossible to determine if appellants were correct that “[t]wo significant things were revealed during that testimony.”
Plaintiffs claim that Brantley’s deposition testimony revealed that the subsequent remedial conduct was just part of the “natural progression” of the company’s safety program and that “nearly all of these changes were made in 1990 or 1991; most were made within a few months of trial.” Accordingly, plaintiffs claim the evidence of subsequent remedial conduct is not probative of the “attitude and conduct of the defendant upon discovery of the misconduct” because Red Ball was scheduled to take this action in any event, and most of the action was not taken until long after the accident. Even if this testimony would render all or some of the subsequent remedial conduct evidence inadmissible, without the deposition transcript, we are unable to determine whether plaintiffs’ claim is true. “A party must designate an adequate record on appeal to substantiate contentions made to the appellate court. Without such a record, claims of alleged error must fail. Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.” Eisenhut v. Steadman, 13 Kan. App. 2d 220, 223, 767 P.2d 293 (1989).
Additionally, the language “the attitude and conduct of the defendant upon discovery of the misconduct” may reasonably be construed to extend to remedial conduct taken after the tort. On the facts of this case, the efforts to improve a safety program for a large moving company are likely to require a substantial amount of time to implement and refine. It would not be unreasonable to assume that such action may very well take from a few months to a few years. The amount of time that elapses between the accident and the time the corrective measure goes into effect relates more to the weight of the evidence than to its admissibility. We conclude that, on the facts of this case, the trial court did not err in allowing evidence of subsequent remedial conduct.
We hold that K.S.A. 1992 Supp. 60-3701(b)(5) makes the above evidence of remedial conduct relevant. Plaintiffs have not included their cross-examination of Brantley in the record. The testimony that is in the record describes, for the most part, remedial actions taken within a year or two after the accident. This evidence was admissible as reflective of the attitude and conduct of Red Ball upon discovery of the conduct within the meaning of 60-3701(b)(5). Because plaintiffs have failed to designate a record sufficient to review specific allegations of error and because the lapse of time alone does not render the evidence of remedial conduct inadmissible, we conclude that the trial court did not err in allowing evidence of subsequent remedial conduct as it related to punitive damages. Our ruling is to govern proceedings upon remand.
B. Settlement Negotiations
Defendants called plaintiffs’ counsel to testify during the hearing on punitive damages. This action was taken in response to the court’s admission of plaintiffs’ Exhibit 59, which was plaintiffs’ counsel’s affidavit about plaintiffs’ litigation expenses. We note that plaintiffs’ Exhibit 59 was not included in the record on appeal. Plaintiffs argued that the court should consider .the expenses of litigation in determining the punitive damages award. The trial court admitted plaintiffs’ Exhibit 59 over defendants’ objections.
In response to the admission of Exhibit 59, the defense called plaintiffs’ counsel as a witness in order to cross-examine Exhibit 59. For the purposes of this cross-examination, the court directed counsel to treat Exhibit 59 as plaintiffs’ counsel’s testimony on direct examination.
During the course of this cross-examination, defendants’ counsel inquired into settlement negotiations that arose during pretrial stages of litigation. The defense contended that if plaintiffs’ litigation costs were relevant to punitive damages, settlement discussions also were relevant because they demonstrated that unnecessary expenses were incurred. Basically, defendants claimed that because plaintiffs could have settled the case before trial for more than their actual damage judgment, many of their litigation expenses were unnecessary.
In support of their argument that the court erroneously allowed evidence concerning settlement negotiations, plaintiffs rely upon the case of Ettus v. Orkin Exterminating Co., 233 Kan. 555, 665 P.2d 730 (1983), wherein the court held that absent unusual circumstances, “settlement offers and negotiations are inadmissible in evidence even when offered for the limited purpose of defending against an award of punitive damages.” 233 Kan. at 570-71. The reason for this, as we noted in Ettus, is that so many factors besides the defendant’s culpability enter into settlement negotiations, and the policy behind punitive damages is punishment and deterrence of culpable conduct. 233 Kan. at 570. Accordingly, evidence of settlement discussions is not particularly probative and may in fact muddy the waters on punitive damages issues. We support the holding in Ettus, but we note that the court in that case indicated that in unusual circumstances, settlement offers and negotiations may be admissible in evidence when offered for the limited purpose of defending against an award of punitive damages.
In this case, we believe unusual circumstances were demonstrated and that defendants properly were allowed to question Exhibit 59 of plaintiffs by cross-examining on the basis of whether the expenses contained in Exhibit 59 were actually necessary expenses. We think it important that this occurred in a hearing before the trial court outside the presence of the jury for the purpose of allowing defendants to respond to plaintiffs’ claim of necessary litigation expenses. The evidence was admissible under these unusual circumstances, even though its probative value may have been limited. We note one limitation is that so many other factors besides defendants’ culpability enter into settlement negotiations that the evidence of failure to settle is of limited value. We also recognize that hindsight is always 20-20. It was defendants’ contention that plaintiffs’ litigation expenses were unnecessary because the settlement offers approximated or exceeded the actual damage award for which the court entered judgment. All of these factors, however, go to the weight to be given to the evidence and not to its admissibility. The evidence defendants offered is at best a second guess of settlement decisions involving many factors other than punitive damages. Yet, again, while the evidence may have been of limited probative value, it was plaintiffs who raised the question by claiming necessary and reasonable litigation expenses. Under these unusual circumstances, it is fair that defendants be given an opportunity to question the necessity of such litigation expenses. Accordingly, the trial court did not err by allowing evidence regarding reasonableness and necessity of litigation expenses under these limited circumstances.
(9) DID THE TRIAL COURT ERR IN REFUSING TO HOLD RED BALL JOINTLY AND SEVERALLY LIABLE
FOR THE PUNITIVE DAMAGE AWARD ASSESSED AGAINST PRINTUP?
Plaintiffs claim that Kansas law permits imposition of joint and several liability on an employer and employee for punitive damages assessed against the employee. In support, they cite Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 666 P.2d 711 (1983), and Southern American Ins. v. Gabbert-Jones, Inc., 13 Kan. App. 2d 324, 769 P.2d 1194 (1989). Gabbert-Jones involved the following two issues: (1) whether liability of punitive damages was within the scope of the insuring agreement between the two parties; and (2) whether public policy prevented the insurer’s liability for punitive damages. 13 Kan. App. 2d at 326. Joint and several liability between an employer and employee was not an issue in Gabbert-Jones.
Joint and several liability also was not an issue in the Kline case. In Kline, the plaintiff did not sue the agents and employees; he sued only the employer/principal. 233 Kan. at 989. The issue in Kline was whether the employer could be liable for punitive damages for its employees’ acts — not whether it was jointly and severally liable for a punitive damage award assessed separately against its employees.
The imposition of joint and several liability for punitive damages is contrary to the purpose for which punitive damages are awarded. Punitive damages are awarded to punish the wrongdoer. Each wrongdoer is liable to pay the punitive damages assessed against him or her. The amount of the award is to be calculated with the individual defendant’s financial status and conduct in mind. K.S.A. 1992 Supp. 60-3701(b), (e) and (f). Joint and several liability undermines these considerations and therefore is unavailable. In contrast, joint and several liability for compensatory damages, under appropriate circumstances, is consistent with their purpose, which is to compensate the tort victim. Accordingly, the trial court did not err in refusing to hold Red Ball jointly and severally liable for the punitive damage award assessed against Printup.
(10) DID THE TRIAL COURT ERR IN REFUSING TO ASSESS TREBLE DAMAGES AGAINST PRINTUP AND RED BALL AS PART OF THE PUNITIVE DAMAGE AWARD?
Plaintiffs claim that the trial court erred in not assessing treble damages pursuant to K.S.A. 66-176, which provides:
“Any public utility or common carrier which shall violate any of the provisions of law for the regulation of such public utilities or common carriers shall forfeit, for every offense, to the person, company or corporation aggrieved thereby, three times the actual damages sustained by the party aggrieved, together with the costs of suit, and a reasonable attorney fee, to be fixed by the court; and if an appeal be taken from the judgment or any part thereof, it shall be the duty of the appellate court to include in the judgment an additional reasonable attorney’s fee for services in the appellate court or courts.”
The plaintiffs did not timely raise this issue. This claim was not presented to the trial court until nearly four months after plaintiffs filed their notice of appeal. Accordingly, the trial court properly denied their motion to modify judgment.
Plaintiffs seek this court’s indulgence on the basis that the Court of Appeals did not decide until December 27, 1991, that K.S.A. 66-176 created a right of action for individuals injured by common carriers. Dietz v. Atchison, Topeka & Santa Fe Rwy. Co., 16 Kan. App. 2d 342, 823 P.2d 810 (1991). However, Dietz was decided before plaintiffs filed their notice of appeal, and K.S.A. 66-176 was on the books long before this case ever went to trial. We decline to entertain plaintiffs’ claim.
(11) DID THE TRIAL COURT ABUSE ITS DISCRETION IN DETERMINING THE AMOUNT OF PUNITIVE DAMAGES?
Because we have reversed the court’s assessment of punitive damages and remanded for further consideration, we need not address this issue.
PRINTUP’S CROSS-APPEAL
(1) DID THE TRIAL COURT ERR IN SUBMITTING TO THE JURY SMITH’S CLAIM OF PAIN AND SUFFERING?
Printup claims the court erred in submitting to the jury Smith’s claim of conscious pain and suffering because it was not supported by the evidence. Printup argues that the sole expert witness (the coroner) testified that Smith endured no conscious pain and suffering and that the remaining testimony was inconclusive. Lay witness testimony can support a verdict for pain and suffering. Gregory v. Carey, 246 Kan. 504, 510, 791 P.2d 1329 (1990); Leiker v. Gafford, 245 Kan. 325, 342, 778 P.2d 823 (1989). There was lay witness testimony in this case about Smith’s behavior at the scene of the accident supporting a reasonable inference that he endured conscious pain or suffering. Mark Woodhouse testified that Smith was breathing erratically and that he appeared to respond with a two-syllable sound and body movement to Wood-house’s statement that help was on its way.
There was conflicting testimony from emergency personnel. One highway patrolman testified that he believed Smith was unconscious. A volunteer firefighter testified that he could not opine whether Smith was conscious immediately after the impact. An EMT testified that what he observed suggested Smith was not conscious. The coroner who examined Smith after he died testified that, given the nature of Smith’s injuries, it was possible, but not medically probable, that Smith was conscious after the impact.
Woodhouse, however, was the first person on the scene. None of the more experienced personnel arrived until 10-25 minutes after the crash. Accordingly, the jury could reasonably have inferred that Woodhouse observed things that others did not, and that what he observed indicated Smith endured conscious pain and suffering. There was sufficient evidence in the record to submit to the jury Smith’s claim of pain and suffering.
(2) DID THE TRIAL COURT ERR IN SUBMITTING TO THE JURY SMITH’S CLAIM THAT PRINTUP’S CONDUCT WAS WANTON?
For an act to amount to wantonness, the actor must have reason to believe that his act may injure another and commit the act anyway, with indifference to whether it injures another. Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822 (1945). Printup argues that there was not clear and convincing evidence that he realized the imminence of danger from his actions.
Printup testified that he knew what the law required regarding accurate logs and limited work hours. He nevertheless acknowledged numerous log violations, including the logs for the days and weeks immediately preceding the accident. His testimony included huge discrepancies between his logs, his prior testimony, and his trial testimony about his activity on the day of the ac cident. He either left Missouri at 4:30 a.m., 6:30 a.m., or noon. He arrived in Kansas City at 11:30 a.m., 12:30, or 4:30 p.m. He arrived at the residence where he delivered furniture at either 12:30 or 3:00 p.m., and he arrived at Olathe at either 2:00 p.m., 5:00 p.m., or 6:00 p.m. He remained there for either three hours or one and one-half hours. Printup testified that he knew it was reckless and could lead to an accident if he worked 17-18 hours a day, yet his testimony supports a finding that he worked from 4:30 a.m. until midnight when the wreck occurred, give or take a few hours. Printup’s testimony indicated wanton disregard for the safety regulations requiring limited work hours and accurate recordkeeping. To the extent that such disregard may be interpreted as related to the cause of the accident, it supports the claim that he acted wantonly.
Printup also testified that before the accident, his trailer began to fishtail, which he recognized as a sign that the road was slick and that he was losing control; yet, he did not reduce his speed. Under these circumstances, the court did not err in submitting this claim of wanton conduct to the jury.
CONCLUSION
The judgment of the court is affirmed in the following particulars. K.S.A. 1992 Supp. 60-3701 is constitutional. Punitive damages are not available in a wrongful death action in Kansas. After the enactment of K.S.A. 1992 Supp. 60-3701 et seq., a plaintiff has no right to advance a separate claim for punitive damages against an employer or principal based upon negligent acts of the employer or principal in hiring, supervising, training, or retaining the employee/agent.
The court’s rulings regarding the admission of financial records to determine the amount of punitive damages are affirmed, and those rulings become the law of the case upon remand. Likewise, the court’s rulings regarding the admission of evidence of remedial conduct together with evidence of settlement negotiations are affirmed and become the law of the case upon remand.
The court’s holding that joint and several liability is not available under the provisions of K.S.A. 1992 Supp. 60-3701(b), (e), and (f) is affirmed. The court’s holding that treble damages under K.S.A. 66-176 are unavailable in this case is affirmed and becomes the law of the case upon remand. Finally, the court correctly determined that there was sufficient evidence to submit to the jury the plaintiffs’ claim of conscious pain and suffering on behalf of Smith and the issue of wantonness of Printup’s conduct.
The court erroneously excluded relevant evidence of authorization or ratification under the provisions of K.S.A. 1992 Supp. 60-3701(d)(l) that affected the substantial rights of the plaintiffs. The court also committed clear error by failing to instruct the jury on authorization under 60-3701(d)(l). Accordingly, the decision regarding punitive damages is reversed, and the case is remanded with the following directions:
(1) Upon remand, a jury will be required to determine, under the guidelines set forth in this opinion, whether punitive damages should be awarded against Southwest.
(2) The jury determination that punitive damages should be awarded against Red Ball and Printup is affirmed, and the jury shall not consider this issue.
(3) The court’s determination of the amount of punitive damages against Red Ball and Printup is reversed.
(4) After a jury has determined whether Southwest shall be assessed punitive damages, the court may be required to determine the amount, if any, of punitive damages to be awarded against Southwest consistent with this opinion.
(5) The court will be required to determine the amount of punitive damages to be assessed against Red Ball and Printup consistent with this opinion.
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The opinion of the court was delivered by
Davis, J.:
The defendant, Kenneth E. Morris, appeals from the district court’s denial of his motion to withdraw his guilty plea to a charge of rape. He contends that the district court failed to follow K.S.A. 22-3210 before accepting his plea because it (1) failed to adequately advise the defendant of the maximum penalty and (2) failed to determine whether his plea was entered vol untarily with the understanding of the charge and the consequences of the plea. We affirm.
In April 1990, Kenneth Morris was charged in a five-count complaint with rape, aggravated criminal sodomy, attempted aggravated criminal sodomy, aggravated sexual battery, and sexual battery. The defendant had been convicted of a felony offense in a previous case and was still on probation for that offense. On December 13, 1990, the defendant appeared for jury trial on the five charges. On that same date the defendant also appeared on a motion for revocation of his probation from the earlier felony conviction.
The record on this appearance establishes that the defendant with his counsel, David K. Clark, and the State through its attorney, John J. Gillett, entered into an agreement regarding the disposition of all charges and the revocation motion:
“MR. GILLETT: “Your Honor, the defendant is going to be entering a plea of guilty to the count of rape, to be sentenced to 15 years to life, that will be consecutive to the sentence by law under 89 CR-31 [earlier felony conviction] in which we’re dropping a Motion to Revoke his probation. The remaining time of probation he has on that would run during the same period of time that we’re recommending 10 years’ supervised probation on this new charge. He will have Court costs, I believe Mr. Clark is appointed. He’ll have those things to reimburse on that. He will be ordered into counseling, and to abide by whatever the counselor says, and have the other usual terms and conditions. The charge of aggravated sodomy, attempted aggravated sodomy, aggravated sexual battery will all be dismissed.
“THE COURT: The particular count being pled guilty to is Count 1 in the Information?
“MR. CLARK: I believe that’s correct, Judge.
“THE COURT: And that’s a Class B felony.
“MR. GILLETT: That’s correct. Sentence on that would be 15 to life. And the State would have sufficient evidence to obtain a conviction on that count in the event the matter would have gone to jury trial.
“THE COURT: All right, what is going to be the conditions recommended? Pay the costs, probation supervision fee?
“MR. GILLETT: Yes.
“THE COURT: Required counseling.
“MR. GILLETT: Yes.
“TPIE COURT: Inpatient or outpatient.
“MR. GILLETT: Whatever the —
“TPIE COURT: All right, as per the Court Services Officer. Anything else specifically?
“MR. CLARK: Nothing specifically, Judge, but I will advise the Court that I’ve talked to the County Attorney’s Office, I realize the Court cannot order this, but they have indicated to me that they will be moving from this jurisdiction, probably in the next 90 to 120 days. And we’d agree to that as one of the conditions.
“THE COURT: I presume you’re going to recommend transfer of the supervision.
“MR. GILLETT: Yes, that’s fine.
“THE COURT: I presume there’s going to be a requirement for reimbursement to the Indigent Defense Services.
“MR. GILLETT: Yes.
“MR. CLARK: Also, for purposes of the record, Judge, I’m sure that the County Attorney will join me, we’ll waive any PSI report.
“THE COURT: You want to go to sentence today?
“MR. GILLETT: Yes. We’ll waive the PSI, Your Honor. I think Mr. Morris is aware that if there is any deviation from the terms of the probation whatsoever, what lie’s looking at.
On December 13, 1990, the defendant entered a plea of guilty to the charge of rape. Prior to accepting the defendant’s plea and after swearing in the defendant, the court asked the following questions:
“THE COURT: All right, you have heard everything that Mr. Clark and Mr. Gillett have been talking about, as far as how to dispose of this case?
“A [Defendant]: Yes, Your Honor.
“THE COURT: Are all the things that you have heard what you understand to be the agreement between you and the State, as far as how to dispose of the case?
“A: Yes, Your Honor.
“THE COURT: Have there been any suggestions or requirements or offers or comments, other than what has been stated in open Court here today?
“A: No, Your Honor.
“THE COURT: In your previous case, as I recall, that was a plea agreement, too, was it not?
“MR. CLARK: Yes, it was, Your Plonor.
"THE COURT: I’m still required to make a new record to make sure you understand what your rights are, and that you make a voluntary waiver of those rights. First of all, you have been through a couple of attorneys in this case. Originally, I think, David Rogers, and now Mr. Clark. Are you satisfied at this point with the legal representation you have had?
“A: Yes, sir.
"TPIE COURT: And have you had all the time you need to discuss your case with Mr. Clark?
“A: Yes, Your I-Ionor.
"TPIE COURT: And you’re satisfied you’re ready to proceed today?
“A: Yes, sir.
“THE COURT: For the record, in this case, although you have told me before, that was in another case and another record; but in this case I want you to state briefly your background insofar as education, work history, and marital history, and that type of thing. Just give me a brief background.
“A: Well, I completed the eighth grade and about half of th.e ninth grade, and I went into the service and spent four years and nine months in the service and got out. I’ve been married four times. The woman I’m married to now is my fourth wife.
“THE COURT: All right, you’ve been married several years.
“A: About eight years.
“THE COURT: Did you ever get your GED?
“A: Yes, sir, I got it at the V.A. Hospital in Topeka. .
"THE COURT: Are you satisfied you understand all of the ins and outs of what we’re doing here today?
“A: Yes, sir.
“THE COURT: Is there any part if it that is confusing to you?
“A: No, sir.
"THE COURT: Have you had any mental or emotional problems, or treatment or counseling that would tend to indicate a problem in your understanding what we’re doing here today?
“A: No, sir.
“THE COURT: You have been in jail quite sometime?
“A: Yes, sir. Eight months.
“THE COURT: Eight months. And you’re not entering your,plea today just as a means of getting out of jail? . . . ■
“A: I’m admitting that I did it the way the County Attorney entered it.
“THE COURT: And you are admitting your guilt because that is what you want to do?
"A: Yes, sir.
“THE COURT: I’m going to find for the record that Mr. Morris is capable of waiving his legal and constitutional rights and entering a plea of guilty to the crime charged.
“Now, In regard to those rights, I’m sure you have visited with Mr. Clark about those rights?
“A: Yes, sir.
“THE COURT: It’s the same thing we went over in the other case a year ago. It concludes the right to the presumption of innocence, as you sit there today; a right to require that the State convince a jury of twelve beyond a reasonable doubt that you are guilty before you-can be found guilty; and do you understand you are waiving both of those rights?
“A: Yes, sir.
“THE COURT: You understand that when you waive those rights, that if at some point down the road you are dissatisfied with the disposition, you would not be able to come back and appeal it on the basis you were deprived of those rights?
“A: Yes, sir.
“THE COURT: By the same token, you’re entitled, along with the assistance of Mr. Clark, to question prospective jurors that would hear your case; you’re entitled to his help in confronting and cross-examining the witnesses that would testify against you; and in addition to that, you’re entitled to take the witness stand and testify in your own behalf, or you can choose not to testify, and no comment can be made to the jury about whether or not you testified. Do you understand those are also legal rights, but once you have waived those, you can’t later come back and appeal on the basis that you were deprived of those rights?
“A: Yes sir, I understand.
“THE COURT: Finally, you would normally be entitled to appeal your conviction for whatever reason. When you enter a plea of guilty, and waive your rights, you understand that you are no longer entitled to an appeal of your conviction?
“A: Yes, sir.
"THE COURT: All right, and it is your desire to waive those rights?
“A: Yes, sir.
“THE COURT: I’ll find that you have made a valid and knowing and intelligent waiver of your rights. Having made that finding, I’ll ask you at this time how do you plead to Count 1 of the Information which charges a Class B felony, rape?
“A: Guilty, Your Honor.
“THE COURT: I’ll accept that and enter judgment of guilt accordingly. Normally, at this point, we would order a presentence investigation. We did that in the other case, and that hasn’t been that long ago, and I think I’m still familiar with all that background. Your attorney and Mr. Gillett have indicated that they are willing not to require another presentence investigation. Is it your desire to proceed to sentencing today, without the Court Services Officer going back and preparing a presentence report for my use?
“A: Yes, sir.
“THE COURT: Do you have anything further to slate, legal or otherwise, why sentence could not be pronounced?
“A: No, sir.
“THE COURT: It’s going to be the judgment and sentence of the Court, in line with the plea agreement, that you receive a sentence in this case of not less than 15 years nor more than life to the Secretary of Corrections. It will be further ordered that that sentence run consecutive to the sentence in the case that you’re currently on probation in, 89 CR-31. You will further be ordered to pay the cost of this action. Again, in line with the recommendation of the State, and the plea agreement, I’m going to place you on probation for a period of ten years from that sentence. That probation also is to run consecutive to the probation in the other case that you’re currently serving. Do you understand that?
“A: I don’t understand consecutive and the current. I mean is consecutive separate or running them together?
“THE COURT: As specific conditions of probation, other than the ten year term, you’ll be ordered to pay a probation supervision fee, Court costs, and reimburse the taxpayers of Kansas for the cost of both Mr. Rogers’ and Mr. Clark’s services. The probation officer will work with you in regard to your income, and set up a payment schedule that you’ll be able to meet. But you will be required to continue making payments until all those things are paid for. In addition, you are specifically going to be required to attend some sort of a sexual counseling program to be set up or coordinated by the Court Services Officer with one of the mental health facilities. That can be done either locally or, if you move to another jurisdiction, with whatever mental health facilities are available in that district. If, after your initial screening, it’s determined by those people that that counseling needs to be inpatient, then you’ll be required to serve that portion of it as an inpatient. Do you understand?
“A. Yes, sir.
“THE COURT: If they determine it’s not necessary, and can be done on an outpatient basis, that’s fine, too. What you need to understand is that is a requirement that you’re going to have to satisfy. The reason that requirement is being included is partly because of the plea agreement, and the other part is this is essentially your second offense. And, chances are, you’re not going to have another opportunity to serve probation if you get yourself in a jam again. And it’s a problem that you need to address as soon as you can. As far as the additional conditions, I will permit a transfer, supervision of this probation to another jurisdiction if, in fact, you move to another jurisdiction and contingent upon that jurisdiction accepting supervision. In other words, they aren’t require to agree to take the supervision.
“A: Who do I go through to get—
“THE COURT: Your CSO, the Court Services Officer that is assigned to your case. Everything you do, you do through him. Don’t do anything without checking with him first.
“A: (Nodded Head affirmatively)
“THE COURT: And he’ll set all that up for you.
“A: (Nodded head affirmatively)
“THE COURT: You’ll have some additional requirements similar to what you’re already involved with in your other probation. Reporting to him, and all of what we refer to as the standard conditions of probation. Those will all be set out in writing to be typed up. You’ll be required to read and initial and sign an acceptance of all those conditions. And, once you’ve done that, then they have the same force and effect as if I had set them out here orally in Court. Do you understand that?
“A: (Nodded head affirmatively)
“THE COURT: You need to also understand that violation of any of those will result in a motion being filed to revoke your probation. And if in fact your probation is revoked, then you’re looking at serving your original sentence, plus a minimum of 15 years on this sentence. Do you understand that?
“A: Yes, sir.
“THE COURT: Do you have any questions at all?
“A: No, sir.
“THE COURT: Do counsel have anything further?
“MR. CLARK: One question he asked me, for the record, and I’d like to explain it to him. He was concerned about having to pay the costs and all that end of it. I explained to him that, of course, since he’s on probation and will be for roughly 12 to 15 years, they’ll set out a monthly payment plan over that period of time, so he should have more than enough time to get all his costs taken care of.
“THE COURT: Yes, you’ll be expected to be employed and, once you’re drawing income, they’ll set up a payment schedule that will let you get all of it paid before you’re off probation. You know, they’re not going to take all your check because then you wouldn’t be able to get by and you’d probably get in trouble.
“A: That’s how I got behind on my last payments. Twenty-five dollars a week was hard to pay. Paid twenty dollars a month—
“THE COURT: Depending.on what kind of job you have, and how much you’re earning, they’ll try to make it in such amount that you should be able to pay it. But whatever amount they set, you’re going to have to do it. Do you understand that?
“A: Yes, sir.
In May 1991, upon motion with notice to the defendant and after hearing, the court revoked the defendant’s probation because the defendant did not comply with the conditions of his probation. The evidence established that the defendant had missed several appointments with his therapist and that he had assaulted another woman. Upon revocation, his original sentence of 15 years to life was reinstated. In August 1991, the defendant’s sentence was modified to a sentence of not less than 10 years nor more than life.
In February 1992, over two years after his plea of guilty to rape, the defendant moved to withdraw his plea. It is from the court’s denial of this motion that the defendant appeals.
Before we begin our discussion of the specific contentions of the defendant, we think it is important to note that the plea entered by the defendant was the result of a plea agreement. From the record it appears that the agreement was beneficial to the defendant in that the State agreed to withdraw its motion for revocation of probation for' the defendant’s earlier offense, agreed to dismiss four of the five charges pending against the defendant, agreed to a suspended sentence of 15 years to life on the rape charge, and agreed to probation for the defendant upon the rape charge subject to reasonable conditions and costs assessed to the defendant.
It was only after his probation on the suspended sentence was revoked that the defendant moved to withdraw his plea to the rape charge. He claims that he did not understand the plea and the trial judge did not inform him of the information required by statute before he entered his plea. While we examine his allegations, we do not ignore the lapse of time and context in which his claim is raised. See State v. Underwood, 228 Kan. 294, 300, 615 P.2d 153 (1980).
The defendant claims on appeal that the trial court erred in denying his motion to withdraw his guilty plea because (1) when the plea was accepted the court did not adequately inform him of the consequences of his plea and of the maximum penalty provided by law that could be imposed as a result of his plea and (2) the court did not adequately determine whether the plea was entered with an understanding of the nature of the charge and the consequences of the plea. The State contends that the trial court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea.
K.S.A. 22-3210 sets forth the requirements with which a court must comply when accepting a plea of guilty or nolo contendere and the circumstances under which a plea may be withdrawn. It provides in pertinent part:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.
(1)) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.
(d) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
K.S.A. 22-3210 “embodies the due process requirements as interpreted by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S.Ct. 1709 (1969); [Citations omitted.] Boykin added the due process requirement that the record must affirmatively disclose a knowing and voluntary plea. [Citation omitted].” Noble v. State, 240 Kan. 162, 163, 727 P.2d 473 (1986).
Thus, before sentencing, the trial court has discretion to allow a defendant to withdraw a plea at any time. After sentence has been imposed, the trial court in its discretion may allow a defendant to withdraw his guilty plea to “correct manifest injustice.” We have held that “[a] plea of guilty or nolo contendere may be withdrawn after sentence as provided in K.S.A. 22-3210(7) only for good cause shown when in the discretion of the trial court it becomes necessary to correct manifest injustice.” State v. Underwood, 228 Kan. 294, Syl. ¶ 2. Accord Trotter v. State, 218 Kan. 266, 269, 543 P.2d 1023 (1975). Our standard of review is whether the trial court abused that discretion in denying the defendant’s motion to withdraw his guilty plea.
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. All judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” State v. Martin, 237 Kan. 285, Syl. ¶ 2, 699 P.2d 486 (1985).
Defendant contends that the trial court abused its discretion in denying his motion to withdraw his guilty plea because at the time the plea was accepted the trial court did not comply with the requirements of K.S.A. 22-3210.
We have held that a trial court’s failure to strictly comply with the requirements of K.S.A. 22-3210 may be reversible error unless the record, viewed in its entirety, discloses that the plea was “accepted by the trial judge in compliance with the statute.” Noble, 240 Kan. 162, Syl. ¶ 1. The issue before us, therefore, is whether the trial court abused its discretion in determining that the record of the plea proceedings disclosed that the trial court accepted the plea in compliance with the statute.
With l-espect to the defendant’s first contention, we believe that the record discloses that the defendant was informed of the maximum penalty that could be imposed upon acceptance of his plea. The defendant was present with counsel at his plea hearing; at that hearing the prosecutor stated for the record that the maximum sentence would be 15 years to life. See K.S.A. 21-4501(b). The prosecutor latér stated that he thought “Mr. Morris [was] aware that if there is any deviation from the terms of probation whatsoever, what he’s looking at.” After these statements by the prosecuting attorney, the following colloquy took place between the court and defendant:
“THE COURT: [Y]ou have heard everything that Mr. Clark and Mr. Gillette have been talking about, as far as how to dispose of this case?
“A: “Yes, your honor.
"THE COURT: Are all the things that you have heard what you understand to be the agreement between you and the state, as far as how to dispose of the case?
“A: “Yes, your honor.”
Moreover, in August 1991, the trial court heard the defendant’s motion to modify his sentence. At that time the prosecutor said: “The 15 years to life . . . was a plea negotiated sentence . . ., and it was one of the things that he was willing to do, and was understanding and fully aware of that sentence as part of the plea negotiations.” The trial court reduced the defendant’s sentence to 10 year's to life. Finally, at the hearing on the defendant’s motion to withdraw his plea, his trial counsel testified that the defendant was aware of the maximum penalty:
“Q: Is it your understanding that he was aware of the maximum penalty under the law for the charge of rape?
“A: I don’t think there’s much question about that. We talked about a life situation.”
In Trotter, the record demonstrated that defense counsel had informed the defendant of the possible penalty and consequences of his plea. We concluded that counsel’s advice together with the court’s advice established that the defendant knowingly and intelligently entered his plea. 218 Kan. at 269-70. Although Morris testified at the hearing to withdraw his plea that he did not know what the maximum penalty was at the time he pled guilty, there is evidence in the record to support the trial court’s finding that the defendant was informed of the maximum penalty.
The defendant next contends that the trial court should have allowed him to withdraw his guilty plea because the court did not adequately determine whether his plea was entered knowingly and voluntarily. He argues that the court never discussed the elements of the offense with him.
At the plea hearing, the elements of the offense were not discussed in detail. The prosecutor explained that “it was not necessarily a thing that one would normally think of when thinking of the crime of rape, in that there was not the placing of the male sex organ into the female sex organ. We’re talking about fingers, and so it’s a little different type of situation that what one would normally think of.” The following dialogue later occurred between the court and the defendant:
“THE COURT: . . . Are you admitting your guilt to the charge because you admit doing it, or just as a means of getting out of jail?
“A: I’m admitting that I did it the way the County Attorney entered it.
“THE COURT: The way he described it a while ago?
“A: Yes, you know, not actually doing it, you know, putting my penis in and everything else, but, you know, doing it with my hand, like he said.
“THE COURT: All right. And you understand, though, that even though that is what he described, that it would still constitute a violation of the statute?
“A: Yes, sir.
“THE COURT: And you are admitting your guilt because that is what you want to do?
“A: Yes, sir.”
The court thereafter found that the plea was knowingly and voluntarily made.
Over two years later, the defendant filed his motion to withdraw his plea. At the hearing on that motion, the defendant’s wife testified that he was “kind of incoherent” just before the plea hearing and that he spent most of his time sleeping for the first three days after the hearing. Morris testified at the hearing on his motion to withdraw his plea that he had taken an “overdose” of medication the night before the plea hearing. He added that he barely remembered the plea hearing and was not mentally capable of entering a plea at that time. He also testified that he had attempted suicide several times over the last 15 years and that he had received inpatient treatment for emotional problems several times over the past 25 years. Given this evidence, the defendant now argues that the trial court should have made a more detailed inquiry before concluding that the plea was knowingly and voluntarily made.
The State contends that the following facts support the trial court’s conclusion that the plea was knowingly and voluntarily made. First, an evidentiary preliminary hearing was held and the defendant was bound over on all charges in the complaint. He thus was aware of the factual allegations on which the charges were based. Second, the defendant thereafter entex-ed a plea agreement. Third, at the plea heaxing, the court discussed with the defendant the rights he was waiving by pleading guilty. The defendant said that he understood what rights he was waiving and that he wanted to waive those rights. Fourth, contrary to the defendant’s claim that he was sluggish and incoherent at the time of the plea hearing, a fair reading of the transcript indicates he was aware of and understood what was taking place. The court asked the defendant if he heard and understood what the two attorneys had been discussing, and the defendant indicated that he did. The court specifically asked the defendant if he had any mental or emotional problems that would “tend to indicate a problem in your understanding of what we’re doing here today”; the defendant said, “No, sir.” The defendant discussed with the court the manner in which the crime was committed. After sentence was imposed, the defendant specifically asked the court about the meaning of concurrent and consecutive sentences. Fifth, at the hearing on the motion to withdraw his plea, the defendant’s trial counsel testified that he did not notice “anything seriously wrong” with the defendant on the day he pled guilty and that the defendant did not appear to be “zombie-like” or “sluggish.” We agree with the State and find the above contentions persuasive.
Finally, the Topeka Correctional Facility report indicated that the defendant’s “thinking is well organized, coherent, and logical.” We also note that the defendant was found competent to stand trial after a competency evaluation. Although a competency determination is not dispositive of whether a plea was knowingly and voluntarily made, in this case it does provide evidence that tends to contradict the defendant’s contention that he was somehow mentally or emotionally disturbed to the point that he could not understand the plea proceedings.
We hold that the record, when viewed as a whole, demonstrates that the defendant was adequately advised of the maximum penalty and that he knowingly and voluntarily entered his plea of guilty.
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The opinion of the court, was delivered by
McFarland, J.:
This is an action brought on the relation of the Attorney General against the defendant Board of County Commissioners of Seward County, Kansas, (Board) and the three individual commissioners, alleging violation of the Kansas Open Meetings Act (KOMA), K.S.A. 75-4317 et seq. The district court entered summary judgment in favor of the defendants on the grounds that the complained-of telephone calls were not within the purview of KOMA’s proscribed conduct. The State appeals therefrom.
Commissioner Wettstein resides in Kismet. The other two commissioners reside in Liberal. The petition alleges that between December 20, 1988, and January 2, 1990, Commissioner Wett-stein made 18 telephone calls to Commissioner Sealey and four telephone calls to Commissioner Mehl. The petition further alleges that in the same time period Commissioner Sealey made three telephone calls to Commissioner Wettstein. Each of the calls was paid for with county funds. The State contends that as county business was discussed during each telephone call, and two members constitute a quorum of a three-member board, such telephone calls constitute a violation of KOMA.
The district court held: (1) Telephone calls are not proscribed conduct under KOMA; (2) even if such telephone calls were within the scope of KOMA, they were not “prearranged” meetings under KOMA; and (3) the defendants were, accordingly, entitled to summary judgment.
Appellate rules governing review of summary judgments were set forth in Finstad v. Washburn University, 252 Kan. 465, 468, 845 P.2d 685 (1993), as follows:
“Where the facts are not disputed, summary judgment is appropriate. We must view those facts in the light most favorable to the party who defended against the motion for summary judgment, and if reasonable minds could differ as to the conclusion drawn from the facts, summary judgment must be denied. However, if the only questions presented are questions of law, the summary judgment is proper.”
The first issue raised is whether the district court erred in holding that telephone calls were not “meetings” under KOMA and, hence, were not within the purview of KOMA. This is a question of law.
Preliminarily, we note there is no common-law right of the public or press to attend meetings of governmental bodies, and any such right is created by statute and is governed by the statutory language employed.
The pertinent portions of KOMA are K.S.A. 75-4317 and 75-4317a, which provide:
75-4317:
“(a) In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.
“(b) It is declared hereby to be against the public policy of this state for any such meeting to be adjourned to another time or place in order to subvert tire policy of open public meetings as pronounced in subsection (a).”
75-4317a:
“As used in this act, ‘meeting’ means any prearranged gathering or assembly by a majority of a quorum of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency.”
In State ex rel. Murray v. Palmgren, 231 Kan. 524, Syl. ¶ 4, 646 P.2d 1091 (1982), we held:
“The Kansas Open Meetings Act, K.S.A. 75-4317 et seq., was enacted for the public benefit and is therefore construed broadly in favor of the public to give effect to its specific purpose.”
The State contends that, under the requisite broad construction, a telephone call is included in the term “meeting.” We do not agree.
Preliminarily, some rules of statutory construction need to be stated. 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. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, Syl. ¶ 1, 855 P.2d 956 (1993). When a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a determination of what the law should or should not be. Thus, no room is left for statutory construction. State v. Schlein, 253 Kan. 205, Syl. ¶ 4, 854 P.2d 296 (1993). When determining whether a statute is open to construction, or in construing a statute, ordinary words are to be given their ordinary meaning, and courts are not justified in disregarding the unambiguous meaning. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 7, 834 P.2d 368 (1992). It is presumed the legislature understood the meaning of the words it used and intended to use them. Rogers v. Shanahan, 221 Kan. 221, 223-24, 565 P.2d 1384 (1976). The purpose of all rules of statutory construction is to ascertain the intention of the legislature as expressed in the statute. These rules do not permit the courts to read into a statute something that does not come within the wording of the statute. Joe Self Chevrolet, Inc., v. Board of Sedgwick County Comm’rs, 247 Kan. 625, 633, 802 P.2d 1231 (1990). Statutes are to be construed to avoid unreasonable results. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
Meeting is defined in K.S.A. 75-4317a as a prearranged “gathering or assembly.” Reflective of the ordinary meanings of those terms are the following:
“Gathering” means “to bring together into a crowd, group, body, or mass.” Webster’s Third International Dictionary 940 (1986). The verb “to gather” means “to come or bring together into a group, mass, or unit.” Webster’s New World Collegiate Dictionary 475 (5th ed. 1977).
“Assembly” means “a company of persons collected together in one place usually for some common purpose.” Webster’s Third International Dictionary 131 (1986). Another dictionary defines the term “assembly” as “[t]he concourse or meeting together of a considerable number of persons at the same place.” Black’s Deluxe Law Dictionary 115 (6th ed. 1990).
Inherent in the ordinary meaning of “gathering” or “assembly” is the requirement that persons at a gathering or assembly are in the physical presence of each other. Granted, in some instances space limitations might result in an overflow crowd being in a hallway or listening in and participating from an adjacent room, but such persons are attending the gathering or assembly. The parties to a telephone conversation are not within the ordinary meaning of a gathering or assembly.
The same result is reached when we study the legislative history involved.
In 1976, K.S.A. 75-4317 was in the same form as it is today and is repeated herein for convenience as follows:
“(a) In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.
“(b) It is declared hereby to be against the public policy of this state for any such meeting to be adjourned to another time or place in order to subvert the policy of open public meetings as pronounced in subsection (a).”
In 1977, S.B. 5 was introduced, which would have added the following section thereto:
“(c) No chance meeting, social meeting or electronic or written communication shall be used in circumvention of the spirit or requirements of this act.”
The word “prearranged” has never been contained in K.S.A. 75-4317. The purpose of the proposed amendment was to “strengthen” KOMA by prohibiting the stated means being used to circumvent the act. Re: Proposal No. 18 — Open Public Meetings Law, Report on the Kansas Legislative Interim Studies to the 1977 Legislature.
Clearly, then, these four alternative opportunities for communication were not contemplated to be within the term “meeting” in K.S.A. 75-4317. The proposed amendment to the statute was, however, deleted, and what was codified as K.S.A. 75-4317a was enacted. This statuté provides:
“As used in this act, ‘meeting’ means any prearranged gathering or assembly by a majority of a quorum of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency.”
The legislature had the opportunity to expand the term meeting to include telephone calls, but instead narrowly defined meeting to include only a prearranged gathering or assembly. Thus, “meeting” requires the gathering or assembly of persons in the physical presence of each other.
In Roanoke School Bd. v. Times-World, 226 Va. 185, 307 S.E.2d 256 (1983), the Virginia Supreme Court was called upon to determine whether a prearranged telephone conference call in which all members of a school board participated was a “meeting” within the purview of Virginia’s Freedom of Information Act.
The Virginia court stated:
“We are well aware of the salutary purposes of freedom of information laws, of the statutory requirement that such laws be liberally construed to promote their purposes, and that any exceptions from applicability be narrowly construed. However, there is no common-law right of the public or press to attend the meetings of governmental bodies. Therefore, in the absence of a statutory prohibition, there can be no legal or constitutional objection to a governmental body transacting certain business by means of a telephone conference call. If such a call is prohibited, the prohibition must be found in legislative enactment. It cannot be done by judicial fiat.
“The Virginia Freedom of Information Act contains a very specific definition of the words ‘meeting’ or ‘meetings’ which the Act was designed to cover. A ‘meeting’ under the statute is deemed to occur when a governmental body is ‘sitting as a body or entity or as an informal assemblage.’ Code § 2.1-341(a) (emphasis added). Nowhere in the Act is any reference made to a telephone call or conversation. The commonly accepted meaning of the word ‘meeting’ is that found in Black’s Law Dictionary 886 (5th ed. 1979). There, ‘meeting’ is defined as ‘[a] coming together of persons; an assembly. Particularly, in law, an assembling of a number of persons for the purpose of discussing and acting upon some matter or matters in which they have a common interest.’ Webster’s Third New International Dictionary 1404 (1971) defines ‘meet’ as follows: ‘[T]o come together usually from different directions: come face to face ... to hold a session: convene for worship, business, or other purpose.’ ‘Meeting’ is defined there as ‘an act or process of coming together ... a gathering for business, social, or other purposes.’
“Irrespective of one’s preferred definition, whether it be coming together, assembling, gathering, or meeting, the physical presence of the participants is essential. A telephone conference call does not qualify. A participant in a telephone call can communicate with others, listen to them, speak and be heard, but none of this is done in the physical presence of individuals who have come together, met, assembled, and are ‘sitting’ as a body or entity.
"The appellees argue that if a telephone conference call is not prohibited by the Act, then the Act contains a ‘glaring loophole.’ This may be, but, if true, it is a loophole that must be closed and corrected by the General Assembly, not by the courts. We are not dealing here with the denial of á constitutional right but with a statute whose subject matter is one within the discretion of the legislature.” 226 Va. at 191-92.
The same rationale applies with equal force to the issue before us and is persuasive. Telephone calls are not included in KOMA. The legislature recognized this fact in 1977 and declined to include them. If they are to be included, it is up to the legislature to do so.
If the legislature does amend KOMA, hopefully, such amendments will clearly spell out what conduct is to be prohibited by the act. K.S.A. 75-4320a(b) places the burden of proof on the public body or agency to sustain its action. In State ex rel. Murray v. Palmgren, 231 Kan. 524, Syl. ¶ 10, this court held:
"To ‘knowingly’ violate the act means to purposefully do the acts denounced by the Kansas Open Meetings Act and does not contemplate a specific intent to violate the law. K.S.A. 75-4320(a).”
Public officials need to know just what conduct is proscribed by KOMA. Uncertainty is not in the best interest of either the public or public officials subject to KOMA. We note over 50 Attorney General opinions have been issued to answer various questions raised by KOMA. Considerable confusion obviously exists as to what KOMA requires.
The facts herein illustrate the difficulty. The calls were paid for with public funds. The State contends that the very existence of the calls establishes wrongdoing: If county business was discussed, then KOMA was violated; if county business was not discussed, then a misuse of public funds occurred. Since the action herein was filed, the three commissioners do not communicate with each other directly by telephone but tell a secretary what to say to another commissioner. The abundance-of-caution approach taken as a direct result of uncertainty can lead to absurd and inefficient results not required by KOMA.
In view of our determination of this issue, other issues raised need not be addressed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals her conviction of possession of cocaine, K.S.A. 65-4127a, claiming (1) the conduct of the police was so outrageous that it constituted a violation of due process and (2) there was insufficient evidence to convict.
We recently recognized that law enforcement conduct may be so outrageous as to violate the Due Process Clause. State v. Nelson, 249 Kan. 689, 822 P.2d 53 (1991). If the conduct of government agents is not outrageous, the defense of entrapment may be available. Because of the length of the facts and their application to the defense of outrageous conduct of government officials, we will first review the defense.
OUTRAGEOUS GOVERNMENT CONDUCT
The defense of outrageous government conduct is an offshoot of entrapment. Nelson, 249 Kan. at 692. Entrapment has a long history in Kansas, first in common law, and then under the statute adopted in 1970. State v. Rogers, 234 Kan. 629, 632, 675 P.2d 71 (1984). The statute, K.S.A. 21-3210, provides:
“Entrapment. 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 coconspirator; 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."
The defense of entrapment arises when a law enforcement officer, or someone acting on the officers behalf, generates in the mind of a person who is innocent of any criminal purpose the original intent or idea to commit a crime which the person had not contemplated and would not have committed but for the inducement of the law officer. A defendant can rely on the defense of entrapment when the defendant is induced to commit a crime which the defendant had no previous intention of committing, but the defendant cannot rely on the defense or obtain an instruction on entrapment when the evidence establishes that the defendant had a previous intention of committing the crime and was merely afforded an opportunity by a law officer to complete it. State v. Jordan, 220 Kan. 110, Syl. ¶¶ 7, 8, 551 P.2d 773 (1976).
In United States v. Russell, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973), the United States Supreme Court discussed the law of entrapment and a new defense founded upon an intolerable degree of governmental participation in the criminal enterprise, i.e., outrageous government conduct. Russell was convicted in the United States District Court of the unlawful manufacture and sale of methamphetamine. Russell’s defense was that he was entrapped into committing the offenses by government undercover agents who supplied him the essential ingredient to manufacture methamphetamine. On appeal, the United States Court of Appeals for the Ninth Circuit reversed the conviction for the reason that the government had supplied an essential chemical for manufacturing the drug. 459 F.2d 671 (9th Cir. 1972). The Ninth Circuit concludéd' that as a matter of law “a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.” 459 F.2d at 673. The United States Supreme Court granted certiorari.
The Supreme Court noted that the Ninth Circuit had in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been “an intolerable degree of governmental participation in the criminal enterprise.” The Ninth Circuit had decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense. The Supreme Court observed that this new defense was held to rest on either of two alternative theories. One theory is based on two lower court decisions which had found entrapment, regardless of predisposition, whenever the government supplies contraband to the' defendants. United States v. Bueno, 447 F.2d 903 (5th Cir. 1971); United States v. Chisum, 312 F. Supp. 1307 (C.D. Cal. 1970). The second theory, a non-entrapment rationale, is based on a Ninth Circuit decision that reversed a conviction because a government investigator was so enmeshed in the crim inal activity that the prosecution of the defendants was held to be repugnant to the American criminal justice system. Greene v. United States, 454 F.2d 783 (9th Cir. 1971). The Supreme Court noted that the Ninth Circuit held that these two rationales constitute the same defense, and that only the label distinguishes them. In any event, the Ninth Circuit held that “[b]oth theories are premised on fundamental concepts of due process and evince the reluctance of the judiciary to countenance ‘overzealous law enforcement.’ ” 459 F.2d at 674 (quoting Sherman v. United States, 356 U.S. 369, 381, 2 L. Ed. 2d 848, 78 S. Ct. 819 [1958]).
In Nelson, we held that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise. We also stated that governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the Due Process Clause of the 5th Amendment of the United States Constitution. State v. Nelson, 249 Kan. 689, Syl. ¶¶ 2, 3.
THE FACTS
There were two versions of the events presented at trial. The State’s witness, Rick Crowell, who was on parole for a theft conviction, was approached regarding a marijuana deal. Crowell then called the Crimestoppers phone number and agreed to supply information to the police. Crowell testified he had been working for the Junction City Police Department as a paid confidential informant for about three months. Detective Jackson supervised Crowell. Without giving specific details, Jackson opined that Crowell was a reliable informant.
Crowell had been living at the Rambler Motel about one month when Gloria Van Winkle moved into the motel. Crowell met Van Winkle the day she moved in and saw her frequently between the week she moved in and the date of her arrest. Crowell observed her smoke cocaine on a daily basis and would go with her when she would purchase it. When Crowell told Van Winkle he had dealt drugs in Texas, she expressed an interest in dealing drugs in Junction City.
Crowell called the police department and told them Van Winkle wanted to buy cocaine. This was the first time Crowell had men tioned Van Winkle’s name to the police. Officer Story testified that through other informants, whom he was unable to name, the police had been told Van Winkle was using drugs. Story knew Van Winkle and knew that she had previous drug-related convictions. The police were interested in Van Winkle because she was a repeat offender and they believed she was connected with major drug dealers.
Story told Crowell to offer to sell Van Winkle an ounce of cocaine for $1,200. When Crowell offered to sell her the ounce of cocaine, Van Winkle told Crowell she could only afford Vi6 ounce for $150. The deal was set for 9:00 p.m. that day. Detective Homman, operating undercover, acted as a drug dealer that Crowell knew from Texas who was in town with cocaine to sell.
Van Winkle drove Crowell to meet Homman. Crowell introduced Van Winkle to Homman and Homman said, “I heard you’re looking for party supplies.” After Van Winkle explained she only had $44 of the purchase price, Homman agreed to spot her $6, and to forego the remaining hundred dollars in exchange for a tattoo Crowell had done for a friend of Homman’s. Homman showed Van Winkle the cocaine. She said it looked like cocaine she had seen earlier in the week in Junction City. Van Winkle mentioned she knew someone who could deal in larger amounts of cocaine. Van Winkle stated to Homman she had previously dealt cocaine in Wichita and if she had been given more notice, she could have set up other drug deals with Homman. Van Winkle placed the purchase money on the bed. Crowell picked it up and handed it to Homman. Crowell then picked up the cocaine and handed it to Van Winkle. Crowell and Van Winkle left.
After the deal had been consummated, Stoiy gave the signal for the arrest of the defendant. As tire officers approached Van Winkle in the hallway, she threw the cocaine down. The police searched her purse and car but did not find other drugs or drug paraphernalia. Story explained to Van Winkle she was facing a life sentence; then he offered her an opportunity to have the charges reduced or dismissed if she would become an informant and provide the police with information regarding either a significant person or a number of people who were involved in drugs. Although Van Winkle expressed a willingness to cooperate, Story became convinced she was not being truthful or reliable and terminated the discussion.
Although the meeting was to be auditorially monitored, there were problems and Officers Story and Jackson were able to hear only parts of the conversation. Story and Jackson did overhear Van Winkle’s comment as to the similarity between the cocaine involved and other cocaine Van Winkle had seen in Junction City.
Van Winkle gave a different version of the events to the jury. She admitted that she had previous drug convictions and was recently released from prison, but denied using drugs since her release. She testified Crowell kept coming over to her motel room to ask for food, shampoo, soap, and rides. When Crowell came over the day of tire arrest, Van Winkle told him to leave her alone. After Van Winkle returned from dinner, Crowell came back to her room and asked her for a ride to his girlfriend’s place. Crowell had Van Winkle drive to a motel. Van Winkle stated she initially refused to accompany Crowell to the motel room. He convinced her to go to the room. As they approached the motel room Crowell handed her a wad of money and asked her to count it. Inside the room, Crowell and Homman first talked about tattoos and then discussed drugs. She testified that she did not want to be there but “played along.” After counting the money, she gave it back to Crowell. Van Winkle claimed she did not handle the drugs.
Van Winkle stated that after the police arrested her, they told her she would receive a life sentence unless she agreed to become an informant. On cross-examination, Van Winkle claimed Homman and Crowell were lying as to what went on inside the motel room. She admitted she may have told Homman tire cocaine looked like other cocaine she had seen around Junction City.
The jury was instructed on the defense of entrapment and to carefully evaluate the credibility of Crowell as a confidential informant. The jury found Van Winkle guilty of possession of cocaine. The court sentenced her to life in prison because of her two prior cocaine possession convictions and placed her on five years probation. The court later revoked her probation and reinstated the sentence.
WAS THE GOVERNMENT CONDUCT OUTRAGEOUS?
Whether the government’s conduct is sufficiently outrageous is a question of law and depends on four factors: the type of criminal activity involved, whether the activity is preexisting or instead “instigated” by the government, whether the government is directing the activity or merely participating in it, and the causal link between the government’s conduct and the acts of the defendant. Nelson, 249 Kan. at 696.
The type of activity involved
The type of governmental activity is important because certain crimes, particularly drug crimes, require giving law enforcement “ ‘flexibility adequate to counter effectively such criminal activity.’ ” 249 Kan. at 696 (quoting United States v. Brown, 635 F.2d 1207 [6th Cir. 1980]). The use of “reverse stings,” in which the undercover agent offers to sell drugs to defendants in order to charge the defendants with possession, has been recognized by this court in the recent case of State v. Starks, 249 Kan. 516, 820 P.2d 1243 (1991).
Van Winkle contends the State instigated the crime and specifically targeted her by paying Crowell extra for cases involving cocaine and/ or repeat offenders, by reducing the price so she could afford the purchase, by providing the cocaine, and by Crowell’s conduct in picking up the money and cocaine and handing them to Homman and Van Winkle, respectively.
The evidence, however, indicates Van Winkle was not targeted until she told Crowell she wanted to deal in drugs and he then informed the police of her interest. The State’s evidence showed she instigated the crime. The fact an informant-witness was compensated goes to credibility and is for the jury to assess. U.S. v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987). The use of informants to infiltrate criminal enterprises is a recognized and permissible means of investigation by the government. This proposition remains true even though an informant or government agent engages in some criminal activity or supplies something of value to the criminal enterprise. State v. Nelson, 249 Kan. 689, Syl. ¶ 6, 822 P.2d 53 (1991).
Direction of the activity
The police did direct some of the activity. They set the initial amount and price but Van Winkle, because of her financial condition, negotiated for a lesser amount. She also informed Homman she wanted rock, not powder, cocaine. Excessive government involvement can lead to a violation of due process where the government steps in and manages the criminal activity from start to finish. The government involvement in this case never became excessive. Van Winkle actively participated in the completion of tire crime by negotiating the amount and type of cocaine involved.
The causal connection
Van Winkle contends that but for the police conduct, she would not have committed a crime. The evidence, however, indicates that is not true. Crowell testified Van Winkle was purchasing and using cocaine on a daily basis before- she attempted to purchase drugs from the government agent. Homman testified Van Winkle mentioned she could have set up other drug deals. In light of the testimony adduced by the State, it is apparent Van Winkle was already engaged in criminal drug activity.
In assessing Van Winkle’s predisposition, the jury was instructed that these factors are to be considered:
(a) circumstances at the time of the sale,
(b) setting the price of the drug by the defendant,
(c) solicitation by the defendant to make the deal, or
(d) prior deals by the defendant. See PIK Crim. 3d 54.14.
Van Winkle asserts that predisposition to commit a crime does not bar the use of the defense of outrageous government conduct. We determined otherwise in Nelson. When predisposition exists, the defense of denial of due process of law by abusive government conduct is also' unavailable. Nelson, 249 Kan. 689, Syl. ¶ 4.
In Nelson, we cited Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). We note it was a plurality in Hampton that found predisposition was a bar to the defense of entrapment. In Hampton, Chief Justice Burger and Justices White and Rehnquist agreed that predisposition barred this defense. Justices Powell and Blackmun concurred in the result but felt the Court need not reach the issue, at that time, of whether predisposition bars the defense of outrageous government conduct. Justices Brennan, Stewart, and Marshall dissented and felt that the government agent’s outrageous conduct should not be tolerated regardless of whether the defendant was predisposed to commit the crime. See U.S. v. Garza-Juarez, 992 F.2d 896, 903 (9th Cir. 1993); U.S. v. Gleason, 980 F.2d 1183, 1187 (8th Cir. 1992).
The United States Supreme Court5 after the Russell and Hampton decisions, has since revisited this area of the law, but neither time did it either apply the defense of outrageous conduct or reconsider the issue of whether predisposition should bar the defense. In Mathews v. United States, 485 U.S. 58, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988), the Supreme Court was faced with tire issue of whether a defendant can deny commission of the crime and still have the jury instructed on the defense of entrapment. Mathews, a Small Business Administration (SBA) official, allegedly agreed to authorize an SBA loan in return for a bribe. The trial court refused to instruct the jury on entrapment because Mathews would not admit all of the elements of the crime involved. The United States Supreme Court reversed Mathews’ conviction and held, under the relevant federal statutes, “that even if the defendant denies one or more elements of the crime, he [or she] is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.” 485 U.S. at 62. Cf. State v. Farmer, 212 Kan. 163, 167-68, 510 P.2d 180 (1973) (defendant who had admitted all elements except the element of intent entitled to entrapment instruction).
In Jacobson v. United States, 503 U.S. 540, 118 L. Ed. 2d 174, 112 S. Ct. 1535 (1992), the defendant was charged with intentionally receiving child pornography through the mail. Jacobson had ordered and received nude photos of minors at a time when the receipt of these materials was not yet illegal. After receipt of these materials became prohibited under federal law, federal postal inspectors found Jacobson’s name on a mailing list maintained by the seller of the materials previously received by Jacobson. The postal inspectors repeatedly, under the guise of fictitious organizations, sought to induce Jacobson to order materials which are now prohibited from being received through the mail. Jacobson, after two years of government mailings, finally succumbed and ordered one magazine. After the controlled delivery and arrest, a search of Jacobson’s home only yielded the earlier materials and no other evidence Jacobson was actively engaged in possessing child pornography.
The jury was instructed on the defense of entrapment, and it convicted Jacobson. The Supreme Court reversed the conviction, finding that as a matter of law, the government had failed to produce sufficient evidence to support the jury’s conclusion that Jacobson’s predisposition existed prior to the government’s repeated attempts to solicit orders from Jacobson. The only evidence of predisposition came after two years of governmental prodding and persuasion.
The United States Supreme Court has not repudiated its indication in Hampton that predisposition bars the defense of outrageous government conduct. Unless it does so, we reaffirm our holding in Nelson that predisposition precludes a defendant from raising a claim of outrageous government conduct.
OTHER COURTS’ DECISIONS FINDING OUTRAGEOUS GOVERNMENT CONDUCT
Other courts have examined certain government activities and found the government agents’ conduct to be outrageous. In United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), the government set up a drag laboratory for Twigg, through an informant, at no cost to the defendant. The Third Circuit reversed the conviction in finding DEA agents set the defendant up and provided the necessary supplies and technical expertise; when Twigg and the informant “encountered difficulties in consummating the crime, they assisted in finding solutions.” 588 F.2d at 381. The government’s conduct created additional crimes solely to press more charges against Twigg, without any indication Twigg was involved in any illegal activity. 588 F.2d at 381.
In State v. Glosson, 462 So. 2d 1082 (Fla. 1985), tire Florida Supreme Court found that paying a confidential informant a 10% contingency fee on civil forfeitures connected with any successful prosecutions was per se outrageous government conduct and violative of the defendant’s rights to due process. But see U.S. v. Olson, 978 F.2d 1472, 1482 (7th Cir. 1992), (contingent fee paid to confidential informant, by itself, is not a per se violation of due process).
In People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978), Isaacson’s conviction was reversed where the police had physically beat and threatened an informant in order to set up Isaacson. The informant tiren overcame Isaacson’s original unwillingness to participate by playing on the sympathy and past relationship between Isaacson and the informant. Finally, through an “incredible geographical shell game,” the informant lured Isaacson across the Pennsylvania state line into New York to allow New York law enforcement agents to arrest Isaacson for violating New York’s laws. Isaacson, 44 N.Y.2d at 522.
After considering all the evidence in light of the factors previously discussed, the only conclusion that can be drawn is that the police conduct involved was not outrageous. No due process violation occurred.
SUFFICIENCY OF THE EVIDENCE
Van Winkle attacks the sufficiency of the evidence on two grounds: first, because her claim she was entrapped undermines a finding of intent to possess, a requisite element of the crime charged, and second, because the testimony of the confidential informant was unreliable and the remaining evidence is insufficient to support her conviction. Those two claims are discussed separately. We first note our standard of review.
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, Syl. ¶ 5, 799 P.2d 1003 (1990).
The jury was instructed that although entrapment is an affirmative defense, a predisposition to commit the offense precludes the defense of entrapment. The jury was also instructed that to find Van Winkle not guilty, it had to find the police conduct entrapped the defendant. The jury’s verdict does not indicate whether it found Van Winkle was predisposed to commit the offense. By rejecting the defense of entrapment, the jury could have found either that predisposition existed or that the police conduct did not entrap the defendant.
Homman and Crowell both testified Van Winkle did not show any reluctance to participate in the deal. After Crowell offered an ounce for $1,200, Van Winkle countered with an offer to buy a Vi6 ounce for $150. Van Winkle told Crowell she wanted to deal in drugs. Van Winkle smoked cocaine in front of Crowell, and she told Homman she had sold drugs in Wichita. There is ample evidence to support both a finding of predisposition and that Van Winkle had the requisite intent to possess the cocaine.
Van Winkle’s other challenge concerns the credibility of the testimony of Crowell. Although appellate courts generally refrain from weighing questions of credibility, in State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983), this court found that the other uncon-tradicted evidence cast so much doubt upon the credibility of the State’s witness’ uncorroborated claim that she was raped that no rational factfinder could have believed her testimony sufficient to find the defendant guilty beyond a reasonable doubt. That case does not support the facts of this case. Here Crowell’s testimony, with limited exceptions, is supported by the testimony of Officers Story and Jackson and Detective Homman. The jury was instructed to carefully scrutinize Crowell’s testimony.
It is the function of the jury in a criminal case to determine the weight and credit to be given the testimony of each witness, whether expert or lay in nature. State v. Grubbs, 242 Kan. 224, Syl. ¶ 2, 747 P.2d 140 (1987). On appellate review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are resolved in favor of the State. State v. Jarmon, 245 Kan. 634, 638, 783 P.2d 1267 (1989). This court looks only to tire evidence which supports the verdict, and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. State v. Dorsey, 224 Kan. 152, Syl. ¶ 4, 578 P.2d 261 (1978).
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Lawrence M. Jarvis, an attorney admitted to the practice of law in Kansas. A hearing panel of the Kansas Board for Discipline of Attorneys (the panel) unanimously determined that Jarvis had violated Rule 1.5(f)(1) of the Model Rules of Professional Conduct (MRPC) (1993 Kan. Ct. R. Annot. 270), which provides:
“A lawyer shall not enter into an arrangement for, charge, or collect:
(1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony, support, or property settlement.”
The panel then recommended that the discipline of public censure be imposed pursuant to Supreme Court Rule 203(a)(3) (1993 Kan. Ct. R. Annot. 162). Jarvis has filed exceptions to the panels findings and recommended discipline.
The following facts do not appear to be in dispute. Jarvis was retained by Shirley Gerner to commence a divorce action against her husband, Roñal Gerner. Jarvis prepared the necessary pleadings and the petition was filed on August 24, 1990, in the Johnson County District Court (Case No. 90 C 9690). Trial of the action was had on January 23, 1991. At the conclusion of the evidence, the trial court granted the divorce and held, inter alia, that Mr. Gerner should pay maintenance to Ms. Gerner of $100 per month for 8.2 years. This maintenance figure was based upon a W-2 form Mr. Gerner had received the previous day. The form showed Mr. Gerner’s 1990 pay was some $6,000 less than the pay he had received in prior years. Each party was to pay his or her own attorney fees. Jarvis’ fee was $2,100, based upon hours expended. Immediately following the trial, Ms. Gerner and Jarvis had a discussion. Both were dissatisfied over the amount of maintenance awarded and there was concern that Mr. Gerner had concealed the full amount of his income. Ms. Gerner did not desire to incur any additional attorney fees. Evidence as to what else may have been said in this January 23 conversation is disputed and will be discussed later in the opinion.
Continuing with the undisputed evidence, the next day (January 24, 1991), Jarvis prepared the following document:
“CONTINGENCY FEE AGREEMENT
“BE IT KNOWN on this twenty-fourth day of January, 1991, that Shirley Ann Gerner [hereinafter ‘Client’] and Laurence M. Jarvis [hereinafter ‘Attorney’] do agree to the following contingency fee contract.
“At the divorce trial of Marriage of Gerner held January 23, 1991, the Court awarded the amount of One Hundred Dollars ($100.00) per month for and as maintenance for a period of 8.2 years. This is based upon the Court’s finding that respondent [Mr. Gerner] had income of approximately Twenty-Seven Thousand Dollars ($ 27,000.00) as shown on a W-2 produced by him in Court.
“Both Client and Attorney believe that there are additional monies earned by Mr. Gerner through commissions or otherwise in the year 1990. He had been making Thirty-Five to Thirty-Eight Thousand Dollars ($ 35-38,000.00) in all of the three (3) years prior to 1990.
“Attorney agrees to subpoena such records and conduct such discovery and production of documents as are necessary to attempt to find additional sources of income.
“If hereafter there should be an increase in the maintenance, the parties agree that they shall split equally, 50% each, any such increase due to the finding that additional income did in fact exist with respondent.
“Furthermore, Attorney shall file all appropriate motions and handle those motions and hearings at no charge to Client. It is expressly agreed that, if no additional sums of maintenance are recovered, then there are no fees or repayment of expenses due to Attorney.
“This agreement is as to additional maintenance only. It does not affect the attorneys fees previously earned by Attorney in performing services in the divorce case by the hour. Those fees are separate and apart from this agreement.
“Signed in Kansas City, Wyandotte County, State of Kansas.
“SHIRLEY ANN GERNER
‘Client’
/s/ Laurence M. Jarvis
LAURENCE M. JARVIS
‘Attorney’ ”
During the evening of that day, Mr. Gerner telephoned his attorney, Carl A. Fleming, to advise that he had just received a second W-2 form showing additional income. The discrepancy arose from the fact that the car dealership that employed Mr. Gerner had changed ownership during the year. That same evening, Mr. Fleming left a message on Jarvis’ answering machine to call.
The following day (January 25), the two attorneys talked and agreed to increase the maintenance to $291.79 per month, based upon the additional income and in accordance with Johnson County guidelines Based on this agreement between counsel, Jarvis prepared the journal entry granting the divorce. The new maintenance figure was incorporated. This was forwarded to Mr. Gerner’s counsel by Jarvis with a cover letter dated January 25, 1991, which states:
“Dear Carl:
“Enclosed you will find a decree that I have prepared following the hearing of January 23, 199[1]. You will notice the decree is different from what the judge has ordered because of the determination that additional income was in fact received in 1990 by your client. I ask that, based upon that finding and our discussions after the hearing, that you approve the journal entry. If there are any questions whatsoever, please get back to me.
“I will be out of town until February 4, 1991, and so there might be a delay in being able to reply to you.
“I hope that your client now has admitted to all income for 1990. I obviously reserve the right to ask for any and all appropriate relief in the event he has not now admitted to correct income.
“Very truly yours,
LAURENCE M. JARVIS, CHARTERED
/s/ Laurence M. Jarvis
By Laurence M. Jarvis.”
Later Jarvis commenced an action against Ms. Gerner to collect the $2,100 fee for securing the divorce. This action was settled for a reduced amount ($1,000).
The panel found:
“8. The ‘Contingency Fee Agreement’ (Exhibit B) is an agreement for attorney fees in a domestic relations matter, the payment or amount of which is contingent upon the amount of alimony [maintenance] secured in excess of One Hundred Dollars ($100.00) per month awarded'by the divorce court on January 23, 1991, which might be secured by Respondent for Complainant by motion.”
The panel then concluded the agreement was violative of MRPC 1.5(f)(1).
Jarvis filed exceptions to such determination. He testified that at the conclusion of the divorce trial, he and Ms. Gerner discussed the possible filing of a fraud action against Mr. Gerner - over concealment of his true income and that he suggested a contingent fee contract for proceeding with such an action. He contends he mailed the agreement to his client on January 25. Ms. Gerner testified Jarvis called her in March as to why she had made no payment's under the contingency fee contract. She testified she advised him she did not know what he was talking about. She denied receiving or agreeing to such a contract. On March 14, Jarvis sent her a copy signed by him. In April 1991, Jarvis telephoned Ms. Gerner and recorded the conversation. In the conversation, Jarvis attempted to convince Ms. Gerner that she had agreed to the contract. Jarvis contends the panel should have found the agreement related only to a fraud action and was not a contingency fee agreement involving securing an increase in maintenance.
The panel rejected Jarvis’ contentions with the following analysis:
“Much testimony, discussion and argument was involved in these proceedings supporting Respondent’s contention that he had not violated MRPC 1.5(f)(1) for he had only agreed to a contingency fee arrangement to represent Ms. Gerner in a post-divorce fraud action and that, as such, he was not seeking a contingent fee ‘. . . in a domestic relations matter . . .’ nor was lie' seeking a contingent fee predicated ‘. . . upon the amount of alimony, . . . ’. The difficulty with Respondent’s argument is the explicit language contained in Exhibit B, which was drafted by respondent, examples of which are:
‘Attorney agrees to subpoena such records and conduct such discovery and production of documents as are necessary to attempt to find additional sources of income. (Exhibit B, paragraph 4)
If hereafter there should be an increase in the maintenance, the parties agree that they shall split equally, fifty percent (50%) each, any such increase due to the finding that additional income did in fact exist with respondent. (Exhibit B, paragraph 5)
Furthermore, attorney shall file all appropriate motions and handle those motions and hearings at no charge to client. It is expressly agreed that, if no additional sums of maintenance are recovered, then there are no fees or repayment of expenses due to attorney. (Exhibit B, paragraph 6)
This agreement is as to additional maintenance only. It does not [affect] the attorney fees previously earned by attorney in performing services in the divorce case by the hour. Those fees are separate and apart from this agreement.’ (Exhibit B, paragraph 7)
“Exhibit B contains no reference to a ‘fraud’ action and, in fact, is silent as to any separate or collateral action and can only be construed as a ‘Contingency Fee Agreement’ to seek, by post-trial motions, an increase in the maintenance determined by the divorce court on January 23, 1991.
“This Board has considered the legal authorities submitted by Respondent and finds them unpersuasive. It is not for this Board to determine what the ‘policy’ should be regarding contingent fees for proceedings seeking an increase in maintenance. The policy issue has been resolved by the adoption of the language contained in MRPC 1.5(f)(1). This Board is of the firm opinion that the rule prohibits a contingent fee in any domestic relations matter and/or in any matter seeking child support or maintenance (temporary or permanent) whether pendente lite, at trial, or by post-trial motion for modification or increase.
‘‘The authorities cited by Respondent which approve of contingent fee arrangements for fraud actions are not rejected by this Board but are simply found to be inapplicable to the facts in this case as expressed by Exhibit B. The contingent fee agreement prepared by Respondent establishes on its face that it is a contingent fee agreement in a domestic relations matter, the payment or amount of which being contingent upon the increase in the amount of alimony which Respondent is able to obtain for the complainant.
“This is not a case of a contingent fee for the purpose of collecting a past due arrearage of maintenance previously ordered, and this Board expresses no opinion on the propriety of such an arrangement.”
We agree with the panel’s analysis of the nature and legal effect of the agreement. The instrument is clear and unambiguous. Like the panel, we are unpersuaded by Jarvis’ attempts to establish that the instrument is anything other than what it clearly states it is — a contingency fee agreement in a domestic relations matter with the fee being contingent upon the amount of an increase in maintenance (alimony) which Jarvis might obtain for Ms. Ger-ner. This is a clear violation of MRPC 1.5(f)(1). The panel’s findings in this regard are supported by clear and convincing evidence, and we adopt the same.
There are sound public policy reasons for the prohibition against contingent fees set forth in MRPC 1.5(f)(1). In Dannenberg v. Dannenberg, 151 Kan. 600, 100 P.2d 667 (1940), this court refused to enforce a contingency 'fee contract based upon the amount of alimony awarded ort the ground that such a contract was against public policy.
In Meyers v. Handlon, 479 N.E.2d 106 (Ind. App. 1985), enforcement was not permitted of a contingency fee contract on the amount of property to be awarded to the wife in a divorce action. The Indiana court gave the five reasons for its decision as follows:
“1) the public policy favoring marriage; 2) disapproval of giving attorneys a financial incentive to promote divorce; 3) the statutory availability of attorney fee awards making contingent fees unnecessary; 4) the potential for overreaching or undue influence in a highly emotional situation; and 5) a need for the court to make an informed distribution of property which includes the obligation of attorney fees.” 479 N.E.2d at 109.
These reasons are not exclusive. Additionally, a contingency fee contract based upon the amount of alimony awarded or property settlement results in a conflict of interest in the attorney. If his or her fee is tied to the amount of support allowed, self interest would encourage the attorney to seek a maximum maintenance award at the expense of other parts of the decree, including child support, division of property, debts, etc. The best interests of the client could well suffer or be perceived to suffer as a result thereof. We have adopted MRPC 1.5(f)(1), and it is based on sound public policy.
Jarvis takes further exception to the imposition of censure recommended by the panel. In support thereof, he argues such discipline is inappropriate as: (1) He has been engaged in the private practice of law for 23 years and this is the first formal complaint filed against him; (2) he cooperated fully in the investigation; (3) he sought guidance from the Disciplinary Administrator’s Office on this controversy; and (4) this is the first case alleging violation of MRPC 1.5(f)(1), and this opinion should only be a guide to attorneys for their future conduct.
We do not agree. The seeking of guidance from the Disciplinary Administrator’s Office occurred in the form of a letter dated May 15, 1991, to the Disciplinary Administrator. Ms. Gerner had at that time consulted with other counsel and been told that such a contract was improper and had so advised Jarvis. The agreement in question is a clear violation of MRPC 1.5(f)(1), not involving a departure from prior interpretations thereof.
Supreme Court Rule 203(a) (1993 Kan. Ct. R. Annot. 162) provides, in pertinent part:
“Misconduct shall be grounds for:
(3) Censure by the Supreme Court which may or may not be published in the Kansas Reports as ordered by the Court.”
Rule 203(a) in its present form makes no reference to “public” or “private” censure. The discipline in subsection (3) is censure. The order imposing censure shall be either published or unpublished as the court directs.
Prior to 1988, Rule 203(a)(3) provided for discipline by public censure. Orders imposing public censure were published. Orders imposing private censure were not published.
The usage of public or private censure, under our present rule, is rather misleading. Neither term appears in the rule and, additionally, such terms would seem to indicate a difference in the circumstances of the imposition of the censure itself (publicly as opposed to privately). We believe the terms “published censure” and “unpublished censure” are the more appropriate abbreviated terms to indicate whether the order imposing the discipline of censure is or is not to be published.
With this background, we conclude the hearing panel, in recommending public censure, is recommending that censure be imposed and that the court should direct the order imposing such discipline to be published. We agree with said recommendation and accept it.
It Is Therefore Ordered that Laurence M. Jarvis be censured for violation of MRPC 1.5(f)(1) of the rules of professional conduct.
It Is Further Ordered that the costs, of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiff, St. Francis Regional Medical Center, Inc., brought this action against the defendant, Marlon K. Weiss, M.D., to enforce their employment contract. Weiss appeals from the district court’s denial of his motion for summary judgment and from the entry of judgment against him based on the jury’s verdict on the main claim. St. Francis cross-appeals from the rulings of the district court which allowed Dr. Weiss’ counterclaim for unused vacation time and unpaid salary increase to be submitted to the jury and from the resulting judgment in his favor on the counterclaim. St. Francis also appeals the district court’s denial of an award of prejudgment interest. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
On July 14, 1989, a Physician Employment Agreement between Physicians Clinic of Kansas, P.A., (PCK) and Marlon Weiss, M.D., was signed. The contract expressly provided for assignment to St. Francis Medical Center, Inc., (St. Francis, although, where the contract is quoted, the hospital corporation is referred to as “the Medical Center”). The contract further provided that upon assignment, “the Medical Center hereby employs the Physician and the Physician accepts employment with the Medical Center, as an employee of the Medical Center and as a member of a physician division of the Medical Center, to render full-time medical services for the Medical Center.” The assignment occurred on August 7, 1989.
In late October or early November of 1989, concerns were raised with Dr. Weiss about the quality of his care of patients. At that time he was working in Wichita in the Southeast Health Care MOD, i.e., medical office division, of St. Francis. On November 10, 1989, a memorandum was prepared which documented St. Francis’ decision to transfer Dr. Weiss from Wichita to the Snyder Clinic in Winfield on or before January 1, 1990. The administrator for the physicians employed by St. Francis testified that Dr. Weiss’ skills did hot match “the pace” of the Wichita clinic, and the November 10 memorandum states that the transfer would allow him to be under the guidance of a certain doctor and further enhance his practice skills.
In the fall of 1990 and again in January 1991, Dr. Weiss Raveled to Fort Dodge, Iowa, and visited the Fort Dodge Medical Center. During that period, Dr. Weiss was working out the details of an employment contract with the Fort Dodge Medical Center.
On March 17, 1991, Dr. Weiss requested in writing “a performance review as detailed in Exhibit A, section 2.1 of my contract.” That paragraph provides in pertinent part:
“2.1 Annual Base Salary.
“Medical Center shall pay physician an annual base salary, the initial amount of which shall be $52,000. The annual base salary may be increased or decreased by Medical Center prospectively on a semi-annual basis effective as of January 1st and July 1st of each year, based on a regularly-conducted, performance review.”
Sometime during “the first part of April” 1991, the administrator of the Snyder Clinic met with each of its physicians, including Dr. Weiss. Dr. Weiss was offered an increase to $85,863 from $83,990, retroactive to January 1. Dr. Weiss considered the proposed increase to be “a slap in the face.” In a note, which is dated April 9, 1991, the administrator of the Snyder Clinic wrote to the administrator of St. Francis’ Physician Division that Dr. Weiss was seeking an increase to $4,030 “per pay period.”
On May 21, 1991, Dr. Weiss wrote to the executive director of St. Francis:
“I hereby give you notice of default as required under section 7.3-3 of my contract. You have breached your duty to perform a proper and timely performance review, in spite of my letter of March 17 specifically bringing this lapse to your attention.”
Section 7.3-3 provides:
“Termination On Notice of Default. In the event either party shall give written notice to the other that such other party has substantially and materially defaulted in the performance of any other obligation under this Agreement, and such default shall not have been cured within 60 days following the giving of such notice, the party giving such notice shall have the right to terminate this Agreement at any time thereafter upon 30 days written notice of such termination to the other party.”
In a letter dated May 31, 1991, the executive director responded that there was no default:
“It is my understanding that after receiving your letter of March 17, 1991 requesting a performance review, the review was conducted on April 9, 1991. If it is your position the review was not conducted, please let me know as our records would indicate the review was conducted in accordance with the Employment Agreement.”
On June 6, 1991, Dr. Weiss gave written notice to St. Francis of his resignation, which was to be effective July 10, 1991. He stated that his “letter of May 21, 1991, was your notice that 60 days had expired per paragraph 7.3-3.” He also asserted that the “ ‘attempt’ to conduct a review on or about April 9” was not in compliance with the terms of the contract and that the salary increase which he had been promised had not “been reflected” in his paycheck.
Section VII, Paragraph 7.1 of the employment agreement provided that it would be effective for an initial period of five years. Section VII, Paragraph 7.5 provided: “Liquidated Damages for Failure of Consideration. In the event of termination of this Agreement by Physician’s election, breach, or default, Physician shall pay to Medical Center the amounts set forth in Exhibit E.” Exhibit E is titled “Liquidated Damages.” It provides in part:
“In the event of a termination by Physician under the provisions of Section 7.5, Physician shall pay the following amounts, determined according to the date on which employment actually terminates, to the Medical Center:
1. If terminated during the first year of the Initial Term of this Agreement, an amount equal to $67,996.”
The amount to be paid if termination occurs during either the second or third years is $51,996, during either the fourth or fifth years is $25,998, and during any extension term is $1,000.
On July 12, 1991, St. Francis filed suit against Dr. Weiss, alleging that his July 10, 1991, termination breached the employment agreement which had been entered into on August 7, 1989. St. Francis sought actual damages, liquidated damages in the amount of $51,996, and prejudgment interest.
Dr. Weiss denied that he had breached the agreement and asserted the defense that the liquidated damages provision of the agreement is unenforceable under K.S.A. 1993 Supp. 17-2708 and Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 811 P.2d 860 (1991). In a counterclaim, Dr. Weiss alleged that St. Francis had breached the agreement by not paying certain benefits to him.
Dr. Weiss filed a motion for summary judgment on the ground that the contract was unenforceable. Two arguments were made why the contract was void: First, a general corporation cannot contract for the provision of medical services; and second, the agreement violates 42 U.S.C. § 1320a-7b(b) (1988 and Supp. Ill 1991), the “Medicare Anti-Kickback” statute. At the hearing on Dr. Weiss’ motion for summary judgment, his counsel withdrew that portion of the motion based on the federal anti-kickback provision. He conceded that St. Francis correctly stated that in certain circumstances the employee/employer relationship was exempted “from the applicability of those provisions and . . . my brief ... is not adequate to reduce that to a question of law. In other words, there are some questions of fact remaining. I think we’re gonna have to go to trial to resolve that.”
On the remaining ground, the district court reasoned that the rule from Early Detection Center did not apply to the agreement between Dr. Weiss and St. Francis because St. Francis is a nonprofit charitable corporation rather than a general corporation. The district court, therefore, concluded that the agreement was enforceable.
St. Francis filed a motion in limine requesting that “any evidence or reference with respect to [Dr. Weiss’] theory that the subject agreement violates the ‘Medicare Anti-Kickback’ statute be heard by the Court outside the presence of the jury.” Dr. Weiss’ counsel agreed “that shouldn’t be in the presence of the jury.” The district court granted St. Francis’ request.
St. Francis’ motion for directed verdict was denied by the district court on the grounds that Dr. Weiss was not required to elect between avoiding enforcement and enforcing the contract and that the damages allegedly sustained by Dr. Weiss could be set off against the liquidated damages.
The jurors completed a special verdict form. They agreed that St. Francis breached the contract by failing to conduct a performance review, but cured its breach on April 9, 1991. They further agreed that St. Francis breached the contract concerning unpaid vacation and unpaid salary and that as a result, Dr. Weiss incurred damages stipulated to be in the amounts of $8,269.23 and $969.23, respectively.
Judgment was entered in favor of St. Francis on its claim for liquidated damages in the amount of $51,996, which was set off by judgment in favor of Dr. Weiss in the amount of $9,238.46. Judgment, therefore, was entered on the jury verdict in favor of St. Francis in the net amount of $42,757.54. The district court denied St. Francis’ request for prejudgment interest on the liquidated damages at the rate of 10% per annum from July 10, 1991.
Dr. Weiss raises the following issues on appeal:
1. Did the district court err in denying Dr. Weiss’ motion for summary judgment, which was based on' the rule prohibiting the corporate practice of medicine?
2. Did compensation under the employment agreement between St. Francis and Dr. Weiss constitute an illegal “kickback” in violation of 42 U.S.C. § 1320a:7b(b)?
3. Did the district court err in excluding from evidence an unexecuted employment agreement form?
St. Francis raises the following issues in its cross-appeal:
1. Should the district court have required Dr. Weiss to elect between remedies?
2. Did Dr. Weiss’ repudiation of the employment agreement relieve St. Francis of the obligation to pay his unpaid vacation and unpaid salary?
3. Was there evidence to support Dr. Weiss’ counterclaim for unpaid vacation and unpaid salary? ' '
4. Should St. Francis have been awarded prejudgment interest on the amount of the liquidated damages?
We first consider if the district court erred in denying Dr. Weiss’ motion for summary judgment. He contends that this case never should have gone to trial because, as a matter of law, the agreement was invalid and unenforceable. Pertinent portions of the district court’s journal entry on Dr. Weiss’ motion for summary judgment state:
“Plaintiff St. Francis Regional Medical Center, Inc., filed this action to enforce its ‘Employment Agreement’ with the defendant. Defendant has moved for summary judgment, on the ground that the Employment Agreement is unlawful and therefore cannot be enforced. Defendant argues that the Agreement is unenforceable under the decision of the Kansas Supreme Court in the case of Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 811 P.2d 860 (1991).
“The Court finds that plaintiff St. Francis Regional Medical Center, Inc., is a non-profit charitable corporation. The Court further finds that plaintiff is licensed by the State of Kansas as a healthcare provider and as a medical care facility.
“The Court concludes that the case of Early Detection Center, Inc. v. Wilson is distinguishable and is not controlling here. The Court concludes that plaintiff St. Francis Regional Medical Center, Inc., is not a ‘general corporation’ as that term is used in the Early Detection Center case. The Court further concludes that plaintiff St. Francis Regional Medical Center, Inc., may lawfully enter into, and enforce, an employment contract with a physician. The Court therefore concludes that the Employment Agreement at issue in this case at bar is valid and enforceable.”
Dr. Weiss states as his basic premise that Kansas case and statutory law prohibit the practice of medicine by general corporations and that any agreement between a general corporation and a physician to perform medical services for third parties violates the prohibition. He relies on Early Detection Center, 248 Kan. 869, Syl. ¶ 4: “A general corporation is prohibited from providing medical services or acting through licensed practitioners; therefore, there can be no contract between the general corporation and third parties to perform medical services.”
In Early Detection Center, Dr. Wilson and a colleague formed a partnership, which they later incorporated as a professional corporation and then converted to a general corporation. The corporation’s business was providing vascular testing medical services. Dr. Wilson resigned and formed a competing business. Early Detection Center sued Dr. Wilson, alleging that he had breached his contract not to compete. 248 Kan. at 870-71. The district court granted Dr. Wilson’s motion for summary judgment on the ground that the corporation could not lawfully provide medical services. This court affirmed.
Early Detection Center argued that “a general corporation can lawfully provide medical services by employing licensed physicians.” 248 Kan. at 872. Based upon its reading of provisions of the Kansas Healing Arts Act, K.S.A. 65-2801 et seq.; the Professional Corporation Law of Kansas, K.S.A. 17-2706 et seq.; the General Corporation Code, K.S.A. 17-6001 et seq.; the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq.; State ex. rel. Fatzer v. Zale Jewelry Co., 179 Kan. 628, 298 P.2d 283 (1956); State ex rel. Beck v. Goldman Jewelry Co., 142 Kan. 881, 51 P.2d 995 (1935); and Winslow v. Board of Dental Examiners, 115 Kan. 450, 233 Pac. 308 (1924), this court rejected the argument. 248 Kan. at 872-77.
This court’s basic rationale in refusing to enforce the agreement between Early Detection Center and Dr. Wilson was as follows: In Kansas, the practice of medicine requires a license. An examination must be taken in order to obtain a license. Because only individuals can take examinations, only individuals can be licensed to practice medicine. The Zale, Goldman, and Winslow cases, decided in 1956, 1935, and 1924, respectively, equated a corporation’s employing a licensed professional individual who practiced dentistry or optometry with a corporation’s practicing that profession. When the legislature subsequently enacted the Healing Arts Act, the Professional Corporation Law, and the General Corporation Code, it had the opportunity to include provisions which would have changed the judicial interpretation, but it did not do so. Thus, the rule that a general corporation is prohibited from providing medical services or acting through licensed practitioners still applies.'
The court ended its discussion of the corporation laws and the question whether they departed from the judicial interpretation of the dentistry and optometry cases with the following conclusion: “The legislative enactment of K.S.A. 1989 Supp. 17-2708 does not authorize the practice of medicine by a general corporation or allow a general corporation to provide professional services under the supervision of a licensed practitioner.” 248 Kan. 869, Syl. ¶ 3. K.S.A. 1989 Supp. 17-2708 provided:
“Except as otherwise provided, the Kansas general corporation code contained in K.S.A. 17-6001 et seq. and amendments thereto shall apply to a professional corporation organized pursuant to this chapter. Any provisions of the professional corporation law of Kansas shall take precedence over any provision of the Kansas general corporation code which conflicts with it. The provisions of the professional corporation law of Kansas shall take precedence over any law which prohibits a corporation from rendering any type of professional service. Any person or organization as defined in K.S.A. 17-2707 and amendments thereto which is authorized to form a professional corporation also may incorporate under the Kansas general corporation code contained in K.S.A. 17-6001 et seg.and amendments thereto.”
We paraphrased that portion of 17-2708 which provides for the professional code to prevail over the general one. 248 Kan. at 876. The court then stated that “[t]he legislature intended that any professional corporation, engaged in the practice of healing arts, which converts to a general corporation be prohibited from engaging in the practice of any branch of the healing arts.” 248 Kan. at 876. Support for the conclusion was found in a general corporation’s not being included in the Health Care Provider Insurance Availability Act’s definition of health care providers, K.S.A. 40-3401(f). Additional support was found in the legisla ture’s amending the technical professions (architecture, surveying, engineering) licensing statutes to authorize practice of the technical professions by a general corporation, K.S.A. 74-7036(c), and not including a similar provision in the Kansas Healing Arts Act. 248 Kan. at 876-77.
In the present case, Dr. Weiss contends that the district court’s distinguishing St. Francis from the Early Detection Center as a nonprofit corporation is unsound. He argues that the term “general corporation” includes both stock corporations and membership (nonprofit) corporations and that both are governed by the General Corporation Code. He also argues that there are compelling public policy considerations beneath the prohibition of corporations practicing medicine which pertain no matter which type of general corporation is involved. Those considerations may be summarized as follows: (1) Corporate judgment may be substituted for medical judgment; (2) corporations are not subject to standards of ethics; and (3) an independent judgment on the part of the physician is necessary in order to serve as a patient advocate with the competing institution. Dr. Weiss selected these considerations from a list of “Consequences of Eliminating the Corporate Practice Rule,” which appeared in the Iowa Medical Society Position Paper opposing changes in that state’s existing law.
It is Dr. Weiss’ position that his contract with St. Francis, which tied his compensation to marketing and volume of patients and cost-effective use of St. Francis’ resources, demonstrates why the public policy considerations are equally applicable to a nonprofit corporation.
St. Francis, on the other hand, contends that neither Kansas case law nor statutory law prohibits the practice of medicine by general corporations. St. Francis states that “[n]o Kansas statute prohibits a licensed hospital from employing physicians” and “[n]o Kansas case has ever held that a hospital or non-profit corporation, such as St. Francis, may not employ the services of physicians.” With regard to statutory law, the rationale of Early Detection Center does not conflict with St. Francis’ contention. The prohibition of the corporate practice of medicine was based on a judicial interpretation, which had not been expressly overturned by legislation, rather than on any statutory provision(s). With regard to case law, Early Detection Center involved neither a hospital nor a nonprofit corporation, and, according to St. Francis, its application should not be extended to either.
Referring to this court’s observation that the definition of health care provider in the Healing Arts Act did not include a general corporation, St. Francis points out that “a medical care facility licensed by the department of health and environment” and “a Kansas not-for-profit corporation organized for the purpose of rendering professional services by persons who are health care providers” are statutorily defined as health care providers. K.S.A. 40-3401(f). St. Francis, unlike Early Detection Center, fits into both these categories as well as into that of a general corporation. St. Francis argues, therefore, that it is statutorily permitted to provide medical services through licensed practitioners.
It would not necessarily seem to follow from St. Francis’ being included in the K.S.A. 40-3401(f) definition of a health care provider that St. Francis is statutorily authorized to practice medicine through licensed practitioners. That definition of health care provider is for use in the Health Care Provider Insurance Availability Act, and it is not the exclusive statutory definition of health care provider. For instance, K.S.A. 65-468(a), which defines health care provider for the rural health network statutory scheme, differs substantially from 40-3401(f). The defining of some subspecies of general corporations as health care providers in 40-3401(f), however, does tend to support St. Francis’ argument that Early Detection Center should not be extended beyond its facts.
St. Francis also offers as a reason for not extending the holding of Early Detection Center to the present case that the public policy considerations raised by Dr. Weiss do not apply to a nonprofit hospital. St. Francis states: “Its purpose is to make health care available to the community. It does not produce profits for shareholders, and is not operated or managed for profit. Net revenues, if any, are used solely to sustain operations and to further St. Francis’s charitable mission.” St. Francis quotes cases from other jurisdictions for the proposition that “many courts” have created an exception for nonprofit corporations to the general prohibition of the corporate practice of medicine. The California Supreme Court stated in 1938: “[S]ince the principal evils attendant upon corporate practice of medicine spring from the conflict between the professional standards and obligations of the doctors and the profit motive of the corporation employer, it may well be concluded that the objections of policy do not apply to nonprofit institutions.” People v. Pacific Health Corp., 12 Cal. 2d 156, 160, 82 P.2d 429 (1938), cert. denied 306 U.S. 633 (1939). The New York Municipal Court stated in the same year: “The general rule that a corporation may not practice medicine has its exception in charitable hospital corporations which are organized for that express purpose and are sanctioned by law to treat the sick and injured.” Goldwater v. Citizens Casualty Co. of New York, 7 N.Y.S.2d 242, 247-48 (1938), aff'd 36 N.Y.S.2d 413 (1939).
St. Francis also cites Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, reh. denied 187 Kan. 186, 354 P.2d 670 (1960), and Nicholson v. Hospital Association, 97 Kan. 480, 155 Pac. 920 (1916). In Natanson, plaintiff alleged injuries due to her exposure to an excessive amount of radiation during treatment with radioactive cobalt. St. Francis was a defendant along with Dr. Kline. The court stated:
“There is no issue presented by the record as to the relationship between Dr. Kline and the St. Francis Hospital. The petition pleaded that the defendants were engaged in a joint adventure or in the alternative that the defendant physician was acting within the scope of his employment as agent, servant and employee of the defendant hospital. The answer of the defendant hospital admitted that the defendant physician ‘was in charge of its radiology department.’ ” 186 Kan. at 397-98.
Darter, a physicist who was on staff with the hospital, calculated the radiation dosage. This court concluded that it was reversible error for the district court to refuse to give the following instruction, which had been requested by Natanson:
“ ‘You are instructed that under the terms of the contract between defendant Kline and defendant Hospital it was the duty of defendant Kline to supervise the work of all the personnel in the radiology department. If you find that plaintiff s injury was the result of the negligence of personnel in the department your verdict shall be in favor of plaintiff and against both defendants.’ ” 186 Kan. at 411.
The court quoted the following principles with regard to Kline and the hospital being chargeable with Darter’s negligence:
" ‘A physician is responsible for an injury done to a patient through the want of proper skill and care in his assistant, and through the want of proper skill and care in his apprentice, agent, or employee. The fact that a physician’s assistant is a member of the same or a similar profession does not make tire rule of respondeat superior inapplicable, and a physician is liable not only for negligence of laymen employed by him, but also for the negligence of nurses or other physicians in his employ.
“ ‘Corporations, or persons other than physicians, who treat patients for hire with the expectation of profit are liable for negligence or malpractice on the part of the physicians or nurses employed by them.’ (70 C.J.S., Physicians and Surgeons, § 54e, pp. 978, 979, and see cases cited therein.)” 186 Kan. at 411-12.
St. Francis suggests that if it were unlawful for a hospital to employ a physician, the court would not have quoted this passage from Corpus Juris Secundum,
An amicus curiae brief filed by VHA Mid America, Inc., (VHA) an organization of nonprofit hospitals, urges this court to accept the distinction drawn by the district court between the corporate practice of medicine by profit and nonprofit health care providers. VHA quotes the following paragraph from 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers § 155, p. 287, in support of its position:
“Although an unlicensed person or entity may not ordinarily engage indirectly in the practice of a healing art by employing a licensed practitioner to perform professional services for those for whom such person or entity engages to perform such services, one licensed practitioner may employ another for the performance of professional services. And a physician may be employed on a salary basis in an employer’s employees’ clinic or by a nonprofit corporation organized as a health and medical service.” (Emphasis added.)
The treatise cites as authority for the emphasized portion the 1938 California case, People v. Pacific Health Corp., 12 Cal. 2d 156. See 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers § 155, p. 287 n.31.
The authorities cited by VHA are not limited to those involving nonprofit corporations. For instance, VHA brings to the court’s attention Article 4 of Chapter 65 of the Kansas Statutes Annotated, K.S.A. 65-406 through K.S.A. 65-474. It deals with hospitals and other facilities in the context of public health. K.S.A. 65-442(b) provides:
“There shall be no liability on the part of and no action for damages shall arise against any licensed medical care facility because of the rendering of or failure to render professional services within such medical care facility by a person licensed to practice medicine and surgery if such person is not an employee or agent of such medical care facility.” (Emphasis added.)
VHA would have this court infer from the statute that the legislature has sanctioned hospitals’ employing physicians. VHA argues that if this were not true, the emphasized words would be surplusage, and “[a] construction which renders part of a legislative act surplusage is to be avoided if reasonably possible.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
In State ex inf. v. Lewin, 128 Mo. App. 149, 106 S.W. 581 (1907), the Missouri court considered an attempt to rescind the corporate status of Lewin Hernia Cure Company for engaging in the practice of medicine without a license. The court decided that rather than the corporation’s engaging in the practice of medicine, it was in the business of contracting for the practice of medicine. In reaching this conclusion, the court reasoned:
“In all the larger cities, and connected with most of the medical colleges in the country, hospitals are maintained by private corporations, incorporated for the purpose of furnishing medical and surgical treatment to the sick and wounded. These corporations do not practice medicine but they receive patients and employ physicians and surgeons to give them treatment. No one has ever charged that these corporations were practicing medicine. The respondents are chartered to do, in the main, what these hospitals are doing every day, that is, contracting with persons for medical treatment and contracting with physicians to furnish treatment . . .” 128 Mo. App. at 155-56.
In other words, the corporation had the right to practice medicine through its licensed employee, Dr. Lewin.
In Tarry v. Johnston, 114 Neb. 496, 208 N.W. 615 (1926), the heirs of Dr. Tarry sued to enforce a contract between them and Dr. Johnston for the sale of Dr. Tarry’s business and property. In concluding that the contract was enforceable in equity, the court considered the purchase price:
“The purchase price was not merely $40,000. In addition, plaintiffs were entitled to 10 percent of the net profits for five years from the date of the sale. This was not unreasonable in view of the earning capacity of the sanitarium with its established business, advertising and good will. The owners of hospitals and sanitariums may legally employ physicians and surgeons to perform professional services therein. Both before and after the death of Tarry, Johnston had managed, or assisted in managing, the business for a percentage of the profits. . . . There was no attempt to take Johnston’s professional life as security for the purchase price, a charge made by de fendants in an earnest argument. The parties to the contract agreed that plaintiffs should retain title while obligations of Johnston remained unperformed. The agreement was reasonable and was one which could lawfully be made.” 114 Neb. at 501.
VHA cites Rush v. City of St. Petersburg, 205 So. 2d 11 (Fla. Dist. App. 1967), and Albany Med. Coll. v. McShane, 104 App. Div. 2d 119, 481 N.Y.S.2d 917 (1984), as cases depending on interpretation of state statutes. The New York Supreme Court in McShane determined that pursuant to statutes governing clinical programs in medical schools, a state-chartered medical school may share in the fees from patient care generated by physicians who are faculty members, and the medical and financial records pertaining to such patients belong to the school. In so holding, the court said:
“As far back as the year 1908, the Court of Appeals held the statutory prohibitions against the practice of medicine without lawful registration, or by any person not a registered physician, were not intended to apply and could not reasonably be held to apply to hospitals, dispensaries and similar corporate institutions, which by the express provisions of other statutes and their corporate charters were authorized to carry on the practice of medicine (People v. Woodbury Dermatological Inst., 192 N.Y. 454, 457).” 104 App. Div. 2d at 121.
The Florida case presents circumstances more closely analogous to those in the present case. Dr. Rush sought to represent a class of radiologists in challenging the validity of a contract between Dr. Price, a radiologist, and the city, which owned and operated a hospital, relative to the providing of radiological services at the hospital. Dr. Rush alleged that “the hospital was engaged in the illegal corporate practice of medicine.’ ” 205 So. 2d at 12. In the opinion of the Florida District Court of Appeal, the allegation was groundless because the physician-patient relationship had not been interrupted by the employment arrangement. The court reasoned:
“Did performance of the contract result in unauthorized practice of medicine by the hospital or the City?
“There is no law precisely on point. However, both the plaintiff, Dr. Rush, and defendant, Dr. Price, cite two related opinions of the Attorney General (1955 Op.Atty.Gen., 055-71 and 1956 Op.Atty.Gen., 056-322). While neither of these possibly conflicting opinions is controlling upon this court, we feel the better reasoned view is found in 056-322, where, in discussing a similar arrangement for radiology services in a County hospital, it was stated: ‘. . . the department of radiology is an incident to the proper operation of the hospital . . .’ and further: ‘it also appears that the relationship of patient and physician is maintained by the medical staff of the department. . . .’ The crux of the matter then is whether the relationship between Dr. Price and the patients of Mound Park Hospital has been so destroyed as to allow the hospital to become the medical practitioner.
“In Watson v. Centro Español De Tampa, 1947, 158 Fla. 796, 30 So. 2d 288, a case involving alleged unauthorized practice of medicine by an intern in a hospital, we find the following:
‘The test of whether or not one is practicing medicine within the meaning of Section 458.13, is whether or not he holds himself out as being able to “diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition or who shall offer or undertake by any means or method to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.’ ”
“Although Watson v. Centro Español De Tampa concerned an individual rather than a corporate entity, there is no reason to deviate from the salutary rule laid down. Applying this ‘test’ it is plain that Mound Park Hospital was not engaged in the unauthorized practice of medicine.” 205 So. 2d at 14.
The court concluded:
“In the absence of proof, or even allegation, that no physician-patient relationship existed between Dr. Price and the individuals treated by him, we are impelled to conclude that the contested contract is of a purely fiscal nature. However, it may also be said that the economic arrangement facilitates the discharge of the duties of the respective parties, i.e., the obligation of the City to the citizens of St. Petersburg and the obligation of Dr. Price to relieve suffering.” 205 So. 2d at 15.
The Iowa Medical Society states that the purpose of the ban on corporate medicine is to protect the physician/patient relationship from interference by a “corporation owned and managed by lay persons. The goal of any such corporation — to make profits for its investors/shareholders — may conflict with the physician’s medical judgment regarding the best interests of the patient.” What is not explained is how the exception for certain specialties may be reconciled with the stated purpose for the ban. It may be noted that the Iowa Medical Society opposes any changes in existing law, which includes the exception for hospitals employing pathologists and radiologists. In this regard, VHA advocates that a prohibition on hospital employment of physicians may adversely affect the availability of emergency and specialty services.
With regard to public policy, VHA argues that under the Kansas Hospital Licensing statutes, K.S.A. 65-425 et seq., the Kansas Department of Health and Environment is charged with ensuring that hospitals provide quality medical care. VHA argues that the regulatory scheme eliminates the concerns which the corporate practice of medicine prohibition was devised to quell. VHA would have this court conclude, therefore, that the rule is no longer necessary.
There is some precedent in this court’s opinions for relying on a regulatory agency to ensure a regulated entity’s compliance with its public purposes. In Board of Johnson County Comm’rs v. Ev. Luth. Good Samaritan Soc., 236 Kan. 617, 694 P.2d 455 (1985), the court concluded that a building of apartments which were rented to elderly and handicapped persons was entitled to exemption from ad valorem taxation under K.S.A. 79-201b Fourth. The court stated:
“The legislature in enacting K.S.A. 79-20lb Fourth obviously relied upon federal regulations to assure the goals and public purposes of the program designed to provide adequate housing for low income elderly and handicapped persons have been and continue to be met. The presence of the four elderly residents in Olathe Towers not receiving rent subsidies is a matter between applicant, as operator of the facility, and HUD.” 236 Kan. at 624-25.
The introduction to the brief of amicus curiae Kansas Hospital Association (KHA) is a particularly well-formulated position statement and merits being quoted:
“In 1924, this Court first enunciated the so-called prohibition on the corporate practice of a profession. Whatever its merits in other contexts, no case has ever suggested that it prohibited hospitals from employing physicians to provide patient care. Hospitals employed physicians at the time of that decision and have continued to do so in the intervening decades. The arguments being advanced by Dr. Weiss, if adopted by this Court, would be disruptive to the provision of health care and to legitimate relationships between Kansas hospitals and physicians.”
In support of its assertion that hospitals employed physicians at the time of the Winslow v. Board of Dental Examiners, 115 Kan. 450, decision, KHA calls the court’s attention to Nicholson v. Hospital Association, 97 Kan. 480, Syl. ¶ 1, where it was stated: “Charitable associations conducting hospitals are not liable for the negligence of their physicians and attendants resulting in injury to patients unless it is shown that the association maintaining the hospital has not exercised reasonable care in the employment of its physicians and attendants.” In this regard, we note that in the recent case of McVay v. Rich, 18 Kan. App. 2d 746, Syl. ¶ 1, 859 P.2d 399 (1993), the Court of Appeals held:
“Under the provisions of K.S.A. 65-442(b) and K.S.A. 1992 Supp. 40-3403(h), a licensed hospital cannot be held liable for damages because of the rendering of or failure to render professional services within the hospital by a physician who is licensed to practice medicine and surgery and covered under the Health Care Stabilization Fund, if the physician is not an employee or agent of the hospital." (Emphasis added.)
In addition to the Kansas statutes cited by other advocates as support for the proposition that the legislature recognizes and permits employment relationships to exist between physicians and hospitals, KHA cites statutes providing for hospital liens, staff recruitment, and expansion of the definition of “hospital.” K.S.A. 65-406 states in pertinent part:
“Every hospital in the state of Kansas, which shall furnish emergency, medical or other service to any patient injured by reason of an accident ... shall, if such injured party shall assert or maintain a claim against another for damages on account of such injuries, have a lien not to exceed five thousand dollars ($5,000) upon that . . . recovery . . . .”
As one commentator has stated:
“In public and community hospitals we believe there is no danger of lay interference with the professional aspects of medical practice, in tire sense of interference in the diagnosis of a patient’s ailment, in the decision upon a course of treatment, or in the carrying out of that decision. . . .
“. . . The raison d’etre of these hospitals is service to the patient; they were built by the public for that very purpose; their management either is public or is volunteered by civic-minded persons; they stand at the center of our whole system of medical care for the people of the Nation. Division of loyalty is not threatened, whatever the arrangements with the physician, for the loyalty of both parties is to the patient. Lay interposition in the doctor-patient relationship would be as repugnant to hospital management as it would be to the profession.” Willcox, Hospitals and the Corporate Practice of Medicine, 45 Cornell L.Q. 432, 445-46 (1960).
K.S.A. 65-427 requires Kansas hospitals to be licensed by the Department of Health and Environment. The 65-427 requirement applies to medical care facilities, which are defined in K.S.A. 1993 Supp. 65-425(h) as “a hospital, ambulatory surgical center or recuperation center.”
A hospital is defined in K.S.A. 1993 Supp. 65-425:
“(a) ‘General hospital’ means an establishment with an organized medical staff of physicians; with permanent facilities that include inpatient beds; and with medical services, including physician services, and -continuous registered professional nursing services for not less than 24 hours of every day, to provide diagnosis and treatment for patients who have a variety of medical conditions.
“(b) ‘Special hospital’ means an establishment with an organized medical staff of physicians; with permanent facilities that include inpatient beds; and with medical services, including physician services, and continuous registered professional nursing services for not less than 24 hours of every day, to provide diagnosis and treatment for patients who have specified medical conditions.” (Emphasis added.)
K.S.A. 65-431(a) provides:
“The licensing agency shall adopt, amend, promulgate and enforce such rules and regulations and standards with respect to the different types of medical care facilities to be licensed hereunder as may be designed to further the accomplishment of the purposes of this law in promoting safe and adequate treatment of individuals in medical care facilities in the interest of public health, safety and welfare.”
By definition, to be licensed in Kansas, a hospital must provide “physician services,” “provide diagnosis and treatment for patents who have a variety of medical conditions,” or who have “specified medical conditions.” This is true for hospitals organized for profit or not for profit. It would be incongruous to conclude that the legislature intended a hospital to accomplish what it is licensed to do without utilizing physicians as independent contractors or employees.
As previously indicated, the legislature by statute and this court by decision have acknowledged what is and has been a reality for decades — hospitals employ physicians. Without physicians, nurses, and medical technicians, a hospital cannot achieve that for which it is created and licensed — to treat the sick and injured. To conclude that a hospital must do so without employing physicians is not only illogical but ignores reality.
As previously noted, in Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 811 P.2d 860 (1991), we relied upon the cases of Winslow, Goldman, and Zale. The basic rationale for those decisions was that to permit a corporation to practice a licensed profession would be injurious to the public welfare. Such a pro hibition was necessary to protect the public health. In Winslow, we said:
“Dentistry is a profession having to do with public health, and so is subject to regulation by the state: The purpose of regulation is to protect the public from ignorance, unskillfulness, unscrupulousness, deception, and fraud. To that end the state requires that the relation of the dental practitioner to his patients and patrons must be personal.” 115 Kan. at 451-52.
In Goldman, we said:
“It is our judgment that under our statutes, the legislature, having in mind the protection of eyesight is just as important as the protection of property rights and advice thereon, as the protection of the teeth, as the protection against improper and unauthorized methods of healing, by the enactment of the statutes with reference to optometry recognized it as a profession and accordingly regulated it.” 142 Kan. at 890.
None of these early cases dealt with a hospital’s employing a physician nor prohibited such employment. None of these cases dealt with a corporation in the business of providing health care to the general public. We agree that Early Detection Center should not be extended beyond its facts and is distinguishable from the present case. Here, the corporation employing the physician is a hospital licensed by the State of Kansas as a medical care facility and a health care provider. This difference is crucial to our determination and it distinguishes a hospital from a “diagnostic clinic,” which was involved in Early Detection Center.
In light of the above, we conclude that neither Kansas case law nor statutory law prohibits a licensed hospital from contracting for the services of a physician. Such contracts are not contrary to the interest of public health, safety, and welfare and, therefore, are legally enforceable. We find no valid reason to distinguish between profit and nonprofit hospitals in this regard. The judgment of the district court, although based on this erroneous distinction, nevertheless reached the correct result. In such a case, the district court’s decision will be upheld. Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 829 P.2d 578 (1992).
Dr. Weiss next contends that the compensation under the employment agreement constitutes an illegal “kickback” in violation of 42 U.S.C. § 1320a-7b(b) (1988 and Supp. III 1991). 42 U.S.C. § 1320a-7b establishes criminal penalties for certain conduct involving Medicare. It often is referred to as the Medicare anti- kickback provision. St. Francis argues that the court should not consider this issue because it was not raised in the district court. This court has stated many times: “It is a well recognized concept of appellate procedure that a point not raised before the trial court may not be raised for the first time on appeal.” Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984). In the present case, the issue was raised but not decided, unless by default, in the district court.
It was the second ground upon which Dr. Weiss moved for summary judgment. At the hearing on his motion, however, counsel withdrew the issue from consideration, stating that questions of fact remained with regard to whether the Weiss/St. Francis relationship was an employee/employer relationship which was exempted from 42 U.S.C. § 1320a-7b(b). Dr. Weiss’ counsel stated that the evidence would need to be developed at trial. In a motion in limine, St. Fi'ancis requested that any evidence related to Dr. Weiss’ theory of anti-kickback violation be heard outside the presence of the jury. Dr. Weiss’ counsel agreed that would be the proper procedure. The district court granted St. Francis’ request.
On appeal, Dr. Weiss concluded the statement of facts in his brief with the following: “Notwithstanding the establishment of these facts at trial, the court refused to grant Weiss’ renewed motions for summary judgment.” He gives no citation to the record. St. Francis states: “[Cjontfary to Weiss’s assertion . . . , he never ‘renewed’ any portion of his motion for summary judgment.” St. Francis further asserts that Dr.,Weiss failed to present any evidence relevant to his kickback theory and “never asked the district court to rule that St. Francis’s agreement with Weiss violated the Social Security anti-kickback statute or regulations.” Dr. Weiss did not file a reply brief on the main appeal (his second brief is addressed exclusively to the issues on the cross-appeal), and St. Francis’ assertions have gone unanswered. Thus, as far as this court has been informed, Dr. Weiss technically raised the issue, but by his subsequent conduct he removed it from the district court’s consideration. The issue, therefore, has not been raised so as to comply with the requirement for consideration on appeal. Moreover, if resolution of the issue by the district court required development of facts which never became the subject of evidence, it would follow that this court’s consideration of the issue will be hampered by the same deficiency.
Dr. Weiss next contends that the district court erred in excluding from evidence an unexecuted employment agreement form. This court has made the following statement of the standard of review: “Rulings on admissibility of evidence fall within the sound discretion of the trial court. Thus, one attacking evidentiary rulings must show abuse of discretion. An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court.” Enlow v. Sears, Roebuck & Co., 249 Kan. 732, Syl. ¶ 9, 822 P.2d 617 (1991).
Dr. Weiss complains of the district court’s refusal to admit into evidence “a new agreement,” which he asserts was submitted to him by St. Francis in 1990. The document, which was marked as Defendant’s Exhibit K, does not seem to be a part of the record. In his brief, Dr. Weiss asserts that the “new agreement” “omitted the liquidated damages provisions,” but he does not refer to anything in the record which substantiates his assertion.
At trial during Dr. Weiss’ testimony, counsel for St. Francis objected to questions about the “new agreement.” The district court sustained the objection and suggested to Dr. Weiss’ counsel: “You need to lay a foundation if it was executed. It wasn’t executed, I’m going to continue to sustain the objection.” Dr. Weiss’ counsel responded that he would make a proffer, and he did.
St. Francis argues that the matter is not properly before the court due to Dr. Weiss’ failure to make a written proffer. The real problem, however, is simply that the document is not a part of the record on appeal. Dr. Weiss would have this court base a reversal of St. Francis’ recovery of liquidated damages on his assertion that there was no liquidated damages provision in the “new agreement.” Moreover, he would have this court conclude that the “new agreement” was relevant and, therefore, erroneously excluded because it modified the employment agreement, even though the “new agreement” was never executed by the parties. Dr. Weiss has not furnished this court with a sufficient record necessary for the ruling he seeks.
We now turn to St. Francis’ cross-appeal. St. Francis first complains that Dr. Weiss should not have been permitted to take inconsistent positions with respect to the enforceability of the employment agreement. St. Francis argues that Dr. Weiss should not have been permitted to defend against its claim for liquidated damages under the agreement on the ground that it was unenforceable and also to counterclaim for unpaid vacation and salary under the agreement. The district court action of which St. Francis complains is its permitting Dr. Weiss to pursue his counterclaim. St. Francis raised the issue in ' its motion for directed verdict.
St. Francis bases its argument on the doctrine of election of remedies. St. Francis cites cases from the 1940’s for general propositions concerning election and inconsistent positions. Its citation of several more recent cases indicates that the hospital is not unaware of modification of the doctrine since Kansas’ adoption of the code of civil procedure in 1963.
K.S.A. 1993 Supp. 60-208(e)(2) states in pertinent part: “A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds or on both.” In accordance with this rule of pleading, Dr. Weiss answered St. Francis’ petition by asserting the unenforceability of the agreement “pursuant to K.S.A. [1993 Supp.] 17-2708 and upon authority of the Kansas Supreme Court as articulated in Early Detection Center, Inc. v. Wilson” and counterclaiming for benefits lost due to the hospital’s breach of the agreement.
In December 1991, the district court denied Dr. Weiss’ motion for summary judgment and stated in its journal entry “that the Employment Agreement at issue in this case at bar is valid and enforceable.” When the matter was tried to a jury in August 1992, therefore, it was long since settled that for purposes of the proceeding, the agreement was enforceable as a matter of law. Unenforceability of the agreement was no longer an alternative theory available to Dr. Weiss. In these circumstances, the doctrine of election of remedies, even in its current vestigial form, would have no application. We find no merit in St. Francis’ argument.
We next consider if Dr. Weiss’ repudiation of the employment agreement relieves St. Francis of the obligation to pay his unpaid vacation and unpaid salary. St. Francis contends that the district court should not have submitted Dr. Weiss’ counterclaim to the jury because, as a matter of law, his repudiation of the contract “relieved St. Francis of any obligation to perform.” Dr. Weiss responds that St. Francis’ obligation to pay compensation earned by him before he terminated employment was unaffected.
St. Francis relies on In re Estate of Moe, 240 Kan. 242, Syl. ¶ 1, 729 P.2d 447 (1986), which states: “General contract law provides that once performance has begun and prevention of further performance takes place by repudiation or otherwise, there is an actual breach and further performance is excused.” St. Francis would have the court equate “further performance,” as used in this syllabus paragraph, with the unpaid vacation and unpaid salary which Dr. Weiss claimed had accrued to him before he terminated his employment with the hospital.
Ida Turner worked as Moe’s housekeeper for years on the strength of his promise to leave property to her. When Moe died intestate, Turner filed a claim against his estate. 240 Kan. at 243-44. Because Turner had performed under the contract, she was entitled to what had been promised to her. 240 Kan. at 248. The question in the case was whether the statute of limitations for a claim under an oral contract had ran before Turner made her claim against his estate. Moe’s son, administrator of the estate, contended that the limitations period began to run in 1980 when Moe sold some of the property which had been promised to Turner. 240 Kan. at 245. The court concluded that the limitations period did not begin to ran until Moe’s death in 1983, the completion of the contract. 240 Kan. at 248. The court stated that its holding in Moe represented an exception to the general rule which it had stated in Syl. ¶ 1, the rale invoked by St. Francis. 240 Kan. at 245.
In the circumstances of Moe, the repudiation was Moe’s selling some of the promised property. Under the general rule, Turner would have been excused from continuing to perform her housekeeping services for Moe when he sold the property. Accordingly, the time in which she could have sued for breach would have commenced running immediately. Under the exception, Turner could continue performing her housekeeping services for Moe until he died and then claim what had been promised to her.
Pursuant to the rule, St. Francis exercised its option to treat the contract as breached, and it sued Dr. Weiss to enforce the liquidated damages provision. What St. Francis is arguing, though, is that Dr. Weiss’ termination gave it the additional right to withhold compensation which had accrued to him before the termination. The hospital has cited no authority for its contention.
Along with its repudiation argument, St. Francis presents what seems to be a completely separate theory why Dr. Weiss’ counterclaim should not have been submitted to the jury. The hospital contends that the contract provision for 180-day notice before termination was a condition precedent to his receiving any benefits upon termination. St. Francis cites Sweet v. Stormont-Vail Regional Medical Center, 231 Kan. 604, 647 P.2d 1274 (1982).
Theresa Sweet terminated her employment with Stormont-Vail without giving any prior notice. It was undisputed that the employee handbook was considered a part of the employment contract. The handbook provided: “ ‘Any unused accumulated vacation that does not exceed 17a times an employee’s annual vacation benefit will be paid to an employee who resigns and gives the proper notice.’ (Emphasis added.)” 231 Kan. at 606. Stormont-Vail paid her for her work to the date of termination but refused to pay for accumulated vacation time. This court upheld the hospital’s action.
In the present case, St. Francis has not brought to the court’s attention any provision of the employment contract which is comparable to the one in Sweet which made receiving accumulated vacation benefits dependent on proper notice of termination. Sweet is not authority for making receiving accrued vacation pay dependent on giving proper notice in the absence of some express contractual link between the two.
Next, we consider if there was evidence to support Dr. Weiss’ counterclaim for unpaid vacation and unpaid salary. The journal entry of judgment on jury verdict indicates that the parties stipulated to the amounts, but not the validity, of Dr. Weiss’ claims for unpaid vacation and unpaid salary. They stipulated that the vacation amount was $8,269.23 and that the salary amount was $969.23. Judgment was entered in favor of Dr. Weiss, as a setoff, in the amount of $9,238.46.
St. Francis first contends that there was no evidence to support Dr. Weiss’ claim for unpaid vacation. St. Francis states that the contract contains no provision for the accrual or accumulation of vacation pay. The agreement contains only the following reference to vacation: “Physician is entitled to four weeks paid vacation per year.”
It is St. Francis’ contention that in the absence of some provision for accumulation, it has no obligation to compensate an employee for unused vacation time. For this proposition, St. Francis relies on Sweet. There, the court stated: “There is no inherent right to a vacation or to payment for unused vacation time and the rights thereto, if any, must be found in the employment contract.” 231 Kan. at 611.
Dr. Weiss did not respond to St. Francis’ argument on this issue. St. Francis makes a persuasive argument that absent a contract provision, there is no right to payment for unused vacation time. Dr. Weiss has not directed the court’s attention to a contract provision which would support his claim; nor has our review of the contract disclosed one. We find no support for the district court’s allowance of accrued vacation pay.
Next, St. Francis contends that there was no evidence to support Dr. Weiss’ claim for unpaid salary because Dr. Weiss did not accept the salary increase which was offered to him in April 1991. St. Francis states that rather than accepting the increase, Dr. Weiss “rejected it as ‘a slap in the face.’ ”
After meeting with Dr. Weiss in April 1991 “regarding his review and salary evaluation process,” Dan Whitney, the administrator of the Snyder Clinic, reported in writing to Mike Mirt, the administrator of St. Francis’ Physician Division. The note, which is dated April 9, 1991, states in pertinent part:
“He indicated to me that if there are indeed no financial benefits involved with the volume of his current practice that he would simply scale down his practice to the level of Dr. Nemraers and treat his practice merely as an 8 to 5 job. In talking with him regarding the compensation which he feels is fair, he has indicated that an increase in his current salary to 4030.00 per pay period would satisfy him and keep him at his current aggressive practice building status. He said that he felt he was worth more than this but would be appeased by that increase. Please advise me regarding your thoughts on this and how to proceed.”
In a memorandum dated April 12, 1991, to Dr. Weiss’ personnel file, Dan Whitney stated:
“I met briefly with Dr. Weiss to inform him that I had presented his concerns and contentions to Mike Mirt regarding his salary and review process. I indicated again that Mike was willing to adjust his salary to $85,863.00 annually from his current salary of $83,990.00. This increase would reflect the recent growth in his practice. Dr. Weiss indicated to me that his initial concerns were still present and that this increase was not adequate. ... I indicated that further negotiations should be pursued between Mike and him directly and ended the conversation with that as the next step for him to proceed with to rectify these differences.”
At trial, Whitney testified that Dr. Weiss considered the proposed increase to be “a slap in the face.”
In his letter of June 6, 1991, which notified St. Francis of his termination, Dr. Weiss wrote: “[T]he resultant salary increase to $85,862.57 promised by Dan Whitney, the MOD Manager, has not been reflected in my paycheck. This is not the first time that an error in my salary or benefits has occurred, but is part of a pattern that has occurred for some time.” On June 18, Bruce Carmichael, a vice-president of St. Francis, wrote to Dr. Weiss in response to his termination notice. With regard to the salary increase, Carmichael stated:
“Your letter of June 6, 1991, mentions you did not receive a salary increase as ‘promised by Dan Whitney.’ It was my understanding you refused the increase offered to you, but if you are now stating this is a default in the Agreement and you will accept the salary increase, please let me know.”
We do not find in the record any response by Dr. Weiss. His resignation became effective July 10, 1991.
The evidence with regard to the unpaid salary is that St. Francis informed Dr. Weiss that it would increase his salary a certain amount and that he responded by demanding more. St. Francis argues that the salary increase could only be effected by a contract which is separate from the employment agreement. St. Francis argues that it offered the salary increase, but Dr. Weiss did not accept it, and, therefore, it never took effect.
The salary increase does not require a separate agreement, since the process for a performance review and a commensurate salary adjustment was established in the employment agreement, and St. Francis’ proposing an increase should be regarded as the hospital’s adjusting Dr. Weiss’ salary to reflect his worth. Thus, the logical conclusion would be that Dr. Weiss was entitled to the increase proposed by the hospital even though he contended that it should have been greater. The supporting provision of the employment agreement states:
“Medical Center shall pay Physician an annual base salary, the initial amount of which shall be $52,000.00. The annual base salary may be increased or decreased by Medical Center prospectively on a semi-annual basis effective as of January 1st and July 1st of each year, based on a regularly-conducted, performance review." (Emphasis added.)
We find no error in the district court’s granting Dr. Weiss’ claim for unpaid salary.
St. Francis, in its final issue, contends that the district court erred in denying its request for prejudgment interest of 10% per year on the amount of the liquidated damages from July 10, 1991. St. Francis does not specify when the period for prejudgment interest would end, but it may be assumed that it would be August 25, 1992, when the journal entry of judgment on jury verdict was filed. St. Francis states that K.S.A. 16-201 is the statutory basis for prejudgment interest. The statute provides in pertinent part as follows: “Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due.”
Two days after the filing of the journal entry of judgment on the jury verdict, St. Francis filed a motion seeking an order which would amend the judgment in its favor “to include prejudgment interest on the liquidated damages, at the rate of ten percent (10%) per annum from July 10, 1991, as provided in K.S.A. 16-201.”. In a journal entry filed on September 17, 1991, the district court denied the motion.
Dr. Weiss argues that because St. Francis did not make its claim for prejudgment interest a part of the pretrial conference order, it was precluded from asserting it later. St. Francis responds that there is no requirement in either K.S.A, 1993 Supp. 60-216 or Supreme Court Rule 140 (1993 Kan. Ct. R. Annot. 131) that a claim for prejudgment interest be specified in the pretrial conference order. K.S.A. 1993 Supp. 60-216 authorizes the pretrial conference and provides:
“The court in its discretion may, and shall upon the request of either party make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of action, unless modified at the trial to prevent manifest injustice.”
Supreme Court Rule 140 establishes the procedural steps to be followed in a pretrial conference. Subsection (g)(12) states that “questions of law will be stated and the court will rule thereon.” (1993 Kan. Ct. R. Annot. at 132). St. Francis contends that prejudgment interest is incidental to the judgment rather than a separate claim or theory of recovery. We agree.
It seems apparent from the statute and the rule that at least one principal purpose of a pretrial conference is the identification and simplification of issues before trial so that the trial proceedings may be as swift and efficient as due process permits. To this end, all issues which might consume trial time should be raised at the pretrial conference. In keeping with the purpose, however, it would not seem necessary to require pretrial presentation of issues unless their early consideration would contribute to streamlining the trial, and it would not make sense to foreclose their being raised later. The question of prejudgment interest is not an issue which would occupy trial time and, therefore, would not require pretrial identification.
St. Francis relies on Royal College Shop v. Northern Ins. Co. of N.Y., 895 F.2d 670, 673-74 (10th Cir. 1990) (applying Kansas law), for the proposition that the district court has no discretion to withhold an award of prejudgment interest when'a claim is liquidated. The federal court quoted In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 868, 703 P.2d 840 (1985), as follows: “ ‘Where an amount is due upon contract, either expressed or implied, and there is no uncertainty as to the amount which is due or the date on which it becomes due, the creditor is entitled to recover interest from the due date.’ ” 895 F.2d at 674.
In the present case, the employment agreement expressly required the physician to pay a set amount to St. Francis upon termination due to the physician’s breach. The district court, therefore, should have awarded prejudgment interest on the liquidated amount.
We hold that (1) the denial of summary judgment based upon the finding that St. Francis may enter into, and enforce, an employment contract with a physician is affirmed; (2) the judg ment entered granting a setoff for unpaid vacation in the amount of $8,269.23 must be reversed; (3) the judgment granted as a setoff for salary in the amount of $969.23 is affirmed; and (4) the denial of prejudgment interest for the liquidated damages must be reversed.
The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for the entry of judgment in accordance with this opinion.
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The opinion of the court was delivered by
Davis, J.:
The Kansas Human Rights Commission appealed from a ruling of the trial court that the Topeka Golf Association was a nonprofit social association or corporation exempt from the provisions of the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq. The trial court concluded that the Commission had no jurisdiction to enforce a fine imposed by Commission order against the Topeka Golf Association for gender discrimination against Ms. Kelly Muxlow. In a published opinion by Judge Lewis, a unanimous panel of the Court of Appeals affirmed. Kansas Human Rights Comm’n v. Topeka Golf Ass’n, 18 Kan. App. 2d 581, 856 P.2d 515 (1993).
We have reviewed the briefs, arguments, and the record in this case, and we conclude the Court of Appeals was correct. We adopt the opinion of the Court of Appeals and affirm both the district court and the Court of Appeals.
Affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This case involves a dispute between Hesston Corporation (Hesston) and certain holders of its $1.60 Preferred Stock (dissenters) over the price the. dissenters should receive for their stock for the purpose of a cash-out merger. Hesston initiated the action, seeking appraisal of the stock under K.S.A. 17-6712 and validation of the terms of the merger. Dissenters counterclaimed for recovery of the stock’s redemption value plus accrued dividends. They alleged breaches of contract and of fiduciary duty. The district court ruled that the claims of some dissenters were barred by their accepting payment for their stock. On the merits, the district court entered judgment in favor of Hesston following a trial to the court. Dissentei's appealed, and Hesston cross-appealed from the district court’s refusal to impose sanctions pursuant to K.S.A. 1993 Supp. 60-211.
The dissenters raise four issues in their appeal. They allege that the district court erred in (1) exercising personal jurisdiction over the nonresident shareholders, (2) holding that the dissenters were barred from pressing claims against Hesston, (3) concluding that there was no breach of contract by Hesston, and (4) concluding that the Hesston Board of Directors did not breach its fiduciary duty to the dissenting shareholders.
Hesston is a Kansas corporation which was formed in 1949 and became publicly held in 1968. Its principal business has been the manufacture and sale of farm equipment.
The stock which is at the heart of this controversy was issued in 1975. A Certificate of Designations, Preferences and Rights of Preferred Stock (Certificate) was filed with the Kansas Secretary of State, and the stock was. designated “$1.60 Cumulative Convertible Preferred Stock” ($1.60 Preferred Stock).
The defendants/appellees (dissenters), were holders of the $1.60 Preferred Stock who refused to tender their stock certificates in exchange, for the payment of $12.50 per share as provided in a 1989 merger agreement between Hesston and Fiat Trattori S.P.A. (Fiat). Most of the dissenters purchased their $1.60 Preferred Stock on the advice of defendant/appellee Latham Kays, a stockbroker, after Hesston gave public notice in January 1987 that it had received a merger proposal from Fiat which would pay $12.50 per share for the stock. Kays advised his clients that Fiat probably could be forced to pay more,, and in January 1987 he wrote to Hesston on behalf of his clients, demanding the redemption price plus accrued dividends.
In 1977, Fiat acquired approximately 40% of Hesston’s voting stock. Fiat’s acquisitions included a majority interest in the common stock and all 600,000 shares of a new issue of preferred stock, the $.60 Cumulative Convertible Preferred Stock. Fiat owned no $1.60 Preferred Stock at that time.
In the 1980s, Hesston’s sales declined significantly from the level attained in the late 1970s, and the corporation sustained severe financial losses. Fiat provided short-term financing to Hes-ston. By the end of 1986, Hesston owed $75,951,000 to Fiat.
In January 1987, Fiat px-oposed to buy out the publicly held interest in Hesston. At that time, Hesston common stock and $1.60 Preferred Stock were trading on the New York Stock Exchange at $374 and $83/s respectively. Fiat proposed two separate cash-out mergers; the offer for common stock would be $4 per share, and the offer for $1.60 Preferred Stock would be $12.50 per share.
By January 1987, the Board of Directors of Hesston (Board) was dominated by Fiat employees, former employees, and persons with business ties to Fiat. The Board designated the only two outside directors to be a two-person Audit Committee to study Fiat’s proposal and recommend a course of action. Donaldson, Lufkin and Jenrette, an investment banking firm employed by the Board to render a fairness opinion on the consideration offered by Fiat, concluded that it was financially fair. The law firm of Willkie, Farr & Gallagher was employed as counsel to the Audit Committee and the Board on legal aspects of Fiat’s proposal.
In February 1987, as it had been advised, the Board recommended that the stockholders of Hesston approve the merger. In May 1987, a special meeting of Hesston stockholders was held for the purpose of voting on the proposed merger. It was approved by a majority of the holders of common stock. It did not receive, however, the two-thirds affirmative vote of $1.60 Preferred Stockholders required by the Certificate for approval.
In May 1987, the cash-out merger of the publicly held Hesston common stock was completed. A Fiat subsidiary formed a wholly owned shell subsidiary which had no purpose other than to act as a merger partner with Hesston. The two corporations were merged, Hesston became the surviving corporation, and publicly held Hesston common stock was canceled and replaced by a right to receive $4 per share. The cash to be paid to holders of common stock was supplied by Fiat.
In May 1987, when Hesston common stock was canceled through the merger, Hesston Preferred Stock was de-listed and no longer traded on the New York Stock Exchange. In August 1988, Hesston Preferred Stock was de-registered when the number of holders had declined below that which requires registration under the Securities Exchange Act of 1934.
In May 1987, when the cash-out merger of $1.60 Preferred Stock was not approved, Fiat began acquiring shares of $1.60 Preferred Stock in order to obtain the controlling two-thirds majority. At that time, 315,715 of the 447,800 outstanding shares were owned by public stockholders.
Fiat acquired 67,050 shares of $1.60 Preferred Stock at the conclusion of litigation with Allied Products Corporation (Allied). In 1986, Allied had offered to buy Hesston. Fiat had rejected the offer because it did not cover Hesston’s unsecured debt to Fiat, and in early 1987, Hesston and Allied filed federal court actions against one another, which were consolidated. In March 1989, Allied dismissed its lawsuit with prejudice and accepted $12.50 per share for each of its 67,050 shares of $1.60 Preferred Stock.
The prices which Fiat paid for the shares of $1.60 Preferred Stock it purchased in order to gain its two-thirds majority are only partially documented in the record. The district court made a finding that Fiat made open market purchases of 119,149 shares and in only one instance paid more than $12.50 per share. The record does not disclose how many shares were involved in that purchase. The district court also found that Fiat acquired,$1.60 Preferred Stock in privately negotiated transactions. The district court made no finding as to the prices paid. However, we know that for some number fewer than 186,199 shares of stock (67,050 plus 119,149), Fiat paid $12.50 or less per share. By the time Fiat took Hesston private in July 1989, Fiat owned 318,284 shares.
In April 1989, a Fiat affiliate (MMS) proposed to merge with Hesston on substantially the same terms as were offered in 1987. Again $12.50 was offered for each share of $1.60 Preferred Stock. The law firm which represents Hesston advised that the expense of a new fairness' opinion need not be incurred. No independent investigation was conducted, and no independent financial advisor was retained.
On July 13, 1989, a special meeting of stockholders was held for the purpose of considering the merger proposal, but proxies were not sent to non-Fiat shareholders because approval of the merger was assured by Fiat’s ownership of more than two-thirds of the $1.60 Preferred Stock. Pursuant to the merger agreement, $1.60 Preferred Stock was canceled and converted to the right to receive $12.50 per share, and Hesston became a wholly owned subsidiary of Fiat. Fiat, on behalf of MMS, deposited cash in an exchange agent account to pay for the Hesston $1.60 Preferred Stock Certificates surrendered.
In 1989, Hesston’s net worth was negative $87,206,000. The money which Fiat deposited for payment of the surrendered Certificates did not appear on Hesston’s balance sheet as debt or equity.
Each of the dissenters filed a written objection or demand with Hesston before the vote was taken on the merger, and each dissenter either abstained or voted against the merger. On July 19, 1989, Hesston sent to all dissenters by certified mail a notice that they had 20 days to make a written demand on Plesston for payment of the value of their stock. The notice also stated that a demand was necessary to perfect their rights under K.S.A. 17-6712 as stockholders objecting to the merger. None of the dissenters made a demand.
Some dissenters held shares in a “street name.” With regard to this practice, Black’s Law Dictionary 1421-22 (6th ed. 1990) states:
“Securities held in the name of a broker instead of his customer’s name are said to be carried in a ‘street name.’ This occurs when the securities have been bought on margin or when the customer wishes the security to be held by the broker. The name of a broker or bank appearing on a corporate security with blank endorsement by the broker or bank. The security can then be transferred merely by delivery since the endorsement is well known. Street name is used for convenience or to shield identity of the true owner.”
According to the dissenters, shares of $1.60 Preferred Stock held in a street name were tendered by the brokerage firm(s) when the merger became effective. Based upon the admission or agreement of the parties, the district court found that in this way the following dissenters tendered all of their stock to the exchange agent and accepted payment:
Robert and Linda Parlette
Jay Johnson
Green Valley Corp.
Farmers Bank of Delaware IRA Account Salinas Valley Corp. Santa Clara Valley Corp.
Molly Swenson
Barry Swenson
F.X. Fitzpatrick
The district court found that there were other dissenters who had some but not all of their stock tendered for them. They are John and Barbara Meyer, Nicholas Halford, and John W. Hemmer.
The remaining dissenters are as follows:
Alfred L. and Blanche E. Anna
James P. and Janice M. Brooks
Lillian A. Colby, Jr.
Christopher Dress
Norman L. Guittar and Norman L. Guittar Trust
John F. Hutson
Latham G. and Joan H. Kays
Eleanore A. Kirchmer
John and Judith Llewellyn
Roy E. Partenheimer
George J. and Leonora A. Schodroski
Russell P. and Jean M. Siebert
The total number of shares of $1.60 Preferred Stock owned by dissenters and not tendered by brokerage firm(s) is 10,710.
In the statutory appraisal proceeding brought by Hesston, the value of its $1.60 Preferred Stock was determined to be $4.90 per share. The judgment was not appealed.
Fiat no longer owns Hesston. Because Fiat had acquired another farm equipment manufacturer, the United States Department of Justice in May 1991 required Fiat to sell all of its outstanding Hesston stock. Additional facts will be stated as is necessary to our determination of the issues raised in this appeal.
We first determine if the district court properly exercised personal jurisdiction over the nonresident shareholders. We note in passing that at oral argument before this court, dissenters did not acknowledge or address this issue in their opening argument or respond to Hesston’s oral argument on this issue.
Hesston initiated this lawsuit by filing a petition pursuant to K.S.A. 17-6712 for determination of the value of its $1.60 Cumulative Convertible Preferred Stock. The caption on the petition stated: In the Matter of Hesston Corporation: (Appraisal and Determination of Value of $1.60 Cumulative Convertible Preferred Stock.) No defendants were named. In the petition, Hesston made two claims for relief. First, Hesston requested the district court to identify the stockholders -who are entitled to valuation and payment for their shares, determine the value, and facilitate the exchange of Certificates for cash. Second, Hesston requested the district court to determine the rights of stockholders who are not entitled to valuation and payment for their shares due to their failing to comply with the requirements of K.S.A. 17-6712. In this regard, Hesston requested a declaratory judgment that the stockholders are not eligible to participate in the appraisal proceeding, that the appraisal proceeding is their exclusive remedy for valuation of their stock, and that the corporation and its directors satisfied their duties to the stockholders in approving the merger and in offering $12.50 per share.
K.S.A. 17-6712 is a mechanism providing that in certain conditions, a shareholder may require the corporation to purchase his shares at a price established under the authority of the court. Each of the 50 states has a statutory counterpart. Vestal, The Rights of Dissenting Shareholders: Protecting the Owners Man- rang Forgot, 37 Kan. L. Rev. 349, 352 (1989). According to Vestal, “[t]he rationale behind the dissenters’ rights statutes has traditionally been linked to the elimination of the common-law requirement of unanimous shareholder approval for certain fundamental corporate actions.” 37 Kan. L. Rev. at 357-58. The accommodation of minority shareholders for their loss of veto power was the right to force purchase of their shares.
K.S.A. 17-6712 provides in pertinent part as follows:
“(b) The corporation surviving or resulting from any merger or consolidation, within 10 days after the effective date of the merger or consolidation, shall notify each stockholder of any corporation of this state so merging or consolidating who objected thereto in writing and whose shares either were not entitled to vote or were not voted in favor of the merger or consolidation, and who filed such written objection with the corporation before the taking of the vote on the merger or consolidation, that the merger or consolidation has become effective. If any such stockholder, within 20 days after the dale of mailing of the notice, shall demand in writing, from the corporation surviving or resulting from the merger or consolidation, payment of the value of the stockholder’s stock, the surviving or resulting corporation shall pay to the stockholder, within 30 days after the expiration of the period of 20 days, the value of the stockholder’s stock on the effective date of the merger or consolidation, exclusive of any element of value arising from the expectation or accomplishment of the merger or consolidation.
“(c) If during a period of 30 days following the period of 20 days provided for in subsection (b), the corporation and any such stockholder fail to agree upon the value of such stock, any such stockholder, or the corporation surviving or resulting from the merger or consolidation, may demand a determination of the value of the stock of all such stockholders by an appraiser or appraisers to be appointed by the district court, by filing a petition with the court within four months after the expiration of the thirty-day period.
“(d) Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the corporation, which shall file with the clerk of the court, within 10 days after such service, a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the corporation. If the petition shall be filed by the corporation, the petition shall be accompanied by such duly verified list. The clerk of the court shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the corporation and to the stockholders shown upon the list . . .
“(e) After the hearing on such petition the court shall determine the stockholders who have complied with the provisions of this section and become entitled to the valuation of and payment for their shares, and shall appoint an appraiser or appraisers to determine such value. ...
“(f) • ■ ■ The court by its decree shall determine the value of the stock of the stockholders entitled to payment therefor and shall direct the payment of such value, together with interest, if any, as hereinafter provided, to the stockholders entitled thereto by the surviving or resulting corporation. Upon payment of the judgment by the surviving or resulting corporation, the clerk of the district court shall surrender to the corporation the certificates of shares of stock held by the clerk pursuant to subsection (g). The decree may be enforced as other judgments of the district court may be enforced, whether such surviving or resulting corporation be a corporation of this state or of any other state.” (Emphasis added.)
In this case, the shareholders who filed written objection with Hesston before the vote on the merger and demanded in writing after the merger the payment of the value of the stock were listed by Hesston in Exhibit E, which was attached to the petition. The stockholders listed in Exhibit E are those who had complied with the requirements of 17-6712 for participation in an appraisal proceeding. None of the defendants in the present case is listed. A second list of stockholders was attached to the petition as Exhibit G. It was titled, “Former Holders of Hesston Corporation Preferred Stock Who Previously Objected to Merger Agreement but Have Failed to Tender Shares.” The stockholders listed in Exhibit G had not complied with all the requirements of 17-6712 for participation in an appraisal proceeding. Many of the defendants in this case are listed in Exhibit G. The record contains copies of a notice and summons which was sent to each of the stockholders on the second list.
Some of the stockholders listed in Exhibit G, Nicholas Halford, Latham and Joan Kays, Santa Clara Valley Corp., and Robert and Linda Parlette, responded by filing a motion to dismiss for lack of personal jurisdiction. Hesston opposed the motion. Hes-ston did not argue that it was not necessary for the district court to exercise personal jurisdiction over the moving defendants. Hes-ston stated that it filed this lawsuit to bring a final resolution to its ongoing dispute with several dissident stockholders. The district court denied the motion to dismiss. The stockholders who filed the first motion to dismiss filed an answer to the petition and their counterclaims. They reasserted the defense that the court lacked personal jurisdiction over them, and they alleged as counterclaims that Hesston breached its contract with them and breached its fiduciary duty.
Meanwhile, the appraisal proceeding went forward. A journal entry of judgment was filed establishing the value of $1.60 Preferred Stock to be $4.90 per share and ordering the exchange of cash for the tendered stock of the five stockholders listed in Exhibit E who had participated in the appraisal proceeding. The district court ordered that this journal entry was a final judgment pursuant to K.S.A. 60-254(b).
Hesston filed a motion for default judgment against the “named defendants” whose names were listed in Exhibit G and who had been served with process. Those defendants filed with the district court a pleading announcing their intention to join in the answer and counterclaims which already had been filed by Halford, the Kayses, Santa Clara Valley Corp., and the Parlettes. Hesston withdrew its motion for default judgment. The “new” defendants filed a motion to dismiss for lack of personal jurisdiction. Hesston strenuously opposed the motion.
None of the dissenters is a resident of Kansas. In denying the second motion to dismiss for lack of personal jurisdiction, the district court likened the Certificate to a contract and concluded that jurisdiction was proper under the Kansas long arm statute, K.S.A. 1993 Supp. 60-308(b)(5). It concluded that due process requirements had been satisfied because the dissenters “have not been mere passive investors but have actively sought to involve themselves in Hesston’s affairs in the State of Kansas.”
This court has stated:
“The Kansas long arm statute, K.S.A. 1990 Supp. 60-308, is liberally construed to assert personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution.” Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 466, 819 P.2d 1192 (1991), cert. denied _ U.S. _, 118 L. Ed. 2d 551 (1992).
Thus, a two-step analysis is used in which the activities of defendants are measured by due process standards if they fall within the scope of a provision of 60-308(b).
K.S.A. 1993 Supp. 60-308 provides in pertinent part:
“(b) . . . Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
“(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.”
The dissenters do not seriously dispute that their conduct falls under 60-308(b)(5). Their claim for recovery of the redemption price plus accrued dividends of the $1.60 Preferred Stock is based on the Certificate’s giving rise to contractual rights. Even though not retreating on their position that the Certificate is or amounts to a contract, in a footnote to their brief the dissenters suggest that at the time of the cash-out merger of the $1.60 Preferred Stock, the contract could be performed only in Illinois. The dissenters do not elaborate on this contention.
Hesston states that the dissenters did not argue in the district court that performance was not taking place in Kansas. Although the corporate offices of Hesston were moved to Illinois in 1988, Hesston argues that many corporate functions which might involve shareholders remained in Kansas after 1988. It asserts that they include the corporation’s maintaining a significant manufacturing facility, holding stockholders’ meetings, issuing annual reports, and making Securities Exchange Commission (SEC) filings. It is undisputed that the July 1989 shareholders’ meeting at which the cash-out merger was approved was held in Kansas and the exchange account for tendered $1.60 Prefei'red Stock was established in a bank in Kansas. From this meager record it does not appear that the contract between Hesston and the dissenting shareholders could be performed only in Illinois. Thus, the district court’s conclusion seems to be correct that under K.S.A. 1993 Supp. 60-308(b)(5), the dissenters submitted to the jurisdiction of the courts of this state as to a cause of action arising from their entering into contracts with Hesston to be performed at least in part in Kansas.
As to the nature and quality of the dissenters’ activities, the district court concluded that they had engaged in conduct
"which was reasonably likely to bring them into conflict with Hesston Corporation, and therefore to subject them to litigation in the State of Kansas. These activities include: utilization of defendant L.G. Kays as a common agent for the purpose of purchasing stock for virtually all of the shareholders, as well as the use of Kays by the shareholders as an agent in negotiations with Hesston Corporation. Additionally, ten of the thirteen defendants joined a ‘Preferred Shareholders Protective Committee’ and signed a Shareholder Agreement to give other members of the committee a right of first refusal to purchase their preferred stock. The clear purpose of this action was to implement their objections to the 1989 merger agreement, and which is the crux of the dispute between the shareholders and Plesston Corporation in this action. The same shareholders also participated in the Allied Corporation litigation which preceded this suit. The same or nearly the same issues were raised in the Allied litigation as in this suit, and since the stockholder defendants at issue utilized a common Chicago law firm to help protect their interests in the Allied litigation in Kansas courts, it is fair to conclude that they have not been mere passive investors but have actively sought to involve themselves in Hesston’s affairs in the State of Kansas.”
The district court made the following findings of fact which relate to the dissenters’ role in the Allied litigation and the formation and operation of the “Preferred Shareholders Protective Committee”:
“45. . . . After receiving an express threat of litigation from Allied, . . . [Hesston] file[d] suit against Allied in federal district court in Wichita, Kansas. Hesston Corporation v. Allied Products Corporation, et al., Civil Action No. 87-1266-C. On May 20, 1987, Allied also filed a lawsuit in federal court against Hesston claiming to represent a class of all Plesston $1.60 Preferred Stockholders and claiming they were entitled to the $25.00 redemption price plus all accrued dividends. Those two lawsuits were consolidated.
“46. Shortly after Allied announced to the press that they would be contesting the 1987 Merger Agreement, Kays contacted Allied’s attorney . . . and requested that [the attorney] .and his law firm . . . represent his interests and the interests of his clients and various other Hesston $1.60 Preferred Stockholders with whom he had been in contact.
“47. Throughout 1987, Kays continued to make demands against Hes-ston. ... In the latter part of 1987 and 1988, defendants Kays, Parlette and Swenson agreed to jointly hire an attorney in Kansas for the purposes of obtaining a copy of the Hesston stockholders list.
“48. In early February, defendant Kays and Allied formed a committee of $1.60 Preferred Stockholders known as the Preferred Shareholders Protective Committee (the ‘Committee’) with the objective of blocking Fiat from obtaining ownership or control of 2k of the $1.60 Preferred Stock. The Committee sent a notice to all $1.60 Preferred Stockholders soliciting participation in the Committee and the sharing of information by writing to the Committee in care of defendant Kays.
“49. In early March, 1988, a group of Hesston $1.60 Preferred Stockholders, including defendant Kays, issued a press release announcing that they would seek to join as plaintiffs in the class action filed by Allied against Hesston and Fiat.
“50. On May 20, 1988, Hesston was allowed leave to amend its federal court action against Allied in Wichita, Kansas to add Kays and numerous other stockholders as defendants. The additional defendants were commonly referred to as the ‘Kays Group.’ Among other claims, Hesston sought declaratory judgment against the Kays Group declaring that Hesston and its Board of Directors had discharged all their duties to said stockholders in the consideration, recommendation and approval of the Merger Agreement in 1987.
“53. On March 28, 1989, an Order of Dismissal With Prejudice was filed in the class action brought by Allied and ... in the action brought by Plesston against Allied and the Kays Group. The Kays Group’s attorneys approved said dismissal with prejudice.”
In the present case, it appears that the dissenters’ motion to dismiss for lack of jurisdiction was decided on the basis of written materials. Among the district court’s prefatory remarks is the following: “Prior to making these orders, the Court has carefully studied the submissions of the parties, and conducted an extensive review of the pertinent cases.” Examination of the index to the record on appeal does not reveal a transcript for an evidentiary hearing on the question of personal jurisdiction. It appears that the question of personal jurisdiction was decided by the district court on the basis of the parties’ written submissions.
In Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1988), a case cited by the dissenters, the Tenth Circuit Court of Appeals explained appellate review of personal jurisdiction questions:
“ ‘The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing. The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiffs favor, and the plaintiffs prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.’ [Citations omitted.] We review a district court’s ruling on a jurisdictional - question de novo. [Citation omitted.] Thus, our task is to determine whether the plaintiffs’ allegations, as supported by affidavits-, make a prima facie showing of the minimum contacts necessary to establish jurisdiction over each defendant.”
There are a few plain factual differences in the submissions of the parties, but their positions differ most significantly in what inferences they advocate should be drawn from the written materials.
Hesston responded to the first motion to dismiss for lack of personal jurisdiction with copies of letters to Hesston and its counsel from Latham Kays and Robert Parlette complaining of corporate activities and seeking means of taking a more active role in decision making, including requesting the shareholder list. The correspondence began in 1987. Also supplied by Hesston were letters written by Halford, Latham and Joan Kays, Robert Parlette, and Molly Swenson on behalf of Santa Clara Valley Corp., objecting to the 1989 merger. An affidavit of Richard Hrdlicka, General Counsel, Senior Vice President and Secretary of Hesston, states that Allied filed with the SEC a Schedule 13D, Amendment No. 2 form which disclosed that Allied had formed a committee of Preferred Stockholders- known as the Preferred Shareholders Protective Committee. Hrdlicka also stated that Allied had entered into an agreement with numerous other Preferred Stockholders known as an “Agreement Among Holders of $1.60 Cumulative Convertible Preferred Stock of Hesston.” Hrdlicka stated that Hesston brought Latham Kays, C.B. and Molly Swenson, and Green Valley Corp. Profit Sharing Trust into Allied as additional defendants, that they were represented by Kansas counsel, and that they did not raise the question of personal jurisdiction.
In a letter opinion, the district court advised the parties that it was denying the motion to dismiss which had been filed by Halford, the Kayses, Santa Clara Valley Corp., and the Parlettes. The district court stated that they are not merely passive investors who happened to purchase the preferred stock, they had extensive contacts with corporate management, and they attempted to organize into a protective committee. The district court also stated that at least some of these individuals have voluntarily participated in Allied without objecting to the jurisdiction.
The letter opinion was followed by the filing of a motion to dismiss for lack of personal jurisdiction by the remaining defen dants. The position of these defendants was that the reasons given by the district court for exercising jurisdiction over Halford, the Kayses, Santa Clara Valley Corp., and the Parlettes did not apply to them. They assert that they did not have extensive contacts with corporate management and did not voluntarily participate in Allied.
Hesston submitted answers to interrogatories to establish that Barry Swenson controls the shares of stock which are “beneficially owned” by Green Valley Corp. and Salinas Valley Corp. Hesston submitted an Hrdlicka affidavit stating that Hesston believed that Latham Kays was the leader of a group of dissident stockholders, but that Hesston was not able to fully determine the identity of all stockholders working with Kays. Hesston also attached to its response photocopies of letters sent to Hesston objecting to the 1989 merger. Except for Salinas Valley Corp., Green Valley Corp., Barry and Molly Swenson (as individuals), and F.X. Fitzpatrick, the record contains objections from the dissenters either in the same form as the letter sent by the Kayses or in some other form.
The dissenters state that none of the movants participated in the Allied Products litigation or joined the preferred shareholders’ protective committee. They did not provide a sworn statement or statements, but they did append a photocopy of a pleading from Allied, which lists a number of defendants. The names familiar from the present case are L.G. Kays, F.X. Fitzpatrick, C.B. Swenson and Swenson for Green Valley Corp. Profit Sharing Trust, and Molly Swenson.
With respect to Committee membership, Hesston provided copies of an “Agreement Among Holders of $1.60 Cumulative Convertible Preferred Stock of Hesston Corporation,” which had been signed by:
Alfred and Blanche Anna
James and Janice Brooks
Norman Guittar and Guittar as trustee
John Hutson
Jay Johnson
John and Barbara Meyer
Eleanore Kirchmer
Roy and Margaret Partenheimer
George and Leonora Schodroski
Russell and Jean Siebert
By signing, the shareholders agreed to become members of a Preferred Shareholders Protective Committee and to give other Committee members a right of first refusal on their $1.60 Preferred Stock.
The agreement also requested members to contribute 20 per share to the Committee, in care of Latham Kays, to defray mailing expenses. Hesston’s theory is that Kays was agent for these shareholders and that an agent’s contacts with the forum state suffice for the purpose of imposing personal jurisdiction on the principals.
Attached to the dissenters’ reply are deposition excerpts, which are offered to controvert Hesston’s' assertion that Kays was the dissenters’ implied or expressed agent. Latham Kays is a stockbroker, and some of the dissenters bought their $1.60 Preferred Stock on his advice. Kays testified'that he was their
“registered representative. I liad suggested-and recommended the stock'to them, and I felt an obligation, at least a moral obligation, to have their stock work out as well as I thought it should for both their interest and my own, and I was trying to work to our mutual interest.”
The dissenters also deny that Kays was acting on their authorization or behalf in his various activities, including hiring counsel.
Hesston relies principally on American Greetings Corp. v. Cohn, 839 F.2d 1164, 1165 (6th Cir. 1988), which shares with the present case “a somewhat unusual fact setting.” In American Greetings, the corporation sued a nonresident shareholder, seeking a declaration that an amendment to the articles of incorporation was valid. The suit followed Cohn’s threat to sue for a declaration of invalidity. What is unusual about the fact setting is that the corporation sued a shareholder in the corporation’s state of incorporation. Thus, the challenge to the court’s jurisdiction over the defendant required examination of the shareholder’s rather than the corporation’s connections with the forum state.
Cohn was a resident of California. He formerly lived in Ohio and was admitted to the Ohio bar but never practiced there. He owned a large number of shares in American Greetings. After an amendment to the articles of incorporation, which he did not vote for or against, he began to make his opposition to the amend ment known to the corporation and to insist that it be rescinded. During the nine months from August 1985 to April 1986, “[Cohn] contacted the [corporation] on numerous occasions in writing, by telephone, through an Ohio lawyer, and through his brother, who lived in Ohio.” 839 F.2d at 1165. In May 1986, American Greetings filed its declaratory judgment action. The district court dismissed the complaint for lack of personal jurisdiction on the dual grounds that Cohn’s contacts with Ohio satisfied neither the State’s long arm statute nor due process requirements. 839 F.2d at 1166.
The Sixth Circuit Court of Appeals reversed. The pertinent provision of Ohio’s long arm statute stated: “ ‘(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s: (1) Transacting any business in this state.’ ” 839 F.2d at 1167 (quoting Ohio Rev. Code Ann. § 2307.382 [1991]). This provision is comparable to K.S.A. 1993 Supp. 60-308(b)(l). As with Kansas’ long arm statute, the Ohio statute “ ‘has been construed to extend to the outer limits of due process’ ” so that the analysis becomes one of “ ‘constitutional limitations.’ ” 839 F.2d at 1167 (quoting R.L. Lipton Distributing Co. v. Dribeck Importers, Inc., 811 F.2d 967, 969 [6th Cir. 1987]).
The Sixth Circuit Court of Appeals, like the Tenth Circuit in Rambo, requires a plaintiff to make only a prima facie case of jurisdiction when the issue is decided by the district court on written submissions. 839 F.2d at 1168-69.
Three personal jurisdiction cases which have been decided by the United States Supreme Court within the last decade were considered by the Sixth Circuit Court of Appeals to offer particular guidance. In Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984), the Supreme Court distinguished between specific and general jurisdiction. “Specific jurisdiction” is exercised over a defendant whose contacts with the forum state give rise to the suit; “general jurisdiction” is exercised over a defendant in a suit which does not arise out of or relate to the defendant’s contacts with the forum state. 839 F.2d at 1167.
“When the cause of action is related to or arises out of a defendant’s contacts with the forum, in personam jurisdiction must be founded on a ‘relationship among the defendant, the forum, and the litigation.’ [466 U.S.] at 414, 104 S. Ct. at 1872 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580, 53 L. Ed. 2d 683 (1977)).” 839 F.2d at 1167.
In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985), the Supreme Court reiterated that the “constitutional touchstone” is the defendant’s purposefully acting to establish contacts with the forum state.
“The Court stated that once it is determined that the defendant’s purposeful acts caused minimum contacts with the forum state, these contacts ‘may be considered in light of other factors’; i.e., the burden on the defendant, the forum’s interest, the plaintiffs interest, and the interest of the interstate judicial system. [471 U.S.] at 476-77, 105 S. Ct. at 2184.” 839 F.2d at 1168.
In Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987), the Court concluded that it was a violation of due process for California to exercise personal jurisdiction over a Japanese manufacturer of a valve which had been incorporated by a Taiwanese company into a tire marketed in the United States. When the Taiwanese company was sued in tort in California, it filed a cross-complaint against Asahi, seeking indemnification. The California court exercised jurisdiction on the ground that Asahi acted intentionally by placing its product in the stream of international commerce. The Supreme Court concluded that the State’s exercise of jurisdiction was unreasonable and unfair in that the burden on Asahi greatly outweighed the interests of the defendant tire company and the forum state in subjecting the Japanese company to jurisdiction.
The Sixth Circuit Court of Appeals noted that American Greetings, like Burger King, was a specific jurisdiction case. 839 F.2d at 1169. In the present case, the dissenters fault the district court for failing to decide whether this was a case of specific or general jurisdiction. In Helicopteros, it was not argued that the claims against the foreign company arose from or were related to its activities in the forum state. 466 U.S. at 414. Thus, the State was said to be exercising “general jurisdiction,” and the company’s contacts with the forum state were examined for “continuous and systematic general business contacts.” 466 U.S. at 416. In the present case, Hesston argues that its claims against the dissenting shareholders arise out of and are related to their entering into a contract which was to be performed at least in part in Kansas and their opposing the corporate restructuring. The dissenters deny the substance but not the defining scope of Hesston’s contentions. Thus, it appears that the present case should be analyzed as a matter of “specific jurisdiction.”
Mindful of the “constitutional touchstone,” the Sixth Circuit Court stated that “[satisfaction of the ‘pui'poseful availment’ requirement ensures that a defendant will not be ‘haled into a jurisdiction’ with which he has no substantial connection or where his activities would not lead one reasonably to believe that he was subjecting himself to the processes of the jurisdiction. [Burger King, 471 U.S. at 475.]” 839 F.2d at 1169. In an opinion the dissenters in the present case rely on, Kansas Turnpike Authority v. Wheeler, 243 Kan. 602, 616, 760 P.2d 1213 (1988), this court quoted extensively from Burger King for the proposition that “due process requires a demonstration that the nonresident defendant purposely established minimum contacts with the forum state, thereby invoking. the benefits and protections of its law.”
The facts of American Greetings did not fit any of the typical patterns of personal jurisdiction cases. The Sixth Circuit court, therefore, looked for features in American Greetings “that are analogous to those in the more common cases.” 839 F.2d at 1169. With regard to Cohn’s activities, the court stated:
“It is clear to us that Cohn himself originated and maintained the required contacts with Ohio by his letters and telephone calls to American Greetings and by designating his brother, an Ohio resident, and an Ohio attorney to pursue his claims with American Greetings in Ohio. In these contacts Cohn did much more than argue that the amendment to the plaintiffs articles was illegal. He threatened to sue American Greetings and sought a substantial sum of money to forego his claim. In view of these undisputed facts, we find the district court’s description of Cohn’s position in the litigation as ‘mere ownership of stock in an Ohio company and the expression of strong reservations concerning the legality of a matter of legitimate shareholder interest’ to be inaccurate.” 839 F.2d at 1170.
Satisfied that Cohn’s purposeful acts created a substantial connection with Ohio, the court examined “the factors that determine reasonableness” — the burden on defendant and the interests of plaintiff, forum, and interstate judicial system. 839 F.2d at 1170. It concluded that the burden on Cohn was not unduly heavy in that he was represented by Ohio counsel who pressed Cohn’s claims against the corporation well before suit was filed. American Greetings was said to have “a strong interest in the availability of a convenient forum for resolution of a dispute that had the possibility of affecting its relations with all its shareholders.” 839 F.2d at 1170. Ohio was said to have “a strong interest in providing a forum for the adjudication of issues pertaining to the legality under Ohio law of the acts of an Ohio corporation.” 839 F.2d at 1170. Finally, the court concluded that the interest of the interstate judicial system was not implicated. Thus, the strong interests of the corporation and the State outweigh the manageable burden on Cohn, and the court found that Cohn had failed to present any considerations which would render the exercise of personal jurisdiction unreasonable. 839 F.2d at 1170.
American Greetings is uniquely helpful in the present case in that that court undertook an examination of the activities of a shareholder defendant.
This case involves a number of shareholder defendants who engaged in widely varying degrees of active opposition to Hes-ston’s merger. Contacts personally made by shareholders with Hesston are shown for the most part by letters sent in July 1989 objecting to the 1989 merger. It does not appear from the record that an objection was sent by Green Valley Corp., Salinas Valley Corp., Barry Swenson, F.X. Fitzpatrick, or John and Judith Llewellyn. Molly Swenson objected on behalf of Santa Clara Valley Corporation, but not as an individual. In Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 467, 819 P.2d 1192 (1991), cert. denied _ U.S. _, 118 L. Ed. 2d 551 (1992). this court stated: “[Residents of one state, by becoming stockholders of a corporation incorporated under the laws of another state, submit themselves to that extent to the jurisdiction and laws of the latter state. See 36 Am. Jur. 2d, Foreign Corporations § 431 and cases cited therein.” The statement was unnecessary to the holding in that case and does not reflect current law.
The personal jurisdictional question in Anderson centered on defendants Jones and Young, who were nonresident directors and officers of the defendant Kansas corporation. Jones and Young claimed that the court lacked personal jurisdiction over them, but this court disagreed. It stated: “Jurisdiction over individual officers, directors and employees of a domestic corporation, for claims that may result in personal liability, is predicated merely upon jurisdiction over the corporation itself.” 249 Kan. at 468.
Hence, the court’s statement about nonresidents submitting themselves to jurisdiction in the state merely by purchasing stock is gratuitous. The statement is drawn directly from § 433, not § 431, of the Am. Jur. 2d discourse on foreign corporations. The United States Supreme Court cases cited in § 433 antedate Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), the opinion generally considered to mark a shift in judicial attitude toward jurisdictional power. In Interhat. Shoe, the formulation that minimum contacts must constitute the fair play and substantial justice of due process was applied.
The dissenters point out that the dicta of Anderson is directly contradicted in Shaffer v. Heitner, 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977). There, the Supreme Court decided that nonresident officers and directors of a Delaware corporation were not subject to suit in Delaware despite their positions with a domestic corporation and their ownership of its stock. The Supreme Court stated that it had not been demonstrated
“that appellants have ‘purposefully avail[ed themselves] of the privilege of conducting activities within the forum State,’ Hanson v. Denckla, supra, at 253, in a way that would justify bringing them before a Delaware tribunal. Appellants have simply had nothing to do with the State of Delaware. Moreover, appellants had no reason to expect to be haled before a Delaware court. Delaware, unlike some States, has not enacted a statute that treats acceptance of a directorship as consent to jurisdiction in the State. And ‘[i]t strains reason ... to suggest that anyone buying securities in a corporation formed in Delaware “impliedly consents” to subject himself to Delaware’s . . . jurisdiction on any cause of action.’ Folk & Moyer, [73 Colum. L. Rev. 749] n.10, at 785. Appellants, who were not required to acquire interests in Greyhound in order to hold their positions, did not by acquiring those interests surrender their right to be brought to judgment only in States with which they had had ‘minimum contacts.’” 433 U.S. at 216.
It may also be noted that the jurisdiction asserted was characterized by the Delaware court as being quasi in rem because it was founded on the statutory presence in Delaware of stock owned by the individual defendants. The Supreme Court rejected the argument that the jurisdiction, therefore, was not subject to the analysis developed in in personam cases. The Court “conclude[d] that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” 433 U.S. at 212.
In the present case, the provision of the long arm statute which has been applied involves a contract because the Certificate issued to stock purchasers sets out the terms of an agreement between them and the corporation. As with the purchase of stock, an individual’s contract with an out-of-state party does not alone establish sufficient minimum contacts in the other party’s home forum to support the exercise of personal jurisdiction. Burger King, 471 U.S. at 478.
At the urging of Hesston, the district court singled out the contract subsection of the long arm statute as applying to the dissenters. The contract in question is the Certificate for $1.60 Preferred Stock. The second step of the analysis, examination of the nature and quality of the dissenters’ contacts with Kansas, may be broader in scope than an inquiry solely into the terms of the contract. See 471 U.S. at 479. Thus, for those defendants who sent written objection to the 1989 merger to Hesston, the district court’s exercise of jurisdiction was based at least in part on those letters. The question is whether the dissenters’ fulfillment of a statutory prerequisite to participation in the appraisal proceeding, as directed in Hesston’s notice, is the kind of “purposeful availment” of the benefits of interstate activities which satisfies due process requirements. We conclude that it does. By objecting, each defendant “ ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” 471 U.S at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 [1958]). By objecting, the dissenters took a step toward preserving the right to participate in the statutory appraisal proceeding, which in some instances may pi-otect the rights of minority shareholders. In the particular circumstances of this case, the statutoiy pi’oceeding has been wielded by the corporation moi-e as a swoi'd than as a shield, but at the time the dissenters were objecting it is likely that they were hoping to use it to their advantage.
The dissenters cite Nicholas v. Buchanan, 806 F.2d 305 (1st Cir. 1986), cert. denied 481 U.S. 1071 (1987), for the proposition that the use of interstate mail and telephone will not suffice without more to satisfy due process. In that case, the First Circuit Court of Appeals collected a number of federal cases which support the proposition. 806 F.2d at 307-08. Here, the objecting letters sent by dissenters were a means of preserving their statutory rights rather than as garden-variety mail at issue in the federal cases.
In addition to sending a written objection, some of the dissenters signed an agreement by which they agreed to form the shareholders’ Committee and to refrain from selling their shares to Fiat. On this matter, Hesston furnished an affidavit stating that Allied claimed to have formed the Committee and that Allied had entered into the agreement with the other stockholders. The agreement itself does not seem to involve contact with Kansas or with Hesston, the Kansas corporation. The agreement, however, formalized an alliance of stockholders involved in the Allied litigation in Kansas, or at least some subgroup of the alliance of stockholders was involved. The district court- found that when Allied’s offer to purchase Hesston was rebuffed, Allied threatened to sue. Hesston beat Allied to the courthouse, but Allied later filed a suit against Hesston in which Allied claimed to represent a class of owners of $1.60 Preferred Stock. The two suits were consolidated, and Hesston amended its complaint to add individual shareholders as named defendants. With regard to the timing of these events, the district court found that Allied’s complaint was filed in May 1987 and that Hesston was allowed leave to amend in May 1988. In 1987, Kays, in particular, made demands of Hesston, he requested that Allied’s attorney represent his interests and the interests of other dissenters, and he and Allied formed the Committee.
The district court viewed the agreement as a significant activity for the purpose of determining contacts with Kansas. The district court stated that its clear purpose was to implement the dissenters’ objections to the 1989 merger. The district court also viewed the Committee members’ participation in the Allied litigation as a significant activity for the purpose of determining contacts with Kansas. There does not seem to have been a certification of a class in that action, nor does it seem that the individual dissenters were named in the action other than by Hesston when it amended to add some individuals as defendants. The district court viewed the dissenters’ involvement as self-initiated contacts, nonetheless, on the ground that they engaged in activities which they should have anticipated would bring them into conflict with Hesston on the issues being litigated at that time in the federal court in Kansas. Thus, they should have anticipated being haled into court in Kansas.
In American Greetings, the appellate court viewed Cohn’s threatening suit and seeking a substantial sum of money to forego his claim as having been inaccurately described by the trial court as “the expression of strong reservations concerning the legality of a matter of legitimate shareholder interest.” 839 F.2d at 1170. The appellate court concluded that Cohn had removed himself from the category of passive investor and placed himself squarely in a position of satisfying the requirements of minimum contacts and purposeful availment. 839 F.2d at 1170.
This court, too, has had occasion to compare the roles of passive investors with those of investors who purposely availed themselves of the benefits of Kansas law. In Kansas Turnpike Authority v. Wheeler, 243 Kan. at 616-18, the court concluded that the district court properly exercised personal jurisdiction over nonresident purchasers of turnpike revenue bonds. According to the district court’s memorandum decision, the “ “bonds were issued by a governmental entity of the State of Kansas and were secured by a lien on revenues to be generated from assets located in Kansas.’ ” 243 Kan. at 617. The record showed that one defendant regularly telephoned Kansas Turnpike Authority (KTA) officers for information relating to the bonds, the other defendant wrote to KTA, and both requested records from KTA and inspected documents in Kansas. 243 Kan. at 617. In these circumstances, the court’s assertion of personal jurisdiction over the bondholders was held to be consistent with the due process limitation on state power.
In the present case, the district court was justified in concluding that the documented activities of at least some of the dissenters resulted in their having significant contacts with this state. Latham Kays and Robert Parlette, in particular, actively sought to prevent Fiat’s takeover. For those dissenters whose documented activities are limited to signing the agreement and/or writing to object to the merger, the contacts are certainly less obvious. Hesston ar gues that their activities were carried out through the agency of Kays. His presence behind the activities may be detected in his contacting Allied, Allied’s advising the SEC that it had formed the Committee, and many of the objecting letters being identical to the letter sent by Kays. Hesston also contends that Kays was acting on behalf of the other dissenters when he threatened litigation and made demands of Hesston, but the record is weak on this point. Hesston furnished photocopies of letters written by Kays in which he claimed to be writing on behalf of other stockholders as well as himself, but his authorization to do so is missing. Hesston also argues that the timing of the dissenters’ purchases of stock, i.e., after Fiat’s tender offer, demonstrates that they were aggressive and contentious investors. The district court found that many of the dissenters purchased their stock from Kays after January 1987, but precisely which stockholders purchased when is not set out in the district court’s opinion.
The dissenters have not presented any reason why general principles of agency should not apply in the context of personal jurisdiction. The Kansas long arm statute expressly provides that the actions of an agent may constitute submission to the jurisdiction of the courts of this state. In American Greetings, Cohn’s contacts with Ohio were in part conducted through his agent. In Burger King, the Supreme Court noted that the Eleventh Circuit Court of Appeals held that one joint franchise owner’s physical presence in the forum state was irrelevant to the question of the other joint franchise owner’s minimum contacts with that forum. 471 U.S. at 479 n.22. The Supreme Court did not find it necessary to “resolve the pei-missible bounds of such attribution,” but it did suggest that the holding was too narrow:
“We have previously noted that when commercial activities are ‘carried on in behalf of an out-of-state party those activities may sometimes be ascribed to the party, International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945), at least where he is a ‘primary participan[t]’ in the enterprise and has acted purposefully in directing those activities, Calder v. Jones, 465 U.S. at 790.” 471 U.S. at 479 n.22.
The defendants in Calder v. Jones, 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984), are reporter and editor, respectively, with the National Enquirer. Neither resided in the forum state, California, but the publication was circulated there. The Supreme Court stated:
“Petitioners are correct that their contacts with California are not to be judged according to their employer’s activities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant’s contacts with the forum State must be assessed individually. See Rush v. Savchuk, [444 U.S. 320] at 332 (‘The requirements of International Shoe . . . must be met as to each defendant over whom a state court exercises jurisdiction’). In this case, petitioners are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.” 465 U.S. at 790.
What the dissenters have argued to this court is that there is no express agency. They contend that, if an agency existed at all, it is an implied agency so tenuous that it would offend “traditional notions of fair play and substantial justice” to force the stockholders to defend this action in Kansas. They refer to the “unwitting creation of an agency.”
There is some merit in dissenters’ characterization of the alleged agency relationship; however, we do not rely on agency as a significant or even controlling factor in our determination of this issue. The record contains signed agreements, objecting letters, and answers to interrogatories, which serve to demonstrate the efforts of dissenters to intervene in the corporation’s course of action.
We conclude that the district court correctly determined that the dissenters submitted themselves to the jurisdiction of the courts of this state under the long arm statute, K.S.A. 1993 Supp. 60-308(b)(5), by entering into a contract with Hesston and that Hesston made a prima facie showing of the minimum contacts necessary to establish jurisdiction over those dissenters who corresponded with the corporation, threatened litigation, demanded information, agreed to work together to prevent Fiat’s takeover, and/or objected to the 1989 merger. The record contains evidence of at least one of these contacts or activities for each of the dissenters. Finally, the burden on the dissenters and the interests of Kansas, Hesston, and the interstate judicial system should be considered. The dissenters are represented by able Kansas counsel, and their association seems to date from before the initiation of this lawsuit. Also of record as counsel for the dissenters is a firm from the State of Washington. The dissenters, or at least some dissenters, filed a related suit in Washington. It is stayed pending the resolution of the present proceedings. The dissenters are scattered throughout the United States, their Washington counsel has entered an appearance in Kansas, and no reason has been given why it would be more convenient for the non-Washington residents to litigate there than here. Hesston is represented here by Kansas counsel with whom it has a longstanding relationship. Kansas law governs the dispute, and Kansas has a keen interest in resolving the once-prominent Kansas corporation’s differences with its stockholders. Thus, we find that the balance tips in favor of the exercise of personal jurisdiction in Kansas.
We next consider if any of the dissenters were barred from pressing claims against Hesston because their shares were surrendered or because they previously participated in litigation against Hesston. The district court ruled that Jay Johnson, Green Valley Corp., Salinas Valley Corp., Santa Clara Valley Corp., Barry and Molly Swenson, and F.X. Fitzpatrick (tendering shareholders) were barred from pressing their claims against Hesston because their shares had been tendered to the bank which maintained the exchange account. The shares were held in a “street name” and were tendered by the brokerage firm(s). The tendering shareholders received $12.50 per share in exchange for their certificates.
The tendering shareholders argue that the issue is one of waiver and contend that they did not waive their rights to press claims against Hesston. They rely on the well-known principle that a waiver is the intentional relinquishment of a known right. Prather v. Colorado Oil & Gas Corp., 218 Kan. 111, 117, 542 P.2d 297 (1975); Jones v. Jones, 215 Kan. 102, 116, 523 P.2d 743, cert. denied 419 U.S. 1032 (1974). They argue that they did not know until after the shares had been tendered and value received in exchange that the action was being undertaken by the brokerage firm(s). In other words, they did not intend to relinquish their rights to withhold their shares.
Hesston responds that the issue is the legal effect of a transaction carried out by a fiduciary. Hesston’s position is that the principles of waiver are not involved because the brokerage firm(s) acted as fiduciaries for the tendering shareholders and that the exchange bank which had been designated by Hesston was entitled as a matter of law to assume that the fiduciaries were acting within their authority. The district court correctly agreed with Hesston.
Hesston relies on Sornberger v. Chesapeake & Ohio, 81 Md. App. 14, 566 A.2d 503 (1989), cert. denied 319 Md. 72 (1990), for the proposition that the erroneous surrender of shares by the shareholders’ nominee(s) precludes the shareholders from pursuing claims against the corporation. In that case, as in the present case, securities companies were the registered owners of some shares which were beneficially owned by individuals. Pursuant to a statutory notice of an impending merger and an offer of a liquidated amount for shares, securities companies surrendered the shares of some individuals and received payment for them. Attempts to repudiate the surrenders were refused by the corporation. The court upheld the corporation’s action and dismissed the claims which had been filed by the beneficial owners in the statutory appraisal proceeding.
The beneficial owners’ attempts were made pursuant to the Maryland appraisal statute, which provides for participation of “an objecting stockholder who has not received payment for his stock.” 81 Md. App. at 21 (quoting Md. Corps. & Ass’ns Code Ann. § 3-208 [1985]). The court rejected the argument that the statute should be interpreted to mean a stockholder who has not “ accepted or retained payment’ ” on the ground that Maryland case law requires that the statute be strictly construed. 81 Md. App. at 21. As an additional reason for excluding the beneficial owners, the court stated that the legal efficacy it accorded the fiduciary transfers was codified in Maryland under the Uniform Act for the Simplification of Fiduciary Security Transfers. The same provision has been adopted in Kansas as K.S.A. 17-4905, which provides:
“Except as otherwise provided in this act, a corporation or transfer agent making a transfer of a security pursuant to an assignment by a fiduciary:
(a) May assume without inquiry that the assignment, even though to the fiduciary himself or to his nominee, is within his authority and capacity and is not in breach of his fiduciary duties;
(b) May assume without inquiry that the fiduciary has complied with any controlling instrument and with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of the transfer; and
(c) It is not charged with notice of and is not bound to obtain or examine any court record or any recorded or unrecorded document relating to the fiduciary relationship or the assignment, even though the record or document is in its possession.”
With respect to the Maryland counterpart, the Court of Special Appeals of that state made the following observations:
“This provision plainly states that it is not a corporation’s duty, when accepting a transfer from a fiduciary, to verify that transfer with the principal. Such a requirement would not only be burdensome, but also it would defeat the whole purpose of a fiduciary relationship. Since the fiduciary is a representative of the principal’s interests in the transaction, the corporation is entitled to rely on the representations made by the fiduciary notwithstanding previous contrary indications by the principal. This court cannot impose a duty on the corporation which is wholly inconsistent with the [legislature’s] stated intent.” 81 Md. App. at 22.
The Maryland court concluded that the corporation had fulfilled its duty and that the beneficial owners of the shares “may not be heard to complain now for their fiduciaries’ errors.” 81 Md. App. at 23. We agree with the conclusion of the Maryland court. Although the decision of the Court of Special Appeals of Maryland is not controlling, it is persuasive.
Here, the tendering shareholders contend that Sornberger is distinguishable on the ground that its holding should be confined to a shareholder’s pursuit of appraisal rights. They concede that statutory appraisal rights are conditioned on retention of the stock, but argue that the requirement of ownership does not apply to their common-law claims against Hesston. They cite no authority for their position. If their argument were accepted, there would be no finality to shareholders’ quarrels with corporate operations. Shareholders could tender their shares, accept the cash benefit of the transaction, and ask the courts to referee in the hope that their gain would be increased.
K.S.A. 17-4905 controls; therefore, the district court’s dismissal of the claims of Jay Johnson, Green Valley Corp., Salinas Valley Corp., Santa Clara Valley Corp., Barry and Molly Swenson, and F.X. Fitzpatrick in their entirety was proper. The district court’s dismissal of the claims of John Meyer, Nicholas Halford, John Hemmer, and Robert Parlette to the extent their shares were surrendered was proper.
The dissenters also complain that the trial court concluded that all the stockholders were barred by the preclusive doctrines of collateral estoppel and res judicata from pursuing claims in this case. The district court’s conclusion of law ¶ 39 states: “Defendant stockholders are barred from challenging the fairness of the 1987 Merger Agreement by the doctrines of res judicata and collateral estoppel since they were either defendants in the Allied litigation, or privies to parties therein, and all claims regarding the 1987 Merger Agreement were dismissed with prejudice.”
Hesston correctly points out that there are no claims relating to the 1987 transaction in the present case. Even if there wei'e, the dissenters’ claims would have been barred under the district court’s alternative conclusion that claims relating to the 1987 merger are barred by the two-year statute of limitations. As Hes-ston further points out, the dissenters did not raise the statute of limitations as an issue on appeal. In any event, the district court still considered any claims made by the dissenters with respect to the 1987 merger and concluded that they had no merit.
The dissenters argue that the statutory appraisal proceeding provided for shareholders aggrieved by a cash-out merger is not their exclusive remedy. They, however, fail to identify a ruling by the district court which was adverse to their position.
The district court concluded, as a matter of law, that “[a] statutory appraisal proceeding is the exclusive remedy available to dissenting stockholders to contest the value of stock in a cash out merger.” (Emphasis added.) The district court did not conclude that dissenters’ claims of breach of contract and breach of fiduciary duty involved contesting the value of the stock or that dissenters were barred from pursuing those common-law claims. It appears that the district court considered the breach of contract and breach of fiduciary duty claims made by the dissenters to be separate and independent from the statutory appraisal procedure.
Dissenters next argue that the district court erred in concluding that there was no breach of contract by Hesston. As noted with respect to the jurisdictional issue, the Certificate (of Designations, Preferences and Rights of Preferred Stock) for $1.60 Preferred Stock, which was filed with the Kansas Secretary of State, has been treated in these proceedings as being contractual in nature. The district court cited Rothschild Intern. Corp. v. Liggett Group, 474 A.2d 133 (Del. 1984), as authority for this conclusion of law. The Delaware court stated that “[preferential lights are contractual in nature and therefore are governed by the express provisions of a company’s certificate of incorporation.” 474 A.2d at 136. The district court further concluded that the express provisions of the Certificate “govern the preferential rights of the $1.60 Preferred Stockholders.” A leading treatise states broadly that “the relation between the corporation and its stockholders is contractual in nature,” 11 Fletcher Cyc. Corp., Stock and Stockholders § 5083, p. 25 (1986 rev.), and that “[i]t is unquestioned that the redemption terms of preferred stock issues create a contract between the corporation and its shareholders.” 11 Fletcher Cyc. Corp., Stock and Stockholders § 5309, p. 687. The parties do not dispute this point.
This court has stated: “Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court.” Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 704, 810 P.2d 1154 (1991).
The Certificate provides in pertinent part:
“5. Except as provided in paragraph 6 below, the Corporation, at the option of the Board of Directors, may redeem all or, from time to time, part of the Series A Preferred at the prices per share set forth below plus, in each case, an amount equal to accrued and unpaid dividends thereon: ... If redeemed on or after March 16, 1985 . . . 25.00.
“The total amount payable upon such redemption is herein referred to as the ‘Redemption Price.’ Notice of every such redemption shall be mailed at least 30 days but not more than 60 days prior to the date designated for such redemption (herein called the ‘Redemption Date’) to the holders of record of the Series A Preferred so to be redeemed at their respective addresses as they appear on the books of the Corporation. . . .
“From and after the Redemption Date ... all dividends on the shares of the Series A Preferred designated for redemption in such notice shall cease to accrue, ... all rights of the holders of the Series A Preferred designated for redemption shall cease and terminate, except the right to receive the Redemption Price thereof upon the surrender of certificates representing the same, but without interest, . . . and the shares of the Series A Preferred designated for redemption shall not thereafter be transferred (except with the consent of the Corporation) on the books of the Corporation, and such shares shall not be deemed to be outstanding for any purpose whatsoever.
“6. If at any time the Corporation shall fail to pay full cumulative dividends when due on the Series A Preferred, thereafter and until such dividends shall have been paid or declared and set apart for payment, the Corporation shall not purchase or redeem any shares of Series A Preferred or shares of any other series of Preferred Stock ranking pari passu with the Series A Preferred or any shares of any Junior Preference Stock or Common Stock.
"Shares of Series A Preferred which have been redeemed or acquired by the Corporation or which have been converted into shares of Common Stock shall, upon compliance with any applicable provisions-of law, have the status of authorized and unissued shares of Preferred Stock and may be reissued as part of a new series of such Preferred Stock to be created by resolution or resolutions of the Board of Directors.”
Reduced to its essence, the dissenters’ argument is that the cash-out merger was equivalent to a redemption. The Certificate does not contain express provisions governing a cash-out merger. The Certificate provisions for redemption therefore control, and, by the terms of the Certificate, the corporation was required to pay $25 plus accrued and unpaid dividends per share of $1.60 Preferred Stock. The dissenters claim that the accrued and unpaid dividends total $11.20 so that they should receive $36.20 per share. The district court concluded that the unpaid dividends totaled $7.20.
Hesston argues that a cash-out merger is a merger and that the Certificate expressly provides that a merger is not one of the corporate events which requires payment of the redemption price. Hesston also contends that the Delaware Supreme Court, which this court generally finds persuasive on corporate matters, has rejected the argument made by the dissenters. See Rothschild, 474 A.2d 133.
In the Delaware case, Rothschild International Corp. brought a class action against Liggett on behalf of holders of certain preferred stock of Liggett. The class was to consist of the stockholders who tendered their preferred stock in response to the tender offer of $70 of the acquiring corporation (GM) and those who did not tender but were cashed out for the same price in the subsequent merger with the GM subsidiary that had been formed to acquire Liggett. Rothschild’s claims of breach of contract and breach of fiduciary duty against Liggett were “premised on a single assertion — that GM’s plan of acquisition was equivalent to a liquidation.” 474 A.2d at 135. The certificate provided that the stock could not be redeemed. 474 A.2d at 136 n.l. The court stated: “On appeal, [Rothschild] contends that the takeover of Liggett via the combined tender offer and merger in essence effected a liquidation of the company thus warranting payment ... of the $100 liquidation value set forth in Liggett’s charter.” 474 A.2d at 135. Rothschild’s theory was rejected because the Delaware court did not view the transaction as involving a liquidation of Liggett’s business. 474 A.2d at 135.
Rothschild made “two interrelated arguments: (1) that the economic effect of the merger was a liquidation of Liggett’s assets ‘just as if [Liggett] were sold piece meal to [GML]’; and (2) that any corporate reorganization that forcibly liquidates a shareholder’s interests is tantamount to a liquidation of the corporation itself.” 474 A.2d at 136. In rejecting the first argument, the court looked to the Fletcher treatise for a definition of liquidation and then determined that the plan of reorganization which had been chosen by the Liggett directors and shareholders did not come within “the well-defined meaning of that term.” 474 A.2d at 136. The court viewed the reorganization as an integration of Liggett with GM and seemed to place some significance in Liggett’s retaining its corporate identity. It also noted that an earlier Del-awai'e case held that a merger is not equivalent to a sale of assets.
“In so holding, the Court followed the well-settled principle of Delaware Corporation Law that ‘action taken under one section of that law is legally independent, and its validity is not dependent upon, nor to be tested by the requirements of other unrelated sections .under which the same final result might be attained by different means.’ ” Rothschild, 474 A.2d at 136 (quoting Orzeck v. Englehart, 195 A.2d 375, 378 [Del. 1963]).
In rejecting the second argument, the court simply observed that “minority stock interests may be eliminated by merger.” 474 A.2d at 136. Because a stockholder is charged with knowledge of this possibility, Rothschild could not successfully argue that the holders of the preferred stock “could reasonably expect to be paid the $100 liquidation preference in any circumstance effecting a total elimination of their investment in Liggett.” 474 A.2d at 137.
The Second Circuit Court of Appeals -had occasion a few years after Rothschild was decided to apply Delaware law in a closely aligned case, Rauch v. RCA Corp., 861 F.2d 29 (2d Cir. 1988). Rauch filed a class action complaint, challenging the acquisition of RCA Corp. by General Electric Company (GE) and its wholly owned subsidiary, Gesub, Inc. The merger agreement provided that all but one of the classes of RCA stock were converted to cash, Gesub merged with RCA, and Gesub common stock was converted into RCA common stock. The one class of stock which was not converted to cash was redeemed. 861 F.2d at 29-30.
Rauch owned shares of RCA $3.50 cumulative first preferred stock (Preferred Stock), one of the cashed-out stocks.
“[Rauch] claimed that the merger constituted a ‘liquidation or dissolution or winding up of RCA and a redemption of the [Preferred Stock],’ as a result of which holders of the Preferred Stock were entitled to $100 per share in accordance with the redemption provisions of RCA’s certificate of incorporation, that defendants were in violation of the rights of the holders of Preferred Stock as thus stated; and that defendants thereby wrongfully converted substantial sums of money to their own use.” 861 F.2d at 30.
The merger agreement compelled holders of Preferred Stock to sell their shares to RCA for $40. RCA’s Certificate of Incorporation stated a redemption price of $100 per share plus accrued and unpaid dividends. Rauch contended that the merger agreement “effected a redemption whose nature is not changed by referring to it as a conversion of stock to cash pursuant to a merger.” 861 F.2d at 30. The court concluded that Rauch’s argument was contrary to Delaware law.
The Court of Appeals stated:
“It is clear that under Delaware General Corporation Law, a conversion of shares to cash that is carried out in order to accomplish a merger is legally distinct from a redemption of shares by a corporation. Section 251 of the Delaware General Corporation Law allows two corporations to merge into a single corporation by adoption of an agreement that complies with that section. Del. Code Ann. tit. viii, § 251(c) (1983). The merger agreement in issue called for the conversion of the shares of the constituent corporations into cash. The statute specifically authorizes such a transaction:
‘The agreement shall state . . . the manner of converting the shares of each of the constituent corporations into shares or other securities of the corporation surviving or resulting from the merger or consolidation and, if any shares of any of the constituent corporations are not to be converted solely into shares or other securities of the surviving or resulting corpora tions, the cash . . . which the holders of such shares are to receive in exchange for, or upon conversion of such shares . . which cash . . . may be in addition to or in lieu of shares or other securities of die surviving or resulting corporation. . . .’
Id. § 251(b) (emphasis added). Thus, the RCA-GE merger agreement complied fully with the merger provision in question, and plaintiff does not argue to the contrary.
“Redemption, on the other hand, is governed by sections 151(b) and 160(a) of the Delaware General Corporation Law. Section 151(b) provides that a corporation may subject its preferred stock to redemption “by the corporation at its option or at the option of the holders of such stock or upon the happening of a specified event.’ Del. Code Ann. tit. viii, § 151(b) (1983). In this instance, the Preferred Stock was subject to redemption by RCA at its election.” 861 F.2d at 30-31.
In its decision dismissing Rauch’s complaint, the district court observed that accepting Rauch’s argument would have the effect of abrogating the conversion provisions in § 251. The Court of Appeals expanded the discussion:
"Delaware courts have long held that such a result is unacceptable. Indeed, it is well settled under Delaware law that ‘action taken under one section of [the Delaware General Corporation Law] is legally independent, and its validity is not dependent upon, nor to be tested by the requirements of other unrelated sections under which the same final result might be attained by different means.’ [Citation omitted.] The rationale of the doctrine is that the various provisions of the Delaware General Corporation Law are of equal dignity, and a corporation may resort to one section thereof without having to answer for the consequences that would have arisen from invocation of a different section. See Hariton v. Arco Electronics, Inc., 41 Del. Ch. 74, 77, 188 A.2d 123, 125 (Del. 1963) (“ ‘the general theory of the Delaware Corporation Law [is] that action taken pursuant to the authority of the various sections of that law constitute acts of independent legal significance and their validity is not dependent on other sections of the Act’ ”) [citation omitted].” 861 F.2d at 31.
Rothschild was said by the Court of Appeals to be “particularly instructive” on the doctrine of independent legal significance. 861 F.2d at 32. Furthermore, the Court of Appeals stated:
“The instant action presents a most analogous situation. [Rauch] claims that the Gesub-RCA merger was, in effect, a redemption. However, there was no redemption within the well-defined meaning of that term under Delaware law, just as there had been no liquidation in [Rothschild]. Thus, because the merger here was permitted by law, defendants legitimately chose to structure their transaction in the most effective way to achieve the desired corporate reorganization, and were subject only to a similar duty to deal fairly.” 861 F.2d at 32.
In the present case, the district court concluded that the 1989 merger constituted neither a redemption nor a liquidation. On appeal, the dissenters take issue with this conclusion, stating that they contend that one function is tantamount to another, not that one operation actually is another.
In other pertinent conclusions of law, the district court stated:
“14. Where mergers are permitted, stockholders may be deprived of their preferential rights by merger and ‘(stockholders are charged with knowledge of this possibility at the time they acquire their shares.’ Rothschild, supra, 474 A.2d at 136-37 [citations omitted].
“15. ‘(A)ction taken under one section of (the corporate law statute) is legally independent, and its validity is not dependent upon, nor to be tested by the requirements of other unrelated sections under which the same final result might be attained by different means.’ Rothschild, supra, 474 A.2d at 136 [citations omitted].
“16. There are significant differences between a cash out merger and a redemption. In addition to the different statutory requirements, the source of the funds for each transaction is different. In a cash out merger, the funds to pay for the stock [are] provided by a third party, i.e. Fiat. In order to have a redemption, the funds to pay for the stock would have come from the corporation’s own treasury, i.e. Hesston.
“17. Pursuant to the Certificate and applicable Kansas law, K.S.A. 17-6603(d), Hesston could not lawfully redeem its $1.60 Preferred Stock because it had no earnings, no surplus, a negative net worth, and its dividends remained unpaid. K.S.A. 17-6603(d); Certificate p. 6. The public policy behind this statute is to prevent a corporation from depleting its assets by redeeming its own shares at the expense of its creditors. [Citations omitted.]
“18. There is no evidence that Hesston acquired any debt or equity, representing the amount of money to be paid the $1.60 Preferred Stockholders as a result of the July 1989 Merger Agreement. Even if Hesston acquired debt or equity, it is of no legal assistance to defendant stockholders because such debt or equity could only have been a direct result of the Merger Agreement itself and could only occur after the merger was consummated. Any acquisition of debt or equity after the completion of the 1989 Merger Agreement could not provide a legally sufficient basis to re-characterize the merger as a redemption.
“19. . . . The Merger Agreement required Fiat [to] provide the cash funds to pay each stockholder $12.50 per share and it did so. The fact that Hesston may take over the funds remaining in that account at some unspecified time in the future cannot provide a basis to recharacterize this transaction as a redemption.
“20. A corporation may legitimately choose to structure a transaction in the most effective way to achieve the desired corporate reorganization subject only to a duty to deal fairly. Rauch v. RCA Corporation, 861 F.2d 29 (2d Cir. 1988).”
The dissenters do not cite any cases in which the argument they are making has been the basis for a decision. Their approach, therefore, is to advocate distinguishing Rothschild and Rauch on factual and legal grounds and to advocate construing the language of the Certificate in their favor, contending that there is no legally significant difference between redemption and a cash-out merger.
The dissenters would factually distinguish Rothschild and Rauch on the ground that they do not involve contractual rights in the Certificate. There is no argument, however, that they do not involve contractual rights. The only difference is that the rights in Rothschild and Rauch were embodied in the corporations’ certificates of incorporation and in the present case they are embodied in the Certificate of Designation, Preferences and Rights of Preferred Stock.
The dissenters also contend that express provisions of the Certificate override the doctrine of independent legal significance by equating a voluntary liquidation or winding up with a redemption. The dissenters do not specify which Certificate provision or provisions they rely on. It appears that the following provision is the one to which they refer:
“4. In the event of dissolution, liquidation or winding up of the Corporation the holders of the Series A Preferred shall be entitled, after the debts of the Corporation shall have been paid to receive out of the assets remaining (i) if such dissolution, liquidation or winding up is voluntary, the applicable redemption price per share as determined under paragraph 5 hereof, or (ii) if such dissolution, liquidation or winding up is involuntary, twenty-five dollars ($25.00) per share, together, in either case, with all dividends thereon accrued or in arrears, whether or not earned or declared, before any payment is made or assets set apart for payment to the holders of any Junior Preference Stock or the Common Stock and shall be entitled to no further payments or distributions. If, upon dissolution, liquidation or winding up of the Corporation, the assets remaining after the payment of all debts of the Corporation shall be insufficient to pay the full amount due to holders of the Series A Preferred and to holders of other Preferred Stock of the Corporation which ranks pari passu with the Series A Preferred with respect to payments upon dissolution, liquidation or winding up of the Corporation, the assets so remaining shall be divided ratably among the holders of the Series A Preferred and the holders of such other pari passu Preferred Stock of the Corporation then outstanding.
“Merger or consolidation with one or more corporations shall not constitute dissolution, liquidation or winding up of the Corporation.”
In short, a dissolution, liquidation, or winding up of Hesston will be treated as if it is a redemption for the purpose of setting the price for Preferred Stock, but a merger or consolidation cannot constitute a dissolution, liquidation, or winding up. If this provision is construed as overriding the doctrine of independent legal significance with regard to dissolution, liquidation, or winding up and redemption, it concurrently embraces the doctrine with regard to merger or consolidation and dissolution, liquidation, or winding up.
In the courts of Kansas, the doctrine of independent legal significance has not enjoyed the prominence, at least by name, that it has in Delaware. Our research disclosed only one recent Kansas case in which it was referred to by name. In In re Trusteeship of the Will of Daniels, 247 Kan. 349, 353-54, 799 P.2d 479 (1990), the court discussed theories which had been used to validate pour-over trusts before the Uniform Testamentary Additions to Trusts Act was enacted. The court stated: “Incorporation by reference and independent legal significance were the doctrines most often adopted to validate the pour-over provisions. . . . Shulsky v. Shulsky, 98 Kan. 69, 72-73, 157 Pac. 407 (1916).” 247 Kan. at 353-54. There certainly is no suggestion in the court’s remarks that the principle of independent legal significance is not an accepted concept in Kansas jurisprudence. Nor is there anything to suggest that it should not be applied in an appropriate context.
The dissenters want the court to disregard Rothschild and Rauch because those decisions turn on application of the doctrine of independent legal significance. As noted, the principle is not an entirely foreign one to the courts of this state. Furthermore, it would seem to be sound practice in the present case to appropriate the doctrine from Rothschild and Rauch, which involved many of the Delaware statutes that served as the models for the Kansas statutes involved in the present case. In Rauch in particular, the court identified and examined certain provisions of the Delaware General Corporation Law. Sections 151 and 160, which govern redemption, and § 251, which governs merger, were discussed. 861 F.2d at 31. The corresponding sections in the Kansas Corporation Code are K.S.A. 1993 Supp. 17-6401, K.S.A. 17-6410, and K.S.A. 1993 Supp. 17-6701. The Kansas Comment to each of these sections states, respectively, that the Kansas provision is “nearly identical” to the Delaware model, that the Delaware provision was adopted in Kansas, and that there is “substantially no difference” between the Kansas and Delaware provisions. The principle of independent legal significance as applied in Rothschild and Rauch simply maintains the separate identities which the statutes codify for these corporate functions. Where Kansas has enacted the statutes, there is no reason not to employ the principle to safeguard the separate identities of the operations.
The dissenters must concede that merger and redemption are governed by separate and independent statutory provisions. Nonetheless, they argue that the Hesston cash-out merger and redemption should be treated as sharing precise identity because the purpose and effect of one is indistinguishable from those of the other. According to the dissenters, both transactions accomplish elimination of public ownership. They urge the court to accept the assertion that the only distinction between a cash-out merger and a redemption is the source of funds. In the present cash-out merger, the cash which was to be given in exchange for the tendered Certificates of $1.60 Preferred Stock came from Fiat through the shell subsidiary which it formed for the merger. In a redemption, the cash which would be exchanged for the tendered Certificates would be provided by Hesston, the corporation which issued the stock.
It is the dissenters’ contention that the source of the funds to be exchanged for the tendered Certificates is insignificant. Their theory is that because the surviving corporation acquires the liabilities of the merging shell subsidiary, Hesston acquired in the merger the obligation to pay the price per share promised in the merger. The fact remains, however, that the money was supplied by Fiat, not by Hesston. Rather than being an insignificant detail, the differing sources of funds for a cash-out merger and a redemption seems to lie i-ight at the center of the matter. K.S.A. 17-6603 and K.S.A. 17-6604 prohibit a corporation from depleting its assets by retiring its own stock at the expense of creditors. In Hesston’s financial condition, it could not lawfully have redeemed the $1.60 Preferred Stock. It was only the infusion of cash by Fiat that made a tender offer possible. Hesston s acquisition of the cash and liabilities of the shell subsidiary as an incident of the merger does not alter the fundamental importance of the source of the funds.
The dissenters also argue that the Certificate is ambiguous with respect to the consequences of a cash-out merger on the rights of the $1.60 Preferred shareholders. They urge that the ambiguity must be resolved in their favor because they are not the drafters of the Certificate.
The dissenters’ contention of ambiguity amounts to the simple proposition that the term “cash-out merger” does not appear in the Certificate. As the Delaware court said in a slightly different context, a stock purchaser is “charged with knowledge of the possible defeasance of its stock interests upon a merger.” 474 A.2d at 137. Neither notice of the “possible defeasance” nor a procedure for handling it need be included in the Certificate. The absence of a Certificate provision for a cash-out merger does not create an ambiguity in the Certificate requiring its redemption provision to be interpreted in the dissenters’ favor.
The rights of the owners of $1.60 Preferred Stock in the case of a merger are stated in the following paragraph from the Certificate:
“10. In case of any consolidation of the Corporation with or merger of the Corporation into another corporation, or in case of any sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Corporation to another corporation, or in case of any reorganization of the Corporation, the holder of each share of Series A Preferred then outstanding shall have the right thereafter to convert such share into the kind and amount of shares of stock and other securities and property which would have been deliverable to such holder upon such consolidation, merger, sale, conveyance, exchange, transfer or reorganization if such holder had converted his shares of Series A Preferred into Common Stock immediately prior to such consolidation, merger, sale, conveyance, exchange, transfer or reorganization.”
The dissenters’ argument seems to start with the premise that a cash-out merger, in which the shareholders’ interests in the corporation are extinguished, is not included in the Certificate par agraph governing rights and procedures in the event of a merger. A cash-out merger, the argument continues, therefore is not a merger within the meaning of the Certificate. It is not a merger, in particular, within the meaning of the proviso that “[m]erger . . . shall not constitute dissolution, liquidation or winding up of the Corporation,” which modifies the Certificate paragraph governing rights and procedures in the event of dissolution, liquidation, or winding up. A cash-out merger, the argument concludes, therefore entitles the shareholders to the redemption price as if the cash-out merger were a dissolution, liquidation, or winding-up. We do not agree.
The obvious shortcoming in this argument is that once the contract language has been examined, we have come full circle back to the attempt to equate the cash-out merger with redemption or liquidation. Under the reasoning of Rothschild and Rauch, that leap cannot be made. In Rothschild, the Delaware court expressly concluded that it was not reasonable for the shareholders to expect to be paid the liquidation preference in any and all circumstances effecting a total elimination of their investment in the corporation. By their arguriient, the dissenters make the same issue dispositive of the breach of contract issue in the present case.
The final issue raised by the dissenters is whether the Hesston Board of Directors breached its fiduciary duty to the dissenting shareholders. The dissenters contend that the Hesston board of directors breached its fiduciary duty to them by failing to adequately and carefully consider all factors relevant to an informed decision whether to cash them out. This court has stated that “[i]t is the established rule in this state that a director of a corporation owes a high fiduciary duty to the other stockholders of the corporation.” Sampson v. Hunt, 222 Kan. 268, 271, 564 P.2d 489 (1977). The district court looked to 19 Am. Jur. 2d, Corporations § 2566, for a statement of fiduciary responsibility in the present circumstances:
“In the context of acquisitions, divestitures, and other reorganizations, both management and majority shareholders owe to tire corporation and to the minority shareholders thereof a duty to exercise good faith, care, and diligence to make the property of the corporation produce the largest possible amount, to protect the interest of the holders of minority stock, and to secure and pay over to them their just proportion of the income and of the proceeds of corporate property. These duties have particular emphasis in the context of a ‘cash-out’ or ‘freeze-out’ merger, which is a merger effected for no valid business purpose and resulting in the elimination of one or more minority shareholders. . . .
“In cases of corporate merger, there is no violation of fiduciary duty owed by dominant stockholders to public stockholders if there has been neither fraud, selfdealing nor price manipulation, and alternatives afforded to public shareholders are a fair price fairly determined or a statutory right to appraisal.”
The dissenters contend that the district court recognized that the directors’ conduct was inequitable but excused it because it was legally possible or economically justifiable. The inequity, according to the dissenters, seems to be the defeat of the expectations of the holders of $1.60 Preferred Stock. The inequity is that the $12.50 offered for $1.60 Preferred Stock was not a fair price and was not fairly determined. Aside from the contractual redemption price argument which already has been discussed, the basis for the dissenters’ claim that $12.50 is not fair and was not fairly determined seems to be that the transaction was accomplished in the absence of certain procedures intended to protect their interests.
In connection with the 1987 merger agreement proposal submitted by Fiat, Hesston secured an independent fairness evaluation, designated an audit committee to study the merger proposal and recommend a course of action, and employed counsel to advise the audit committee and the board of directors. None of these steps was repeated in 1989. The district court made the following pertinent findings of fact:
“59. In April 1989, . . . a Fiat affiliate proposed to Hesston an Agreement and Plan of Reorganization, which was substantially the same as the 1987 proposed Merger Agreement. ...
“60. Since Donaldson Lufkin’s fairness opinion in 1987, Hesston had sustained additional significant losses, resulting in continuing deterioration of stockholder equity. As of December 31, 1988, the negative net worth of Hesston was $78.7 million as compared to $18.2 million at December 31, 1986.
“61. Hesston requested [retained counsel] to review the 1989 merger proposal and to advise whether another fairness opinion was required in view of the 1989 circumstances. [Counsel] concluded that in light of Hes-ston’s worsened financial condition, the fact that Fiat continued to be committed to pay $12.50 for any outstanding shares, the fact that the merger proposal remained substantially tire same as proposed in 1987, and the cost of such an opinion ($250,000), a new fairness opinion would be redundant and was not required.
“63. On April 20, 1989, the Hesston Board of Directors (Richard F. Hrdlicka, James Gaeddert and Lodovico Crescenzi) again considered the Fiat proposal. After discussing Hesston’s worsened financial condition, Fiat’s extensive open market purchases at prices of $12.50 or less, and the decision of Allied to accept $12.50 per share in March 1989, after two years of litigation, the Board determined that the $12.50 per share merger price was fair from a financial point of view. After full consideration of the financial and legal considerations, the Hesston Board of Directors approved the Merger Agreement and recommended that the $1.60 Preferred Stockholders vote for approval of the Merger Agreement because it was in the best interest of Hesston and its stockholders and the price offered by the merger was fair.
“64. . . . The Hesston Board of Directors clearly felt that the worsened financial condition of the company made the expenditure of funds for independent investigation and advice to be irresponsible and a redundant exercise in light of the 1987 advice it had received. The Board felt that the incurring of such expense was not in the best interests of shareholders, despite the independent advice it would have provided, and would have further depleted the limited financial resources of Hesston Corporation.”
The district court’s pertinent conclusions of law on this issue include the following:
“27. It is not necessary for a corporation to show a ‘valid corporate purpose’ for eliminating minority stockholders. The business purpose requirement was eliminated in Delaware in Weinberger v. UOP, 457 A.2d 701, 711 (Del. 1983).
“28. A corporation is required to disclose all material facts relevant to a merger. Bershad v. Curliss-Wright Corp., 535 A.2d 840, 846 (Del. 1987).
“29. The defendants have not stated, or proven, a separate claim for breach of fiduciary duty based on a claim of de facto redemption because it is controlled by the contractual terms of the Certificate of Designations. [Citations omitted.]
“30. Applying the above standards of law to the facts of this case, the Court finds that there has been no violation of fiduciary duty on the part of the Hesston Board of Directors in approving either the 1987 or 1989 Merger Agreements. The Court finds neither fraud, selfdealing nor price manipulation have occurred. The Court finds that the failure on the part of the Board of Directors to obtain an independent analysis and evaluation of the 1989 Merger Agreement did not constitute a breach of fiduciai-y duty under the special circumstances of this case. The decision of the Board involved a rational balancing of the known financial facts against the considerable expenses ($250,000.00) of obtaining an independent analysis. . . .
“31. The Court further finds the fact that the Board of Directors of I-lesston Corporation failed to obtain an independent fairness evaluation as to the 1989 Merger Agreement to be offset by the statutory right of appraisal which the minority shareholders enjoyed under Kansas corporate law. As noted above, this Court has previously determined through an appraisal proceeding that the fair value of the $1.60 Preferred shares was $4.90. Therefore the Court finds that the $12.50 offered as a part of the 1989 Merger Agreement was a fair price for the minority shareholders.
“33. . . . [Tjhere was in fact in this case a legitimate business purpose [for the merger]. That purpose was to allow Hesston Corporation to participate in the joint venture with J.I. Case for engineering and manufacturing hay and forage equipment on the terms mandated by Case.
“34. . . . The Board’s recommendation and approval of the 1987 and 1989 Merger Agreements], including the $12.50 cash-out price contained therein, was fair and reasonable in light of all relevant circumstances. Neither Hesston, nor its directors, breached any fiduciary duties to the stockholders.”
The dissenters have furnished scant authority to support their argument. They cite Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264 (2d Cir. 1986); Rabkin v. Philip A. Hunt Chemical Corp., 498 A.2d 1099 (Del. 1985); and Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985), as cases with facts similar to those in the present case in which fiduciary responsibilities were held to have been breached. These cases, however, are not factually similar to the present case.
In Rabkin, shareholders challenged the merger of Hunt with its majority stockholder, Olin Corp. When Olin bought 63.4% of the outstanding shares of Hunt’s common stock on March 1, 1983, Olin agreed to pay $25 per share if Olin acquired the remaining stock within one year. 498 A.2d at 1101. A few weeks after the one-year period elapsed, Olin and Hunt issued a joint press release announcing a cash-out merger. 498 A.2d at 1102. Olin’s acquisition of the remaining shares was to be for $20 per share. The outside financial advisor, Merrill Lynch, advised that $20 per share was fair, “but that the range of values for the common stock was probably $19 to $25 per share.” 498 A.2d at 1103. Outside directors recommended that Olin consider increasing the price, Olin refused, and the outside directors capitulated. 498 A.2d at 1103. In these circumstances, the Delaware court agreed with the minority shareholders that $20 per share was inadequate and that Olin unfairly manipulated the timing of the merger to its advantage. 498 A.2d at 1107! In contrast, in the present case the offer of $12.50 per share remained stable from the time of the 1987 merger despite Hesston’s worsening financial condition.
Smith bears little factual similarity to the present case:
“On the record before us, we must conclude that the Board of Directors did not reach an informed business judgment on September 20, 1980, in voting to ‘sell’ the Company for $55 per share pursuant to the Pritzker cash-out merger proposal. Our reasons, in summary, are as follows:
“The directors (1) did not adequately inform themselves as to Van Gor-kom’s role in forcing the ‘sale’ of the Company and in establishing the per share purchase price; (2) were uninformed as to the intrinsic value of the Company; and (3) given these circumstances, at a minimum, were grossly negligent in approving the ‘sale’ of the Company upon two hours’ consideration, without prior notice, and without the exigency of a crisis or emergency.
“. . . No written summary of the terms of the merger was presented; the directors were given no documentation to support the adequacy of $55 price per share for sale of the Company; and the Board had before it nothing more than Van Gorlcom’s statement of his understanding of the substance of an agreement which he admittedly had never read, nor which any member of the Board had ever seen.” 488 A.2d at 874.
In Hanson Trust, the Court of Appeals observed that the directors’ actions were not as grossly negligent as the actions of the directors in Smith, but they did fail “to take many of the affirmative directorial steps that underlie [a] finding of due care” under New York law. 781 F.2d at 275. The court stated that
“the SCM directors, in a three-hour late-night meeting, apparently contented themselves with their financial advisor’s conclusory opinion that the option prices were ‘within the range of fair value,’ although had the directors inquired, they would have learned that Goldman Sachs had not calculated a range of fairness. There was not even a written opinion from Goldman Sachs as to the value of the two optioned businesses. [Citation omitted.] Moreover, the Board never aslced what the top value was or why two businesses that generated half of SCM’s income were being sold for one third of the total purchase price of the company under the second LBO merger agreement, or what the company would look like if the options were exercised. [Citation omitted.] . . . Also, as was noted in Van Gorkom, the directors can hardly substantiate their claim that Hanson’s efforts created an emergency need for a hasty decision, given that Hanson would not acquire shares under the tender offer until September 17. [Citation omit ted.] ... In short, the SCM directors’ paucity of information and their swiftness of decision-making strongly suggest a breach of the duty of due care.” 781 F.2d at 275.
In contrast with Rabkin, Smith, and Hanson Trust, the merger in the present case was not the product of a hasty decision. It was not railroaded right by uninformed directors. Nor was the tender offer price per share in the lower range of values for the $1.60 Preferred Stock. Rabkin, Smith, and Hanson Trust were marked by the absence of directors’ due care. In the present case, care was exercised in connection with the 1987 phase of Fiat’s acquisition of Hesston. From that point to the inexorable takeover in 1989, the financial condition of Hesston worsened, but the dissenters have not shown that the economic slide or any other corporate circumstance was a counterindicator for the 1989 cash-out of preferred stock. We find no support for the dissenters’ claim of Hesston’s failing to consider all factors with a showing of any neglected factors. Nor have the dissenters seriously suggested that Hesston’s 1989 circumstances presented any realistic options other than merger.
In its cross-appeal, Hesston contends that the dissenters and their counsel acted in violation of K.S.A. 1993 Supp. 60-211 in continuing to pursue their counterclaims after they should have known there was not any factual or legal support for their allegations. Hesston asserts that its counsel brought Rothschild and Rauch to the attention of the dissenters’ counsel in April 1990, that they ignored the legal authority, and that they failed to produce any of their own. Then, according to Hesston, the dissenters refused to reexamine or relinquish their position when discovery yielded no factual basis for their claim.
In August 1991, at the time of the trial of this matter, Hesston filed a motion to assess attorney fees and expenses as costs or sanctions against the dissenters. It is recited in the motion that it is pursuant to K.S.A. 60-2007(b) and 60-211. The district court conducted a hearing on the motion and, in May 1992, issued a lengthy written denial. On appeal, Hesston focuses exclusively on K.S.A. 1993 Supp. 60-211.
The dissenters state that the standard for appellate review is abuse of discretion. Hesston contends that because the dissenters did not present evidence at trial, there is here no dispute in the factual details or testimony. For this reason, Hesston relies on Giblin v. Giblin, 253 Kan. 240, 254, 854 P.2d 816 (1993), and argues that the district court’s decision is to be reviewed de novo.
In Giblin, the court reviewed the rules applicable here. It quoted the principle that the appellate court may determine de novo what the facts establish where the controlling facts are based on written or documentary evidence, 253 Kan. at 253, and followed it with the proviso that where oral testimony has been heard, de novo determination of what the facts establish generally is not appropriate. 253 Kan. at 253. In Giblin, however, where very brief uncontroverted oral testimony had been given by one witness, the court concluded that the circumstances did not preclude de novo review. 253 Kan. at 253-54. In contrast, in the present case the district court heard several days of testimony from trial witnesses. Thus, in the present case, the appellate court’s function is to determine whether substantial competent evidence supports the district court’s finding that the dissenters had reasonable bases in fact for their claims. See 253 Kan. at 252.
In its memorandum' decision denying the motion for sanctions, the district court referred to Reyna v. General Group of Companies, 15 Kan. App. 2d 591, 814 P.2d 961, rev. denied 248 Kan. 996 (1991), as “[t]he most helpful current analysis of Kansas law.” From Reyna, the district court derived its “two-part analysis addressing whether a reasonable basis in fact for the claim existed at the time it was made and whether the claim was pursued in good faith.” 15 Kan. App. 2d 591, Syl. ¶ 6. After reviewing the theories of the parties and the evidence, the district court concluded as follows:
“Thus, while it is clear to me that Hesston Corporation should prevail on the merits of this case, I do find that the defendant stockholders have been able to raise, even through the evidence presented nearly exclusively by Hesston Corporation, bona fide issues with respect to the manner in which the 1989 merger agreement was conducted. While these arguments could have been better supported, in the Court’s opinion there was a good faith basis for their presentation. to the Court.”
On appeal, Hesston argues that this court’s decision in Fankhauser v. Bank IV Emporia, 251 Kan. 217, 833 P.2d 1002 (1992), supplants Reyna, on which the district court relied. Hesston con tends that Fankhauser implemented the legislature’s 1986 changes to K.S.A. 60-211, and among those changes was the removal of the district court’s discretion. Hesston argues that the district court is required to impose sanctions where a violation of K.S.A. 1993 Supp. 60-211 has been shown. After quoting the current and earlier versions of 60-211, this court stated:
“[P]rior to the 1986 amendment of K.S.A. 60-211, a court was empowered to levy sanctions against an attorney who willfully violated the statute but only where the attorney was found to have acted knowingly and in bad faith. Even if the requisite findings were made, the court had discretion as to whether or not to impose sanctions. The 1986 statutory amendments substantially altered the operation of the statute. Findings of willful and knowing conduct and bad faith by the attorney were no longer necessary, and the imposition of sanctions was no longer a matter of judicial discretion.” 251 Kan. at 219.
The inquiry, therefore, is simply whether the dissenters and their counsel violated K.S.A. 1993 Supp. 60-211. The statute provides in pertinent part:
“Every pleading, motion and other paper provided for by this article of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, and the attorney’s address and telephone number shall be stated. . . . The signature of a person constitutes a certificate by the person that the person has read the pleading; that to the best of the person’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not imposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the.other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees.”
The basis for Hesston’s argument relating to the claim for breach of contract lies in the requirement of 60-211 that claims be “warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” Central to the dissenters’ breach of contract claim is their theory that the cash-out merger is the functional equivalent of redemption. Hes-ston argues that, far from being warranted by existing law, this premise is contrary to all existing corporate law. It appears that all existing corporate law consists of Rothschild and Rauch. The dissenters’ position is that the law was undecided in Kansas, the contract on which their claim was based was unique and required construction under Kansas law, and the applicability in Kansas of the doctrine of independent legal significance which was a factor in the outcomes of Rothschild and Rauch was undetermined. Even if not warranted by existing law, their claims seem to have been warranted by a good faith argument that the Kansas court should modify the approach taken under Delaware law.
Hesston reiterates that there was no legal authority for the dissenters’ position. This, of course, cannot be the test for a violation of 60-211. Issues of first impression will arise in Kansas which have not been litigated elsewhere or which have not been litigated widely. Litigants and creative advocates must not be prevented from developing new theories or presenting new causes of action in the courts of this state merely because they are untested or have not been received favorably in some other jurisdiction. Where the weight of authority is overwhelmingly unfavorable to a litigant’s position or there is controlling authority against it, there may be a question whether the claim is warranted by a good faith argument for extension, modification or reversal. Neither of those circumstances is presented here.
The dissenters point out that Hesston failed to file a dispositive motion based on Rothschild and Rauch. This should not be a test for entitlement to sanctions any more than the dissenters’ lack of legal authority should be a test for a violation of 60-211. It is interesting, though, why Hesston thinks the dissenters should have capitulated upon being made aware of Rothschild and Rauch when it did not attempt to circumvent trial on this issue by filing such a motion.
Hesston’s argument with regard to the claim for breach of fiduciary duty is less clear-cut than its argument on the breach of contract. Hesston complains that there is no reasonable basis in fact for the claim. There seem to be two parts to its argument.
First, according to Hesston, the conduct which the dissenters complained about is blameless conduct. The district court did not see it quite that way. Although concluding that fiduciary duties had not been breached, the district court recognized that tissue-thin ice had been skated on:
“[A]t the time the shareholders asserted the claims against Fiat, the Court believes that a strong argument could be made that the influence of Fiat was so pervasive that by 1989 the Hesston Corporation Board of Directors had become a virtual alter ego of Fiat management. The fact remains that the Hesston Corporation Board did not obtain independent financial consultation as to the wisdom of the 1989 merger agreement, and did not follow the provisions of Kansas law with regard to the holding of annual meetings and did not precisely follow the method for selection of board members when preferred dividends became in arrears. The Court found, after hearing all of the evidence concerning the matter, that there were good and sufficient reasons for the course of conduct of the Hesston Corporation Board, and that its fiduciary duty to its shareholders, both majority and minority, was not breached by their facial failure to follow customary practices in the financial and corporate world. The Court found that the financial exigencies of Hesston Corporation in 1989 were so extreme that entering into the merger agreement at that time represented a wise and prudent course of action. But saying this does not mean that the minority shareholders did not have a point about the intimate relationship between Fiat and Hesston Corporation, or about its departure from the norms of usual practice and, indeed, past Hesston Corporation practices in obtaining independent financial advice, holding corporate meetings, and keeping its shareholders notified.”
Second, according to Hesston, the dissenters did not establish a causal link between the fiduciary shortcomings and the amount they claimed in damages, $36.20 per share. We fail to see what significance this has on the issue of sanctions. There was no breach established; the issue of damages was not reached. In any event, the dissenters’ theory was that they were contractually entitled to $36.20 per share. Any action taken by Hesston which reduced their entitlement was, according to the dissenters, in breach of its fiduciary duties to the shareholders. Thus, the computation of damages was the same for both claims.
The district court gave careful consideration to the arguments made by Hesston and concluded that the dissenters presented genuine issues of fact and law as to the conduct of the 1989 merger. On appeal, Hesston has added nothing to its arguments which convinces this court to depart from the decision reached by the district court. We conclude there was substantial competent evidence to support the district court’s finding that neither the dissenters nor their counsel violated K.S.A. 1993 Supp. 60-211.
We tend to expect a great deal from our district court judges and those who assist them. We seldom acknowledge a job well done. We would be remiss if we did not acknowledge the excellent job done by Judge Richard B. Walker in the present case.
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The opinion of the court was delivered by
Moritz, J.:
We granted review in this declaratory judgment action to consider a unique contract question involving three parties, one of which entered into two separate “all-requirements” contracts, agreeing to purchase all of its wholesale electricity needs from each of the other two parties. The district court ruled in favor of the supplier that entered into the first all-requirements contract, and tire Court of Appeals reversed the district court.
Simply stated, the parties have presented the court with two seemingly irreconcilable contracts. Nevertheless, we are not asked to determine whether any party breached its obligations under either contract, but to consider which party has superior rights under the competing contracts. We conclude that under the facts of this case, the party that chose to enter into two temporally overlapping all-requirements contracts must meet its obligations under its contract with the first supplier before it may comply with any obligations under its contract with tire second supplier. Consequently, we reverse the Court of Appeals’ decision and affirm the district court’s judgment.
Factual and Procedural Background
Prairie Land Electric Cooperative, Inc. (Prairie Land) purchases wholesale electricity from multiple suppliers and distributes that electricity to retail consumers within a certified service area in northwest and north central Kansas. The Kansas Corporation Commission establishes the boundaries of Prairie Land’s certified service area. Within its certified service area, Prairie Land’s distribution system consists of all the “facilities, transmission lines, distribution lines and substation equipment as owned and operated by Prairie Land.” The dispute in this case arises from Prairie Land’s decision to enter into temporally overlapping, long-term all-requirements contracts with two different wholesale electricity suppliers.
The Sunflower Contract
Nearly 50 years before the current litigation arose, Prairie Land entered into an all-requirements contract with Sunflower Electric Power Corporation (Sunflower). The Sunflower Contract, entered into in February 1958, remains in effect until April 2021 and in relevant part provides:
“1. General. [Sunflower] shall sell and deliver to [Prairie Land] and [Prairie Land] shall purchase and receive from [Sunflower] all electric power and energy ivhich [Prairie Land] shall require for the operation of [Prairie Land’s] system to the extent that [Sunflower] shall have such power and energy available, provided, however, that [Prairie Land] shall have the right to continue to purchase electric power and energy under any existing contract or contracts with a supplier other than [Sunflower] during the remainder of the term thereof. [Prairie Land] shall terminate, if [Sunflower] shall, with tire approval or at the direction of the Administrator of tire Rural Electrification Administration (hereinafter called the ‘Administrator’), so request, any such existing contract or contracts with a supplier other than [Sunflower] at such times as it may legally do so, provided [Sunflower] shall have sufficient electric power and energy available for [Prairie Land].” (Emphasis added.)
In a letter dated June 1958, Sunflower acknowledged that Prairie Land continued to purchase some of its energy requirements from the Western Light and Telephone Company (Centel). In the letter, Sunflower advised Prairie Land it was “agreeable ... to permitting [Prairie Land] to continue purchasing some of its electric power and energy requirements from [Centel], solely for the purpose of supplying the power and energy requirements of those portions of your distribution system which are presently being served by [Centel].” Sunflower later agreed to permit Prairie Land to purchase power from Centel to serve a new delivery point in Rooks County. In doing so, Sunflower advised Prairie Land that Sunflower did not have the capacity to provide power to that particular delivery point.
The KEPCo Contract
In September 1977, Prairie Land entered into a second all-requirements contract with Kansas Electric Power Cooperative, Inc. (KEPCo). The KEPCo Contract remains in effect until December 31, 2020, and in relevant part after its August 16, 1978, amendment, provides:
“1. General. [KEPCo] shall sell and deliver to [Prairie Land] and [Prairie Land] shall purchase and receive from [KEPCo] all electric power and energy which [Prairie Land] shall require for the operation of [Prairie Land’s] system to the extent that [KEPCo] shall have such power and energy and facilities available; provided, however, that [Prairie Land] shall continue to purchase electric power and energy under any existing contract or contracts with a supplier other than [KEPCo] during the remainder of the term thereof. [Prairie Land] shall terminate, if [KEPCo] shall, with the approval or at tire direction of tire Administrator of tire Rural Electrification Administration (hereinafter called the ‘Administrator’), so request, any such existing contract or contracts with a supplier other than [KEPCo] at such times as it may legally do so, provided [KEPCo] shall have sufficient electric power and energy and facilities available for [Prairie Land]. Provided, however, that [Prairie Land] may continue to utilize power and energy generated from those facilities owned by [Prairie Land] at the time of [Prairie Land’s] execution of the [KEPCo] Wholesale Power Contract, and provided further, that in the event of an emergency power outage(s) which affects a member system during the term of [the KEPCo Contract] [Prairie Land] may take power and energy from a power suppher(s) other than [KEPCo] on an emergency, short term basis.” (Emphasis added.)
With this general language, the KEPCo Contract recognized Prairie Land’s right to continue to purchase electric power and energy under Prairie Land’s “existing contract” with Sunflower and did not attempt to limit the geographic scope of that preexisting contract or its future impact. Notably, as discussed, Prairie Land’s preexisting contract with Sunflower obligated Prairie Land to purchase all of the requirements for Prairie Land’s “system” from Sunflower. But inexplicably, in paragraph 6(b) of the KEPCo Contract, KEPCo sought to temporally and geographically limit Prairie Land’s obligation to Sunflower to “those areas of [Prairie Land’s] system presently served” with power procured from Sunflower:
“If [Prairie Land] is presently a member of Sunflower Electric Cooperative, Inc. (hereinafter called ‘Sunflower’) and intends to retain its membership in Sunflower and to continue to procure from Sunflower its power requirements for those areas of its system presently served with power procured from Sunflower, [Prairie Land] and [KEPCo] agree that all of [Prairie Land’s] power requirements to serve those areas of [Prairie Land’s] system other than those served with power procured from Sunflower at the time of execution of this contract, shall be furnished to [Prairie Land] by [KEPCo] pursuant to this Wholesale Power Contract.” (Emphasis added.)
In summaiy, the Sunflower Contract required Prairie Land to purchase all of the present and future power needs for Prairie Land’s “system” from Sunflower unless Sunflower could not supply such needs or Prairie Land had a preexisting contract or contracts with a supplier other than Sunflower. Likewise, Prairie Land’s subsequent contract with KEPCo generally required Prairie Land to purchase all of the present and future power needs for Prairie Land’s “system” from KEPCo unless KEPCo could not meet Prairie Land’s needs or Prairie Land had a preexisting contract or contracts with a supplier other than KEPCo. But paragraph 6(b) of the KEPCo Contract then purported to qualify this more general language by limiting Prairie Land’s future obligations to one particular supplier—Sunflower—to “those areas of [Prairie Land’s] system presently served with power procured from Sunflower,” although Sunflower was not a party to the KEPCo Contract.
The Delivery Point of Contention
In 2005, Jayhawk Pipeline Service (Jayhawk), a new retail customer, informed Prairie Land it would need electric service to operate an oil-pumping station on a 500-horsepower motor. Because the pumping station would be built near Prairie Land’s Phillipsburg substation—a substation supplied with wholesale electricity from KEPCo—-Prairie Land contacted KEPCo about the possibility of adding the new customer load to the Phillipsburg substation.
Prairie Land later learned the Jayhawk pumping station would utilize a 1,250-horsepower motor and the load for this new station would exceed the Phillipsburg substation’s capacity. After considering several factors, including its preexisting all-requirements contract with Sunflower, Prairie Land decided to establish a new delivery point and substation to serve the Jayhawk pumping station, and to purchase wholesale electricity for the new delivery point from Sunflower rather than KEPCo.
In correspondence dated November 9, 2007, KEPCo advised Prairie Land that the KEPCo Contract required Prairie Land to purchase power from KEPCo to serve tire new load created by the Jayhawk pumping station.
District Comt Proceedings
On November 16, 2007, Prairie Land filed a petition for declaratory judgment in Phillips County District Court pursuant to K.S.A. 60-1701 et seq., asking the court “to construe and declare the rights, status and legal l'elations of the parties” under the Sunflower and KEPCo Contracts.
Following a 2-day bench trial, the district court issued a comprehensive memorandum decision and order, ultimately concluding “Sunflower has the contractual right and obligation to serve the new Jayhawk pumping station delivery point.” In reaching this conclusion, the district court found ambiguities in the KEPCo Con tract, particularly KEPCo’s recognition of Prairie Land’s existing contractual obligations to Sunflower and its attempt to limit those obligations in paragraph 6(b), KEPCo’s use of the undefined term “areas” in that same provision, and KEPCo’s failure to clarify the scope of paragraph 6(b).
Additionally, while the district court characterized both the KEPCo and Sunflower Contracts as “all-requirements” contracts, it noted that the Sunflower Contract was “first in time” and that KEPCo knew of Prairie Land’s preexisting contractual obligations with Sunflower when KEPCo drafted the KEPCo Contract. Finally, die district court determined neither Sunflower nor Prairie Land had waived “their respective rights and obligations under” the Sunflower Contract. In sum, the district court determined Sunflower had the right to supply the need created by the Jayhawk pumping station.
Court of Appeals’ Decision
In its direct appeal to the Court of Appeals, KEPCo argued the district court erred in concluding that paragraph 6(b) of the KEPCo Contract was ambiguous and in finding Sunflower had not waived or released its contractual right to serve the new delivery point. In response, Sunflower and Prairie Land asserted, in part, that Sunflower was entitled to serve the new delivery point because the Sunflower Contract was prior in time.
Ultimately, the panel reversed the district court’s ruling and remanded with directions to enter judgment in favor of KEPCo after concluding KEPCo had the contractual right to supply electricity to Prairie Land for the new delivery point based on the unambiguous language of the KEPCo Contract. Prairie Land Elec. Co-op. v. Kansas Elec. Power Co-op, No. 102,630, 2010 WL 4977115, at *8 (Kan. App. 2010) (unpublished opinion), rev. granted 293 Kan. 1107 (2011).
After rejecting Sunflower’s “prior in time” argument on procedural grounds, the panel focused solely on the language of the KEPCo Contract and agreed with KEPCo that the term “areas” in paragraph 6(b) of the KEPCo Contract was unambiguous. 2010 WL 4977115, at *4-8. Ultimately, the panel determined the parties to the KEPCo Contract intended the term “areas” to be “geographical in scope” and concluded the Jayhawk pumping station was “undoubtedly within die area served by the PhiUipsburg delivery point, so the power must come from KEPCo as a matter of contract.” 2010 WL 4977115, at *6, 8. Finally, the panel found die waiver issue moot “given the rights granted by the KEPCo contract.” 2010 WL 4977115, at *8. We granted Sunflower’s and Prairie Land’s petitions seeking review of the Court of Appeals’ decision under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Discussion
Preliminarily, we note that our summaries of the district court’s and the Court of Appeals panel’s findings and conclusions are highly condensed. This is so because we exercise unlimited review over the interpretation and legal effect of written instruments, and we are not bound by the lower courts’ interpretations of those instruments. See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011); McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005).
So we begin anew, keeping in mind “[t]he primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.” Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007).
We find it helpful initially to place this action in the appropriate context by clarifying what it is not—i.e., this is not a breach of contract action brought by KEPCo against Prairie Land to enforce its rights under the KEPCo Contract. Rather, this is a declaratory judgment action. Declaratory judgment actions “ provide relief from uncertainty and insecurity’ with respect to ‘rights, status and other legal relations.’ ” Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 963, 298 P.3d 250 (2013) (quoting K.S.A. 60-1713).
In the spirit of a declaratory judgment, Prairie Land brought this action to “construe and declare the rights, status and other legal relations of the parties” under the nearly identical portions of both its 1958 all-requirements contract with Sunflower and its 1977 all-requirements contract with KEPCo. In its declaratory judgment petition, Prairie Land identified the pending dispute concerning the Jayhawk pumping station and informed the court that KEPCo had threatened to sue Prairie Land if Prairie Land refused to permit KEPCo to serve the load. Finally, Prairie Land asserted that its preexisting all-requirements contract with Sunflower required Prairie Land to purchase the power for the new pumping station from Sunflower and that tire KEPCo Contract recognized this preexisting obligation.
Although the declaratory judgment action clearly placed both contracts at issue and sought the district court’s determination of the “rights, status and other legal relations of the parties” under both agreements, the Court of Appeals panel initially discarded any consideration of the Sunflower Contract, observing simply:
“Sunflower argues it ‘has die contractual right to serve the new Jayhawk delivery point’ because its contract ‘was prior in time to the KEPCo contract.’ This is contrary, however, to the trial court’s ruling. The trial court gave Sunflower the right because Prairie Land had not chosen KEPCo, not because Sunflower enjoyed a precedence over KEPCo. Absent a cross-appeal, we will not consider points contrary to the trial court’s ruling.” Prairie Land, 2010 WL 4977115, at *4.
Unlike the panel, we will not resolve the question presented in this declaratory judgment action by ignoring one of the two contracts at issue. First, although not determinative, we note that the trial court did not ignore the Sunflower Contract. Instead, it found the Sunflower Contract was “first in time” and further concluded neither Sunflower nor Prairie Land had waived their respective rights and obligations under that contract. Second, even if the district court had considered only the KEPCo Contract, the panel was not precluded from considering both contracts. Rather, as we have noted, an appellate court exercises unlimited review over the interpretation and legal effect of written instruments and is not bound by the lower courts’ interpretations of those instruments.
With that context in mind, we proceed to first consider the Sunflower Contract, which, as Prairie Land noted, was executed nearly 20 years prior to the KEPCo Contract. Notably, under the plain and unambiguous language of die Sunflower Contract, Prairie Land agreed to “purchase and receive from [Sunflower] all electric power and energy which [Prairie Land] shall require for the operation of [Prairie Land’s] system. “ The parties agreed to only two exceptions to this all-requirements language: (1) if Sunflower lacked capacity to meet all of Prairie Land’s requirements; or (2) if Prairie Land had preexisting obligations to purchase some of its energy requirements from other suppliers at the time it entered into the Sunflower Contract.
Both of these exceptions came into play shortly after Prairie Land entered into the Sunflower Contract when, by letter agreement, Sunflower acknowledged Prairie Land’s preexisting agreement to purchase some of its energy requirements from Centel and permitted Prairie Land to continue doing so, and when Sunflower permitted Prairie Land to purchase power from Centel for a new delivery point which Sunflower lacked the capacity to supply.
Accordingly, until 1977, Prairie Land purchased all of its energy requirements from Sunflower, except the power it required for two delivery points. And Prairie Land purchased power for those two delivery points from Centel in accordance with the exceptions recognized in the Sunflower Contract.
In 1977, Prairie Land entered into the KEPCo Contract. On its face, tire KEPCo Contract required Prairie Land to assume the same obligation to KEPCo that Prairie Land had assumed to Sunflower under the Sunflower Contract—i.e., Prairie Land agreed generally to “purchase and receive from [KEPCo] all electric power and energy which [Prairie Land] shall require for the operation of [Prairie Land’s] system.” To further complicate matters, in paragraph 1 of the KEPCo Contract, Prairie Land purported to agree to the same two exceptions to the all-requirements language which it had agreed to in the Sunflower Contract: (1) if KEPCo lacked the capacity to meet all of Prairie Land’s requirements; or (2) if Prairie Land had preexisting obligations to purchase its needs from another supplier.
Despite this general language in the KEPCo Contract recognizing Prairie Land’s preexisting obligations to Sunflower, in paragraph 6(b) of that same contract KEPCo inexplicably attempted to limit Prairie Land’s obligations to Sunflower, utilizing language varying from the all-requirements language of Prairie Land’s separate contract with Sunflower:
“If [Prairie Land] is presently a member of Sunflower Electric Cooperative, Inc. (hereinafter called ‘Sunflower’) and intends to retain its membership in Sunflower and to continue to procure from Sunflower its power requirements for those areas of its system 'presently served with power procured from Sunflower, [Prairie Land] and [KEPCo] agree that all of [Prairie Land’s] power requirements to serve those areas of [Prairie Land’s] system other tiran those seived with power procured from Sunflower at the time of execution of this contract, shall be furnished to [Prairie Land] by [KEPCo] pursuant to this Wholesale Power Contract.” (Emphasis added.)
In this litigation, Sunflower points out that the Jayhawk pumping station is clearly within Prairie Land’s “system” and because neither exception to the all-requirements language of the preexisting Sunflower Contract applies, Prairie Land is contractually required to purchase power for the new pumping station from Sunflower. Prairie Land concurs with this interpretation of the Sunflower Contract.
KEPCo, on the other hand, argues that its identical, but later in time, all-requirements contract with Prairie Land requires Prairie Land to purchase power for the Jayhawk pumping station from KEPCo. But unlike Sunflower, KEPCo does not focus on the all-requirements language of its contract that mirrors the language in the preexisting Sunflower Contract and requires Prairie Land to purchase all requirements for its “system” from KEPCo. Instead, KEPCo focuses on paragraph 6(b) of the KEPCo Contract, which attempts to limit Prairie Land’s preexisting obligation to Sunflower by permitting KEPCo to serve “areas of [Prairie Land’s] system” not presently served by Sunflower.
Notably, none of the parties offers any real solution to the underlying irreconcilable conflict, i.e., that Prairie Land entered into identical and temporally overlapping agreements to purchase all of the requirements for its system from two different suppliers, yet neither supplier was a party to the other contract.
The Court of Appeals panel essentially ignored this conflict by suggesting that the issue was not properly before it and then moved on to considering paragraph 6(b) of the KEPCo Contract. But we decline to reconcile this conflict by ignoring it; nor can we reconcile the conflict, as KEPCo suggests, by turning to paragraph 6(b) of the KEPCo Contract. Although in this paragraph Prairie Land and KEPCo purportedly limited the scope of Prairie Land’s future obligations to Sunflower under its preexisting all-requirements contract, Sunflower was not a party to the KEPCo Contract and never agreed to limit Prairie Land’s future obligation to Sunflower to only those “areas of [Prairie Land’s] system” served by Sunflower at the time the KEPCo Contract was executed.
Moreover, paragraph 6(b) directly contradicted Prairie Land’s broader and preexisting obligation to purchase all of the present and future power requirements for the operation of its “system” from Sunflower. Further, paragraph 6(b) of the KEPCo Contract conflicted with paragraph 1 of that same contract, whereby KEPCo agreed that Prairie Land could continue to purchase electric power and energy under any preexisting contracts with other suppliers, including Sunflower.
After careful consideration of these seemingly irreconcilable contract provisions, we conclude the only way to reasonably interpret and give legal effect to both contracts is to interpret the KEPCo Contract in light of, and as limited by, Prairie Land’s preexisting obligations under the Sunflower Contract. We thus conclude that Prairie Land agreed in the KEPCo Contract to purchase its needs from KEPCo only if one of tire two exceptions recognized in the Sunflower Contract applied—i.e., if Sunflower lacked capacity to meet all of Prairie Land’s requirements; or (2) if Prairie Land had preexisting obligations to purchase some of its energy requirements from other suppliers at the time it entered into the Sunflower Contract.
The first exception does not apply here because Sunflower had the capacity to meet Prairie’s Land’s requirements for the new Jayhawk pumping station. Similarly, the second exception does not apply here because Prairie Land did not have a preexisting obligation to purchase energy requirements for the new Jayhawk pumping station from a supplier other than Sunflower at the time it entered into die Sunflower Contract. Thus, we interpret the con tracts at issue to require that Prairie Land purchase its energy needs for the Jayhawk pumping station from Sunflower rather than KEPCo.
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The opinion of the court was delivered by
Johnson, J.:
Kiara M. Williams directly appeals her convictions for felony murder, aggravated burglary, and aggravated assault. The charges arose out of an incident in which Williams accompanied Kevin Brown, Quartez Brown, and Jaleesa Bonner to the apartment of Otis Bolden, where Kevin and Quartez entered the apartment, assaulted Ashley Green with a handgun, and fatally shot Bolden. Williams and Bonner directed the Browns to Bolden’s apartment and waited in the car to whisk them away after the shooting. Williams contends: (1) The district court erred in providing a no-sympathy jury instruction; (2) the district court erred in refusing to supplement the pattern jury instruction on aiding and abetting; (3) trial counsel provided ineffective assistance; and (4) cumulative error denied her a fair trial. Finding no reversible error, we affirm.
Factual and Procedural Overview
The events leading to this criminal prosecution began to unfold in the early morning hours of April 26, 2010, when Williams and Bonner, together with their friend, Rika Evans, left a local club and gathered at Bolden’s apartment, along with Reader Watley. After Bonner accompanied Bolden into his bedroom, she interpreted a comment he made as indicating that he had participated with a group of men who had raped her some 2 years earlier. That prompted Bonner to indicate that she wanted to leave the apartment.
Bolden drove the three women—Bonner, Williams, and Evans^—-to the home of Bonner and Evans on Glendale Street, albeit Williams would return to Bolden’s apartment to stay the night. Enroute back to his apartment, Bolden picked up Ashley Green. Bolden and Green spent the night in his bedroom, while Williams and Watley spent the night on the couch. There was conflicting testimony as to whether there was any sexual activity involving Williams. Watley drove Williams home the next morning.
That next morning at the Glendale house, Bonner told her boyfriend, Kevin, about Bolden’s involvement with her prior rape. Additionally, according to Evans and Bonner, Williams told Kevin that Watley and Bolden had sexually assaulted her the night before. Kevin then called his cousin, Quartez, who came to the Glendale house where the group discussed a course of action. There was conflicting testimony as to the group’s discussions, with variations of the plan being to rob Bolden, to rough-up Bolden, to talk to him, or for Kevin to simply “take care of it.” What is undisputed is that the Brown cousins, Kevin and Quartez, and two of the women, Bonner and Williams, left the Glendale house in an automobile, enroute to Bolden’s apartment. Apparently Kevin did not want the women to go, but they insisted on going. Along the way, they stopped at the house of Cody Baker, also known as “Drop,” ostensibly to pick up firearms. The Brown cousins had never been to Bolden’s apartment, so the women directed them to the apartment complex and then to Bolden’s particular apartment.
At the complex, Kevin and Quartez directed the women to stay in the car, and the men entered Bolden’s apartment. They first encountered Green in the living room and, at gunpoint, directed her to lie on the ground and asked for Bolden’s location. The cousins proceeded to the bedroom indicated by Green, and she heard gunshots, together with the inquiry, “[W]hy did you rape my home girl?” Green then heard a window shatter and saw one of the assailants exit the apartment through the living room. Apparently, Bolden jumped through a bedroom window and attempted to get away, although he would be discovered later on the sidewalk at the complex and would subsequently die from gunshot wounds.
When Bonner and Williams saw Bolden running around the apartment building, they jumped into the front seat of their vehicle, with Bonner driving. After picking up the Brown cousins, Bonner stopped the vehicle briefly at Drop’s house before returning to the Glendale house.
At various times thereafter, Williams told law enforcement officers different versions of what happened, minimizing her involvement, knowledge, and culpability in the incident. Ultimately, the State would charge Williams with first-degree murder or, in the alternative, felony murder, along with aggravated burglary and aggravated assault. The case proceeded to jury trial, where Williams would testify in her own behalf, relating that she simply left the Glendale house in the automobile with the other three because she needed to pick up her daughter and she thought they were going to sell marijuana rather than head to Bolden’s house. Nevertheless, the jury convicted Williams of felony murder, aggravated robbery, and aggravated assault.
Of the other three participants, Bonner entered a plea, was sentenced, and has not appealed. Kevin and Quartez Brown went to trial, were convicted, and have appeals pending before this court which were heard on the same docket with Williams’ case. How-evex', the three pending appeals raise completely different issues so that cross-referencing among them will not significantly shorten our task.
No-Sympathy Jury Instruction
At the State’s request and over Williams’ objection, the district couit included a jury instruction (hereafter referi'ed to as the “no-sympathy instruction’’) that was patterned after the instruction formerly set foith in PIK Ciim. 3d 51.07: “You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.” Subsequently, the PIK committee deleted the no-sympathy instruction because it was disapproved for general use. The trial court acknowledged the PIK committee’s disapproval but explained its ruling as follows:
“I rarely give this instruction but I think this is one that it is appropriate. Just because a witness may cry on the witness stand, I don’t think it’s sufficient in and of itself. But... in addition to her crying a number of times on the witness stand, she has frequently been very emotional in front of the jury throughout the trial. It’s all—it’s on a daily basis and and it’s a number of times each day that I see her breaking down in the courtroom. So I think that it’s appropriate for the jury to understand this. And so I think this is a unique case and based upon the very factual specific need for it, I think [the no-sympathy instruction] should be included in this packet.”
On appeal, Williams labels the no-sympathy instruction as “an objectionable instruction,” declaims that giving the instraction over the defense’s objection was “not a small error,” asserts that the State asked for the instruction to preclude the jury’s determination of her credibility, and summarily concludes that the giving of the no-sympathy instruction “denied her a fair trial.” The State counters that “emotions ran high” during Williams’ entire trial, which is a circumstance that cannot be fully appreciated from a cold record, and that such unusual circumstances warranted the instruction or, at least, rendered any error harmless.
Standard of Review
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether tire error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Analysis
Williams objected to the giving of the no-sympathy instruction, and the district court’s comments on the record indicate that it understood the grounds for that objection. See K.S.A. 22-3414(3) (A party must object to an instruction 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 or the failure to give an instruction is clearly erroneous.”). Accordingly, Williams passes the first test of reviewability.
The next step is to consider whether the instruction was legally appropriate. As noted, the PIK committee has indicated that the no-sympathy instruction is not approved for general use. But we note that in a case with the same name, State v. Williams, 42 Kan. App. 2d 725, 727-28, 216 P.3d 707 (2009), rev. denied 290 Kan. 1104 (2010), a Court of Appeals panel rejected the PIK committee’s rationale for finding that the no-sympathy instruction is ob jectionable, specifically finding that it is not “inherently pernicious to tell jurors not to do tilings they should not do.” The Williams panel referred to State v. Sully, 219 Kan. 222, 226, 547 P.2d 344 (1976), which initially discussed the PIK committee’s view on the no-sympathy instruction and found that it may be the better practice to omit the no-sympathy instruction because the instruction “ Tells die jury what not to do rather than what to do.’ ” 42 Kan. App. 2d at 727. But the Sully court “hasten[ed] to add that die giving of such an instruction would not constitute error.” 219 Kan. at 226.
But more recendy than Sully, this court declared that “[t]he sympadiy instruction should only be used under veiy unusual circumstances.” State v. Baker, 281 Kan. 997, 1004, 135 P.3d 1098 (2006); see State v. Reser, 244 Kan. 306, 315-17, 767 P.2d 1277 (1989). And just last year, we noted that the PIK instructions no longer provide for the routine inclusion of a no-sympathy instruction. State v. Jones, 298 Kan. 324, 338-39, 311 P.3d 1125 (2013). The State has not challenged that precedent. Consequently, we will proceed under the Baker rule that a no-sympathy instruction is only legally appropriate in very unusual circumstances.
The tougher question is whether the instruction was factually appropriate, i.e., whether the facts of this case presented very unusual circumstances. The Baker court noted that State v. Rhone, 219 Kan. 542, 548 P.2d 752 (1976), was “the only case where this court has found sufficiently unusual circumstances to support a sympathy instruction.” Baker, 281 Kan. at 1005. In Rhone, the district court took die victim’s trial testimony at the victim’s home because the victim was too ill with cancer to testify in the courtroom.
Certainly, a defendant’s display of emotion is not as unusual as conducting court in an ailing victim’s home. Nevertheless, we should view the cold record through a deferential lens, recognizing that the veteran trial judge was in a better position to assess whether the defendant’s courtroom demeanor was an unusual circumstance that needed to be addressed for the jury. Moreover, none of the cases presented by the parties is so factually similar as to mandate a result here, and we are inclined to side with the discretion of the trial judge.
Nevertheless, even if we were to find that the no-sympathy instruction was not factually appropriate in this case, we would be convinced that, even under the most stringent harmless error test, “there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). We specifically reject Williams’ argument that the instruction hindered or denied “the jury’s determination of the weight and credit to be given . . . Williams’ testimony.” As the State points out, looking at the instructions as a whole, the jurors were told that it was their responsibility to determine the weight and credit to be given the testimony of each witness, that they had the right to rely upon common knowledge and experience with respect to matters about which a witness had testified, and that their verdict must be founded entirely upon the evidence admitted and the law as given in the court’s instructions. The no-sympathy instruction merely removed sympathy and prejudice from the equation without changing the credibility calculus.
In short, the district court’s inclusion of a no-sympathy instruction in the package of jury instructions was not reversible error.
Supplementation of the Aiding and Abetting Instruction
Williams was prosecuted as an aider and abettor, and the jury received the following aiding and abetting instruction, which conforms with PIK Crim. 3d 54.05 (responsibility for crimes of another):
“A person who, either before or during its commission, intentionally aids 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 die crime.”
Williams requested that the instruction be supplemented, consistent with the PIK instruction’s official Comment: “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 and abettor.” PIK Crim. 3d 54.05, Comment (citing State v. Green, 237 Kan. 146, 697 P.2d 1305 [1985]). The district court refused the requested instruction modification.
Standard of Review
The progression of analysis and corresponding standards of review are the same as set forth in the preceding issue. See Plummer, 295 Kan. 156, Syl. ¶ 1.
“ ‘Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. State v. McCullough, 293 Kan. 970, 974, 270 P.3d 1142 (2012) (self-defense). And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).’ State v. Friday, 297 Kan. 1023, 1036-37, 306 P.3d 265 (2013).” State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 (2014).
Analysis
Williams contends on appeal that her defense theory was that she “was just in the car along for the ride with no intent to commit a crime.” Williams testified that she understood that Kevin Brown was just going to talk to someone. Therefore, she argues that the district court’s refusal to add the additional language about mere presence or association “removed from the jury’s consideration defendant’s specific intent to commit the crimes charged.”
We have addressed this issue under similar factual circumstances a number of times recently, always declining to reverse. In Hilt, we explained:
‘We examine ‘jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.’ State v. Williams, 42 Kan. App. 2d 725, Syl. ¶ 1, 216 P.3d 707 (2009), rev. denied 290 Kan. 1104 (2010).
“Hilt argues that the facts of his case and his theory of defense required the district judge to instruct tire jury that ‘[mjere association wiffi 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.’ Without this supplement to the usual PIK instruction, Hilt contends, the juiy was left with an incomplete understanding of aiding and abetting theory.
“The additional instruction language Hilt sought properly states the law in Kansas. See State v. Jefferson, 297 Kan. 1151, 1167-68, 310 P.3d 331 (2013). But we have previously rejected arguments that the language was indispensable to a jury’s understanding of a case. See, e.g., State v. Edwards, 291 Kan. 532, 551-52, 243 P.3d 683 (2010) (refusal to give ‘mere association or presence’ language not reversible error); State v. Holt, 285 Kan. 760, 772, 175 P.3d 239 (2008) (refusal to give ‘mere presence or association’ language not error); State v. Davis, 283 Kan. 569, 582-83, 158 P.3d 317 (2006) (refusal to instruct on ‘mere presence’ not reversible error).
“In Edwards, defendant Edrick Edwards made the same argument that Hilt raises on this appeal. The State had charged Edwards with felony murder and attempted aggravated robbery. At trial, Edwards’ theory of defense was that he was with the three perpetrators at the time of the crime, but he had been unaware of their plan to rob the victim. Edwards requested a modification to the aiding and abetting instruction to include the same language at issue here. The district court denied Edwards’ request to supplement the aiding and abetting instruction. On appeal, this court acknowledged that the requested language ‘precisely fit the defense theory.’ 291 Kan. at 552. And this court even suggested that ‘the better practice would have been to modify the patterned instruction’ as requested. 291 Kan. at 552. But this court ultimately held that refusal to supplement the aiding and abetting instruction was not reversible error. 291 Kan. at 552.
‘We arrive at tire same conclusion here. PIK Crim. 3d 54.05 on aiding and abetting, given without the additional language, was not reversible error. However, the better practice is to add tire requested language in cases such as this, and failure to do so may imperil convictions in future similar cases. See State v. Llamas, 298 Kan. 246, 258-62, 311 P.3d 399 (2013).” Hilt, 299 Kan. at 185-86.
Williams is in tlie same position as Hilt. It would have been the better practice for the district court to give the modified aiding and abetting instruction, but the failure to do so does not result in reversible error.
Ineffective Assistance of Counsel
Next, Williams complains that she was denied her right to effective assistance of counsel under the Sixth Amendment to the United States Constitution and under Section 10 of the Kansas Constitution Bill of Rights. Specifically, she asserts that her attorney pursued a guilt-based defense strategy when he stated in closing argument that it was morally and ethically wrong for Williams to be involved in the incident.
Standard of Review
“Allegations of ineffective assistance of counsel, whether based on claims of deficient performance or on a conflict of interest, involve mixed questions of fact and law. This court therefore reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, Syl. ¶ 3, 215 P.3d 585 (2009). On the other hand, “[t]he merits of a claim of ineffective assistance of counsel ordinarily are not addressed for the first time on direct appeal.” State v. Dull, 298 Kan. 832, 839, 317 P.3d 104 (2014) (citing Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 [2009]; State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 [2000]; State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 [1986] [overruling State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985)]).
Analysis
Williams points to a small segment of her attorney s closing argument and declares that her attorney essentially admitted her criminal intent. We take the liberty of placing the language of which Williams complains in context, with the language that Williams targets in italics:
“You know, and we talked about in jury selection, the idea of legal responsibility versus moral and ethical responsibility. And I just bring that up because, you knoio, should she have been involved in any of this? Absolutely not. Was it wrong for her to be involved in it in the moral, ethical sense? Absolutely. You know, I don’t think the answer is quite that easy on the legal side, though.”
Normally, we do not consider a claim of ineffective assistance of counsel until the district court has had an opportunity to conduct an evidentiaiy hearing, either pursuant to a K.S.A. 60-1507 motion hearing or pursuant to a Van Cleave remand on a direct appeal. We recently explained:
“Although ‘there are circumstances when no evidentiaiy record need be established, when the merit or lack of merit of an ineffectiveness claim about trial counsel is obvious,’ and an ineffectiveness claim can therefore be resolved when raised for the first time on appeal, these circumstances are ‘extremely rare.’ Rowland, 289 Kan. at 1084-85; see also State v. Levy, 292 Kan. 379, 253 P.3d 341 (2011) (declining to consider ineffective assistance claims for first time on direct appeal; declining to remand for Van Cleave hearing based on defendant’s failure to meet minimal requirements); Laymon v. State, 280 Kan. 430, 444, 122 P.3d 326 (2005) (direct appeal counsel’s performance objectively unreasonable; performance prejudiced defendant); Carter, 270 Kan. at 433-34, 440-41 (trial coun- seis pursuit of guilt-based defense despite client’s contrary wishes ineffective, prejudicial per se).” Dull, 298 Kan. at 839.
Williams tries to shoehorn her facts into the prejudicial per se scenario that caused the Carter court to resolve the defendant’s ineffective assistance of counsel claim without the benefit of an evidentiary hearing. But Carter is readily distinguishable. There, defense counsel conceded that Carter was involved in the killing in an effort to entice the jury to convict Carter of the lesser crime of felony murder, instead of premeditated first-degree murder. However, Carter had pled not guilty to all charges, had denied any involvement in the killing, and had not consented to his attorney’s concession. The Carter court refused to characterize defense counsel’s actions as trial strategy because the attorney’s conduct “betray[ed] the defendant by deliberately overriding his plea of not guilty.” 270 Kan. at 440.
In contrast, Williams’ attorney’s strategy was consistent with her not guilty plea. Her attorney argued that she was not legally guilty even if the jurors found her conduct to be morally or ethically wrong. The argument was a valid tack to take and did not represent such a “breakdown in the adversarial process that would justify a presumption that [Williams’] conviction was insufficiently reliable to satisfy the Constitution.” United States v. Cronic, 466 U.S. 648, 662, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Accordingly, Williams must show more than she has presented here, and we decline to rule on her ineffective assistance of trial counsel claim without the benefit of having the district court address the question first.
In her brief, Williams did not request a remand for an eviden-tiary hearing pursuant to Van Cleave. We could malee such a remand on our own initiative. But as we have previously noted, we expect to see something more than has been presented here.
“In Van Cleave, we set guidelines for an appellate court to follow in exercising its discretion when deciding whether to remand a case for an evidentiary hearing. See 239 Kan. at 119-21. In that case, we noted an appellant’s counsel must do more than simply read the cold record of the proceedings before the district court and then argue that he or she would have handled the case differently. We held that counsel must attempt to determine the circumstances under which trial counsel did—or did not—proceed as the appellate counsel believes preferable and conduct at least some investigation into the claimed ineffectiveness. We then noted: ‘Except in the most unusual cases, [for an appellate counsel] to assert a claim of ineffective assistance of counsel without an independent inquiry and investigation apart from reading the record is questionable to say the least.’ 239 Kan. at 120-21.” State v. Levy, 292 Kan. 379, 389, 253 P.3d 341 (2011).
Therefore, we decline to make a Van Cleave remand. If Williams should develop further evidence that her trial attorney was ineffective, she can pursue that claim through a K.S.A. 60-1507 motion.
Cumulative Error
Finally, Williams argues that cumulative error prevented her from receiving a fair trial. The reversibility test for cumulative error is “ ‘ “whether the totality of circumstances substantially prejudiced tire defendant and denied the defendant a fair trial. No prejudicial error may be found under this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ ” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010) (quoting State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3d 1105 [2009]).” State v. Cruz, 297 Kan. 1048, 1073-74, 307 P.3d 199 (2013).
Standard of Review
Given that the reversibility test for cumulative error utilizes a totality of the circumstances approach, an appellate court must necessarily “review the entire record and engage in an unlimited review.” 297 Kan. at 1074.
Analysis
The first task in the cumulative error analysis is to count up the errors, because the doctrine “does not apply if no error or only one error supports reversal.” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). Reviewing our decisions in reverse order, we found that this was not an extraordinaiy case in which we could address an ineffective assistance of counsel claim for the first time on appeal. Based upon the principle of stare decisis, we declined to find that the trial court erred in refusing to modify the PIK instruction on aiding and abetting, notwithstanding that it would have been the better practice to have done so. Likewise, we declined to second guess the trial court’s determination that Williams’ emotional outbursts throughout the trial created “veiy unusual circumstances” that justified the giving of a no-sympathy jury instruction. See Baker, 281 Kan. at 1004.
Consequently, there were no errors to accumulate, and Williams’ claim of cumulative error must fail.
Affirmed.
Moritz, J., not participating.
David J. King, District Judge, assigned. | [
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In a letter signed on May 22, 2014, addressed to the Clerk of the Appellate Courts, respondent Lowell D. Ramsey, 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 (2013 Kan. Ct. R. Annot. 396).
At the time the respondent surrendered his license, a complaint had been docketed by the Disciplinary Administrator s office for investigation and a finding of probable cause had been made. The complaint alleged that respondent violated Kansas Rule of Professional Conduct 8.4(d) (misconduct) (2013 Kan. Ct. R. Annot. 655).
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 Lowell D. Ramsey 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 Therefore Ordered that the Clerk of the Appellate Courts strike the name of Lowell D. Ramsey 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 (2013 Kan. Ct. R. Annot. 406). | [
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The opinion of the court was delivered by
Rosen, J.:
Bobby Edwards seeks review of the Court of Appeals published decision affirming his conviction of aggravated robbeiy. We agree with the Court of Appeals and affirm.
On the evening of September 15, 2008, Wichita police received a report that Edwards was stumbling around in the streets and had punched out a store window. When police arrived, Edwards was trying to pull down street signs and was making obscene gestures at cars. Around 10 p.m., Edwards was escorted to Via Christi Hospital, where his blood alcohol content was tested at .375. Edwards fought with and spat on the medical staff, who finally administered two 2.5-milligram injections of Haldol in order to sedate him. Edwards calmed down and went to sleep, and the staff removed restraints that they had placed on him. He woke up around 4:30 in the morning, and the staff noticed that his speech was slurred, so they allowed him to sleep longer. Around 6:30 that same morning, he woke up again. The hospital staff observed that he was walking steadily and was talking without slurred speech. The staff deemed him clinically sober and released him, still wearing hospital scrubs.
Kristie Zenner was living at the time in a townhouse in Wichita, with her boyfriend and her 6-year-old son. On tire morning of September 16, 2008, Zenner remained in bed while her boyfriend got ready to leave for work, and she heard him leave around 7:30. A few minutes later, she heard a knock at the back door, and, still in her pajamas and assuming that it was her boyfriend who had left without his keys, she went downstairs to let him back in.
When she opened the door, Zenner realized that it was Edwards, not her boyfriend, who had been knocking. Although she did not know him by name, she recognized Edwards as a neighbor who lived in the apartment to the north of hers and as someone whom she had previously allowed to use her cell phone. On that occasion, he had stood outside the door, made his phone call, and returned the phone without incident.
Edwards asked if he could use her phone again. Zenner pushed the front door shut and walked into her living room to retrieve her phone from the couch. When she turned around, she discovered Edwards immediately behind her. She handed him the phone and told him he was welcome to use it but he had to go outside to do so. Edwards took the phone and put it in the pocket of the scrubs drat he was wearing.
Edwards then looked over at a nearby table and saw a hammer that Zenner had been using to take down pictures. He picked up the hammer, pushed Zenner into a chair behind her, and swung the hammer so that the flat end hit her on the head. The hammer flew out of his hand, and he began looking for it. While Edwards searched for the hammer, Zenner struggled to get away but Edwards held her in a chokehold. Zenner took advantage of her martial arts training and the fact that her head was slippeiy with blood from the hammer blow and was able to free herself from his grip.
Zenner noticed that her phone was lying on the chair, having apparently fallen out of Edwards’ pocket during the attack. She grabbed the phone and attempted to call 911, but Edwards wrestled the phone away from her before she was able to complete the call.
As the attack was taking place, Zenner repeatedly shouted, “Rape!” Edwards told her that he was not going to rape her and that he was looking for the hammer so that he could take his “evidence” and leave. Edwards also asked who was in the house with Zenner. She initially declined to tell him but eventually mentioned that her 6-year-old son was upstairs.
As the confrontation continued, Edwards asked if Zenner could take him somewhere. Realizing that she was bleeding from her head wound, Zenner declined, saying that she needed her keys to drive for medical attention. Edwards then asked her whether she would not even give him the keys to save her life. She decided at that time to give him the keys and tried to go upstairs to put on her clothes.
As she tried to go upstairs, Edwards found the hammer in a vase. He struck her on the head a second time, knocking her back into the chair. Zenner attempted to kick him in the groin several times, but she did not succeed in incapacitating him. Edwards swung a third time, and Zenner blocked tire blow, causing Edwards to lose his balance and let the hammer fall into her lap. She grabbed the head of the hammer, while Edwards grabbed the handle.
As the two struggled, Zenner told Edwards that he could leave the townhouse and take her phone and hammer with him. During the entire incident, Edwards spoke clearly. He did not slur his words, and he articulated ideas coherently. He did not stagger or shake or give any evidence of tremors. When Zenner’s son began to cry, Edwards agreed to leave. Zenner and Edwards walked to the front door, each maintaining a grip on the hammer. After Ed wards left through the door, Zenner let go of the hammer and shut and locked the door behind him.
At Zenner’s request, a neighbor called the police. While Zenner and the neighbor waited for the police to arrive, Edwards returned to Zenner’s door and requested that she allow him back in the house to retrieve a bag that he had left behind. She refused and told him that the police were on the way and it would be best if he left the scene.
After the police arrived, they discovered Zenner’s phone with blood on it inside a nearby apartment door. In Zenner’s townhouse they found a plastic bag that contained Edwards’ wallet and hospital papers.
The State charged Edwards with one count of aggravated burglary; one count of aggravated robbery, based on the taking of the cell phone and the hammer; and one count of attempted first-degree murder, based on the repeated blows to Zenner’s head. Two weeks later, Edwards was taken into custody in Tulsa, Oklahoma.
At his first trial, a jury acquitted Edwards of aggravated burglary and attempted first-degree murder. The jury was unable to reach a verdict on the charge of aggravated robbery, and the district court declared a mistrial on that count. During Edwards’ second trial, the district court declared a mistrial because a witness improperly testified about prior violent conduct that she had observed Edwards engage in.
At his third trial, a jury found Edwards guilty of aggravated robbery. The district court sentenced Edwards to a high-end guidelines sentence of 247 months’ imprisonment. The Court of Appeals affirmed the conviction in State v. Edwards, 48 Kan. App. 2d 383, 290 P.3d 661 (2012), and Edwards petitioned for review before this court.
The opinion by the Court of Appeals is thorough and analytically sound. Although we granted review with respect to all issues, this opinion will focus on two questions that are matters of first impression before this court.
We initially consider whether taking Zenner’s telephone and hammer were incidental to battery and were therefore insufficient to support a conviction for robbery. Edwards contends that he did not form the specific intent to deprive Zenner of those items and that he merely obtained control over those objects in the course of carrying out some other objective, such as attacking her in her home. In support of this argument, Edwards points to State v. Montgomery, 26 Kan. App. 2d 346, 988 P.2d 258 (1999).
In Montgomery, the Court of Appeals considered a conviction after the defendant attempted to carry out a rape and, during the course of the attack, removed the victim’s glasses in an apparent effort to make it more difficult for her to identify him. The defendant eventually discarded her glasses. He was charged with and convicted of attempted rape and aggravated robbery.
On appeal, tire court concluded that the taking of the victim’s glasses was “incidental” to the crime of attempted rape. Because theft is a lesser included offense of robbeiy and theft is a specific intent crime, the court read into the robbeiy statute a requirement of specific intent and determined that the defendant lacked the necessary intent to deprive the victim permanently of her property. In reversing the conviction of aggravated robbeiy, the court established a precedent that the mere incidental taking of property during the commission of another crime does not meet the “taking” element of robbery. Montgomery, 26 Kan. App. 2d at 350.
Before considering the continuing viability of the Montgomery opinion, we note initially that its underlying theoiy does not fit the facts of the present case. In Montgomery, the defendant removed the victim’s glasses in an effort to help him evade identification, whereas in the present case, Edwards visited Zenner’s apartment for the express purpose of using her telephone, which was one of the objects that he forcibly took from her. He later attacked her and threatened to Mil her with her hammer. The telephone and the hammer were scarcely items “incidental” to the crime; they played key roles in the injuries sustained by tire victim. We recognize, however, that whether a taldng might be incidental or specifically intended would be a question for the jury. We therefore take up the soundness of the Montgomery analysis and conclude that, as a matter of law, the robbery statute does not require any thing more than a forced or coercive taking of property from a victim.
The Court of Appeals in the present case rejected the analysis by the Montgomery panel. 48 Kan. App. 2d at 397-99. The Court of Appeals appropriately began its analysis by looking at the plain language of the statutes in place at the time, K.S.A. 21-3426 and K.S.A. 21-3427.
K.S.A. 21-3426 defined robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” The statutory language requires only a showing that the defendant took property “from the person or presence of another” by coercion. The statute did not require a showing of specific intent to permanently deprive the victim of the property.
Interpretation of statutes presents a question of law over which this court exercises unlimited review. State v. Brooks, 298 Kan. 672, 684, 317 P.3d 54 (2014). The first step in interpreting a statute is to consider the language of the statute, giving common words their ordinary meanings. When a statute is plain and unambiguous, the court will not speculate as to the legislative intent underlying the language and will not read into the statute something not readily found within it. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
The first rule of statutory construction, looking to the plain language enacted by the legislature, therefore supports the State’s position that any taking, incidental or intentional, suffices for a robbery conviction. The statute makes no mention of intent and sets no threshold for a minimum significance of the property taken.
This court has consistently held that robbery is not a specific intent crime, although the Montgomery panel read a specific intent requirement into the statute. See, e.g., State v. Pennington, 281 Kan. 426, 443, 132 P.3d 902 (2006) (“crime of aggravated robbery requires proof only of general intent”); State v. Poulos & Perez, 230 Kan. 512, 515, 639 P.2d 477 (1982) (specific intent to permanently deprive owner of his or her property is not an element of robbery or aggravated robbery); State v. Knoxsah, 229 Kan. 36, 622 P.2d 140 (1981); State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (1980) (aggravated robbery is not a specific intent crime; it requires only general intent); State v. Rueckert, 221 Kan. 727, 732-33, 561 P.2d 850 (1977) (aggravated robbery does not require proof of specific intent, and voluntary intoxication is therefore not a defense).
In Montgomery, the panel was troubled by the fact that theft, a specific intent crime, is a lesser included offense of robbeiy, a general intent crime. Theft is indeed a specific intent crime. See, e.g., State v. Hood, 297 Kan. 388, 393, 300 P.3d 1083 (2013). Theft is also a lesser included offense of robbery. See, e.g., State v. Plummer, 295 Kan. 156, 164, 283 P.3d 202 (2012) (even though the specific intent element that is required to prove theft is not required to prove robbery, theft is a lesser degree of the crime of robbery under K.S.A. 21-3107[2][a]).
The Montgomery panel looked to K.S.A. 21-3l07(2)(b), which provides an elements test for lesser crimes. K.S.A. 21-3107(2)(a), however, provided simply that “a lesser degree of the same crime” may constitute a lesser included offense. Application of the proper subsection of K.S.A. 21-3107(2) avoids the conflict that the Montgomery panel perceived of a lesser crime requiring specific intent and the greater crime requiring only general intent.
The Montgomery panel thus sought to harmonize the elements of two crimes when such harmony was not required. This court has made it clear that robbery does not incorporate the elements of theft. For example, in State v. Lucas, 221 Kan. 88, 90, 557 P.2d 1296 (1976), this court held that for robbeiy, unlike theft, ownership by the victim of the property taken is not an element of the crime.
When the Montgomery panel held that the "taking” set out in tire statutory definition of robbery does not include “incidental” takings that were carried out without “an intent to keep” the property, it unnecessarily added elements to the statutory definition of the crime. 26 Kan. App. 2d at 350. It is the force element that makes robbeiy a crime of greater severity than theft, not the taking element.
The robbeiy statute requires only a forcible taking. Black’s Law Dictionaiy defines “taking,” in both civil and criminal law, as “[t]he act of seizing an article, with or without removing it, but with an implicit transfer of possession or control.” Black’s Law Dictionary 1493 (8th ed. 2004). There is no requirement of specific intent, and there is no requirement that the taking be the motivation for the crime as opposed to an incident of the crime.
Edwards completed the crime of robbery as soon as he forcibly took the telephone and the hammer from Zenner’s hands. The crime of robbery is complete when the individual taires possession of the property, because asportation is no longer required to complete the crime. State v. Kunellis, 276 Kan. 461, 469, 78 P.3d 776 (2003). The State was not required to show that Edwards ever developed the intent to permanently deprive Zenner of those items.
We conclude that the Court of Appeals in the present case properly rejected the Montgomery panel’s analysis. In agreeing with tire lower court, we expressly disapprove of Montgomery.
Edwards raises a second issue that this court has not previously addressed directly. He argues that the district court committed reversible error when it allowed the State to present expert witness testimony without following the procedures set out in K.S.A. 60-226.
The admission and exclusion of the testimony of an expert witness due to concerns about timely notification generally lies within the discretion of the trial court. State v. Bridges, 297 Kan. 989, 998, 306 P.3d 244 (2013). In the present case, however, Edwards argues that a statutoiy obligation lay on the State to notify him well in advance of trial that it intended to call an expert witness. Interpretation of statutes presents a question of law over which this court exercises unlimited review. Brooks, 298 Kan. at 685.
The defense presented the testimony of Mark Goodman, Ph.D., an expert in psychopharmacology. In rebuttal, the State presented the testimony of Timothy Rohrig, Ph.D. Edwards objected to the introduction of Rohrig’s testimony on the grounds that the State failed to provide advance notice of the testimony and failed to give advance access to the records available to the prosecution. On appeal, Edwards complains that the State did not provide notice of an expert witness under K.S.A. 60-226.
The Court of Appeals found no reversible error in this issue, correctly noting that Rohrig was a rebuttal witness and no disclosure or endorsement of rebuttal witnesses is required of prosecutors. 48 Kan. App. 2d at 405. This is the correct conclusion. In State v. Drach, 268 Kan. 636, 646, 1 P.3d 864 (2000), this court held that prosecuting attorneys are not required to disclose or endorse the names of rebuttal witnesses. The court explained: “Because the purpose of a rebuttal witness is to refute testimony given in the case in chief, it would be hard to list rebuttal witnesses in advance, not knowing exactly what detailed testimony may be elicited during the case in chief.” 268 Kan. at 646.
The Court of Appeals did not address whether the K.S.A. 60-226 provisions requiring parties in civil proceedings to provide notice of expert witnesses also govern criminal proceedings. This court has held in the past that the code of civil procedure may apply in criminal proceedings when the code of criminal procedure provides no contrary provisions. See State v. Harris, 259 Kan. 689, 709, 915 P.2d 758 (1996).
K.S.A. 2013 Supp. 60-226(b)(6) requires that a “party must disclose to other parties the identity of any witness it may use at trial to present expert testimony” and sets out the nature of the required disclosure. K.S.A. 2013 Supp. 60-226(b)(6)(C)(i) requires “[a]t least 90 days” notice before the date set for trial to disclose expected expert testimony, and K.S.A. 2013 Supp. 60-226(b)(6)(C)(ii) requires at least 30 days’ notice of rebuttal evidence to an opposing party’s expert witness. It would place a nearly impossible burden on the State to comply with both speedy trial requirements and civil expert witness notice requirements. Furthermore, K.S.A. 22-3201(g) requires the State to endorse the names of all known witnesses on the information at the time it is filed. Rebuttal witnesses would not necessarily fall into this category, because die defense theory and supporting witnesses would be unknown to the State at the time of filing the information.
K.S.A. 22-3212, on the other hand, sets out comprehensive notice and discovery requirements for the parties in criminal trials. If the legislature intended to require special expert witness requirements, it could have placed those requirements in K.S.A. 22-3212, which is precisely what it elected to do in the 2013 legislative session. L. 2013, ch. 133, sec. 12. K.S.A. 2013 Supp. 22-3212(c)(2) now sets out requirements for defense counsel to provide to the prosecution a summary or written report of the testimony of any intended expert witness for the defense but establishes no similar requirement for the prosecution with respect to its witnesses.
We conclude that the civil discovery rules of K.S.A. 60-226 relating to expert witnesses do not apply in criminal proceedings.
Edwards raises numerous other issues on appeal. First, he argues that the State failed to produce sufficient evidence that he took Zenner s property by force. The Court of Appeals correctly cited to those parts of the record showing Zenner s testimony that, even though Edwards initially exercised control over the telephone and hammer without violence or intimidation, he dropped both objects and subsequently forcibly seized them from her possession. He pulled the telephone out of her hand while she was attempting to call 911, and she relinquished control over the hammer after each tried to wrestle it from the other and after she gave him permission to take it so that he would leave the house and stop attacking her. The evidence of a contemporaneous act of physical violence was substantial and uncontroverted.
Edwards also argues the robbeiy statute creates alternative means of committing the crime—taking from the person and taking from the presence of the person. The Court of Appeals rejected this argument, concluding that the robbeiy statute establishes a single means of committing robbery. 48 Kan. App. 2d at 400-02. This court has subsequently ruled on this question in a way consistent with the Court of Appeals’ analysis of the issue. See State v. Littlejohn, 298 Kan. 632, 657, 316 P.3d 136 (2014) (aggravated robbeiy statute contains “absolutely no language” suggesting that taking property from person of or presence of victim establishes alternative means of committing aggravated robbeiy).
Edwards next challenges the instructions given to the jury. He contends it was error not to instruct on incidental taking under Montgomery and not to instruct that force must be used prior to or coincident with the taking in order to constitute robbery. As we determined above, Montgomery is not good law and it was not error to omit an incidental taking instruction. We agree with the Court of Appeals reasoning that the omission of a prior force instruction was not clear error, in light of the uncontested evidence that Edwards grabbed the phone out of Zenner’s hands while she attempted to call 911 and that the two wrestled for control of the hammer after Edwards dropped it.
Edwards challenges tire ruling of the district court limiting the scope of the testimony of his expert witness, Goodman. The district court did not allow Goodman to testify regarding his opinion that Edwards suffers from mental illness and that the hospital should have held him longer for observation. In its opinion, the Court of Appeals rejected the argument that the district court denied Edwards the opportunity to present fully his involuntary intoxication defense. 48 Kan. App. 2d at 405-10. The Court of Appeals also held that there was no error in the exclusion of Goodman’s opinion testimony that the hospital should have held him longer, because even a finding of a judgment error by the hospital would not have helped the jury determine whether Edwards was involuntarily intoxicated by Haldol at the time he committed the robbery. The reasoning by the Court of Appeals is thorough and requires no expansion on our part.
Edwards next suggests that he received prejudicially ineffective assistance of trial counsel. He does not provide a detailed analysis of how the failure to call certain witnesses or to explore certain topics had a negative impact on the development of his defense. The analysis by the Court of Appeals rejecting his claims is thorough, factually accurate, and legally correct.
In his supplemental briefing on review, Edwards argued for the first time on appeal that his conviction was unlawful because the jury was not forced to elect between convicting him based on the initial taking of the telephone and the second taking of the telephone, multiple acts that require jury unanimity. The State filed a motion asking that this court strike the portion of the supplemental brief because it raised a new issue. Edwards filed a response, asserting that he was merely raising a new argument, as opposed to a new issue.
This court is not required to consider issues that are not presented in a petition for review or fairly included in the petition. See Sleeth v. Sedan City Hospital, 298 Kan. 853, 854, 317 P.3d 782 (2014); Stanley Bank v. Parish, 298 Kan. 755, 758, 317 P.3d 750 (2014); State v. Hunziker, 274 Kan. 655, 662, 56 P.3d 202 (2002). The issues properly before this court include all issues properly presented to the Court of Appeals that the petition for review alleges were decided erroneously by the Court of Appeals. State v. Allen, 293 Kan. 793, 795-96, 268 P.3d 1198 (2012); Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 74).
A review of the new arguments that Edwards raised on review leads this court to conclude that he is seeking to raise a point of contention that was not raised below. We therefore grant the motion by the State striking that part of the supplemental brief introducing the new issue.
We conclude that the errors asserted by Edwards, individually and collectively, do not warrant reversal of his conviction and sentence.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Moritz, J., not participating.
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The opinion of the court was delivered by
Biles, J.:
A warrantless entry into a private dwelling by law enforcement officers must fall within a recognized exception to the warrant requirement to be considered reasonable and valid under the Fourth Amendment to tire United States Constitution and § 15 of the Kansas Constitution Bill of Rights. In this case, we consider whether a warrantless entry by police and their ensuing search and seizure were justified under the emergency aid exception when officers entered a locked apartment to assist an unresponsive person but then began a criminal investigation once tire individual was awake and clearly not needing emergency medical assistance. We hold the officers unreasonably exceeded the permissible scope of their warrantless entry and agree with the district court that the drug evidence obtained as a result should be suppressed.
In so ruling, we realign our previous Kansas test for applying the emergency aid exception (also referred to in our caselaw as the “emergency doctrine”) with more recent decisions of the United State Supreme Court. See, e.g., Brigham, City v. Stuart, 547 U.S. 398, 403, 406-07, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (emergency aid exception allows warrantless entry into a dwelling when officers have objectively reasonable basis to believe an occupant is seriously injured or imminently threatened with serious injury). We reverse the Court of Appeals decision reversing the district court’s suppression ruling and remand the case to the district court for further proceedings consistent with our ruling.
Factual and Procedural Background
A landlord at an Emporia apartment complex used his key to enter a tenant’s apartment when the rent was past due. The landlord testified he knocked and entered the apartment around 10:30 a.m. to see if it had been abandoned. As he entered, he saw a man lying on a couch. The man did not respond to the landlord’s attempts to wake him up by yelling and beating on the door. The landlord called 911 and reported, “[Tjhere’s someone in an apartment of mine, and I don’t know who it is, and they won’t wake up.” Two officers and two training officers responded at 10:35 a.m. to a “trespass problem.”
Officer Lane Doty testified he approached the apartment with the landlord, knocked on the door, and identified himself as a police officer. Doty said there was no response. The landlord opened the door, and the officers could see from the doorway a person lying on the couch. Doty testified they attempted to wake him by yelling and again stated who they were. There was still no response. Officers then notified dispatch of the situation, indicating a concern for the unidentified man’s safety. Doty testified, “We weren’t sure what [the man’s] health condition was, and we made entry.”
But the officers were able to wake the defendant, Justin T. Neighbors, who initially appeared to be “groggy, very unstable.” Doty testified Neighbors at first was not able to sit up. Doty said, “[H]e tried to verbalize things and tell us his name, and he was not able to do that for a little bit.” Neighbors eventually did identify himself, and the officers reported his name to dispatch and confirmed he did not have any outstanding warrants.
The officers then began questioning Neighbors about whether he had permission to be in the apartment. Neighbors said he did and informed them the tenant was in jail in Morris County. The officers confirmed with the tenant through their central dispatch that Neighbors had permission to be in the apartment.
In the meantime, officers discovered a woman in the apartment’s back bedroom. The officers had similar concerns regarding the woman’s permission to be there, but they did not contact the tenant as they had done with Neighbors.
While this ensued, Officer Lance Delgado, a narcotics investigator, heard Neighbors’ and the woman’s names broadcast over his police radio. Delgado and Deputy Cory Doudican, a sheriff s deputy with the drug task force, recognized the names as drug offenders and drove to the apartment to investigate. Delgado and Doud-ican both arrived at 10:50 a.m. Doudican testified that within a few seconds after he entered the apartment officers told him Neighbors had permission to be there. The deputy immediately went to the bedroom to speak with the woman.
As Delgado entered the apartment, Neighbors was sitting on the couch. Delgado immediately approached Neighbors; observed a Q-Tip with black residue nearby, which can suggest drug use; and noted Neighbors “seemed a little sleepy.” Delgado said Neighbors looked like a methamphetamine user because he was sweating profusely and gaunt. But Delgado also admitted Neighbors was awake and able to converse. Delgado testified he immediately asked Neighbors if he had any weapons on him. Neighbors said he had a knife in his pants. Delgado instructed him to stand against a wall while he patted him down for weapons and removed the knife.
After this first pat-down search, Delgado told Neighbors to sit on the couch and relax. But believing Neighbors was “possibly in possession of methamphetamine and/or drug paraphernalia,” Delgado obtained consent to search Neighbors’ outer clothing. After finding nothing, Delgado asked Neighbors for consent to search the pants underneath his outer pants. Neighbors paused for a moment but then consented. Delgado discovered a small bag of methamphetamine in the seam area of Neighbors’ boxer shorts. Neighbors was arrested and charged with possession with intent to distribute within 1,000 feet of school property, failure to affix a drug tax stamp, and felony use or possession of drug paraphernalia.
It is not clear when Delgado was told Neighbors had permission to be in the apartment. Delgado testified he spoke to another officer while standing in the living room talking to Neighbors and that this officer told him the tenant had been contacted.
In pretrial proceedings, Neighbors filed a motion to suppress the drug evidence, alleging the warrantless entry and seizure of evidence violated the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights. Neighbors argued any justification for the warrantless entiy based on the emergency aid doctrine dissipated before Delgado arrived and began a drug investigation. If so, Neighbors continued, the officers’ continued presence and subsequent searches were unlawful.
The district court granted the motion to suppress after a hearing but without making any factual findings. The journal entry states only that the motion was granted. Accordingly, the district court’s analysis must be gleaned from its comments during the hearing.
The district court held the officers’ entry was proper given the landlord’s testimony about an unresponsive person inside the apartment. But die district court found the emergency ended once the officers knew Neighbors was lawfully on the premises, which suggests the court believed the trespass investigation was part of the emergency. The court also stated it was not certain how much time elapsed between when Officer Doty learned Neighbors was lawfully present and when Delgado began questioning Neighbors, but it found Neighbors was illegally seized by that point because “the officers exceeded their time spent allowed in the apartment.” The judge went on to hold:
“[I]t’s really two separate investigations. And Delgado comes in later, goes straight to him inside the residence, and starts asking these questions and investigates the case.
“And really at that point, absen[t] some other manifestation of some sort of evidence that would indicate there were drugs on the premises, which I didn’t see, that didn’t exist. So I’m going to suppress the evidence based upon exceeding the reasonable time' allowed to investigate the well-being or the identity of the defendant.”
The State filed an interlocutory appeal. The Court of Appeals reversed, with Judge, now Chief Judge, Malone concurring and dissenting in part. State v. Neighbors, No. 105,588, 2011 WL 5526574 (Kan. App. 2011) (unpublished opinion).
The panel agreed the initial entry into the apartment was permitted under the emergency aid doctrine because Neighbors was unresponsive on the couch. 2011 WL 5526574, at *3. It held Delgado’s subsequent entry was also lawful, stating:
“The 911 call indicating a possible burglary or trespass in progress, coupled with [Delgado’s] personal knowledge of both Neighbors’ and [the other occupant’s] criminal histories, established that Officer Delgado had reasonable grounds to believe that there was an emergency at hand and an immediate need for assistance for the protection of property.” 2011 WL 5526574, at *4.
The majority then examined whether Delgado’s actions once entering were lawful. It characterized Neighbors’ argument as suggesting this situation was no different than an investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (officer who makes legal stop may conduct protective frisk of suspect if officer has reasonable suspicion the suspect is armed and dangerous). The panel then noted the United States Supreme Court had only extended the Terry analysis to allow a protective sweep inside a dwelling, but it held the Terry analysis was nevertheless applicable to determine whether Delgado’s pat-down search violated Neighbors’ constitutional rights. Neighbors, 2011 WL 5526574, at *4-5.
Using that analytical framework, the panel upheld the pat-down search, finding Delgado had a particularized, reasonable suspicion that Neighbors was armed and dangerous. The majority then upheld the consensual pat-down searches of Neighbors’ clothing based on its conclusion that Delgado was lawfully present and had reasonable suspicion of wrongdoing based on the totality of the circumstances. 2011 WL 5526574, at *6. Judge Malone agreed Delgado acquired reasonable suspicion of criminal activity to investigate further, but he would have remanded to the district court to make findings as to whether Neighbors’ consent was voluntaiy. 2011 WL 5526574, at *6-7.
Neighbors petitioned for this court’s review, which was granted under K.S.A. 20-3018(b) and K.S.A. 60-2101(b).
Analysis
Under the Fourth Amendment to the United States Constitution, a warrantless entry into a private dwelling by law enforcement officers is considered unreasonable and invalid unless it falls within a recognized exception to the warrant requirement. Kansas courts interpret § 15 of the Kansas Constitution Bill of Rights to provide the same protection from unlawful government searches and seizures as the Fourth Amendment.
Kansas recognizes various exceptions permitting warrantless entries or searches: consent; search incident to lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; emergency aid; inventory searches; plain view; and administrative searches of closely regulated businesses. State v. Mendez, 275 Kan. 412, 421, 66 P.3d 811 (2003). The principal issue in this case is whether the emergency aid exception applies, but there are aspects of plain view and consent intermingled with what happened. It is the State’s burden to demonstrate that a warrantless entry and the ensuing search and seizure were lawful. See State v. Carlton, 297 Kan. 642, 646, 304 P.3d 323 (2013).
Standard of Review
The standard of review governing motions to suppress is well established and succinctly stated in State v. Karson, 297 Kan. 634, 639, 304 P.3d 317 (2013):
“Our review of an evidence suppression issue is bifurcated. Without reweighing the evidence, the appellate court first examines the district court’s findings to determine whether they are supported by substantial competent evidence. [Citation omitted.] The district court’s legal conclusions are then reviewed de novo. If there are no disputed material facts, the issue [of whether to suppress evidence] is a question of law over which the appellate court has unlimited review. [Citation omitted.]” (Emphasis added.)
But without explanation, the Court of Appeals, after first citing to the correct standard of review, held: “The district court made no factual findings in its order granting the suppression; therefore, our review is under a de novo standard.” (Emphasis added.) Neighbors, 2011 WL 5526574, at *2. The panel does not explain how the absence of factual findings by a district court transforms an appellate court’s bifurcated review into de novo review, and this court is aware of no authority to support the panel’s standard. Inadequate findings do not necessarily permit de novo appellate review of the facts involved in a warrantless search and seizure. Appellate courts do not reweigh conflicting evidence.
When an appellate court is presented with inadequate findings, the proper course taken depends on whether the issue was raised and can be resolved without remand. See State v. Raskie, 293 Kan. 906, 925-26, 269 P.3d 1268 (2012) (remanding because the district court made inadequate findings on defendant’s cruel and unusual punishment argument); see also Drach v. Bruce, 281 Kan. 1058, 1080, 136 P.3d 390 (2006) (district court presumed to have made all necessary factual findings to support its judgment in the absence of an objection to inadequate findings), cert. denied 549 U.S. 1278 (2007).
In this case, Neighbors correctly points out the panel should have remanded if it believed the district court made inadequate factual findings that would have prevented appellate review. We hold the panel erred when it applied a de novo standard of review when faced with what it characterized as inadequate factual findings. Accordingly, we must determine first whether we can proceed. And as discussed below, we hold the district court’s findings as reflected in the hearing transcript are sufficient to analyze and decide the controlling legal issue.
Defining the Emergency Aid Exception
The State argues that the first four officers lawfully entered the apartment under the emergency aid exception. The panel agreed and held the “initial entry by responding officers is not in dispute.” Neighbors, 2011 WL 5526574, at *3. It held further that the record supported application of the emergency doctrine to that initial entry. 2011 WL 5526574, at *3. Neighbors did not petition for review as to that portion of the analysis, so that much is deemed settled. See Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 74); State v. Allen, 293 Kan. 793, 795-96, 268 P.3d 1198 (2012) (party must allege issue was erroneously decided to be properly before the Supreme Court on petition for review). Our dispute focuses on the propriety of the officers’ actions after their initial entry.
Neighbors argues the emergency attenuated after it was determined Neighbors did not need assistance, so the officers exceeded the permitted scope of their entiy into the apartment before Delgado began his narcotics investigation. The State contends the officers were still engaged in a lawful trespass investigation, so Delgado had authority to question Neighbors. The panel took a third approach and effectively applied the emergency doctrine a second time to justify Delgado’s separate entry into the apartment. Neighbors, 2011 WL 5526574, at *4 (“[Rjased on what Officer Delgado knew at the time of his warrantless entry into the apartment, the emergency doctrine justified his warrantless entry onto the property.”). Both the State and the panel misconstrue how the emergency aid exception operates.
United States Supreme Court Emergency Aid Exception Cases
The United States Supreme Court first recognized emergency aid as an exception to the Fourth Amendment’s warrant requirement in Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). In Mincey, an undercover police officer arranged to buy heroin at an apartment and arrived with nine plainclothes narcotics officers. The undercover officer slipped in when the apartment door opened, but the occupant attempted to slam die door to keep die other officers out. Those other officers made a warrandess entry, heard a “rapid volley of shots,” and saw the undercover officer collapse. He later died.
After the shooting, the officers performed a quick search for additional shooting victims. They found four injured persons and requested emergency assistance. The officers refrained from any further criminal investigation. But within 10 minutes, homicide detectives arrived after hearing a radio report about the shooting. These detectives supervised removal of the suspects and then began an “exhaustive and intrusive” warrantless search of the apartment, which lasted 4 days. 437 U.S. at 388-89.
The Mincey Court held: “We do not question the right of police to respond to emergency situations.” 437 U.S. at 392. In so ruling the Court cited numerous state and federal decisions recognizing “tiie Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” (Emphasis added.) 437 U.S. at 392.
But the Mincey Court also cautioned that a warrantless search “must be ‘strictly circumscribed by the exigencies which justify its initiation.’ ” 437 U.S. at 393 (quoting Terry, 392 U.S. at 25-26). And based on that limitation, the Court refused to apply the emergency aid exception because everyone in the apartment had been located before homicide officers arrived to begin their search. Moreover, the 4-day time span for the ensuing search, which included ripping up carpets, could “hardly be rationalized in terms of the legitimate concerns that justify an emergency search.” 437 U.S. at 393. The Court held there were no exigent circumstances justifying the apartment’s warrantless search by the homicide detectives. 437 U.S. at 394.
In its next decision addressing the emergency aid exception, the Court found it applicable. In Brigham City, 547 U.S. 398, four police officers responded at 3 a.m. to a call about a loud house party. Upon arrival, officers saw two juveniles drinking beer in the backyard and four adults attempting to restrain another juvenile by pressing him against a refrigerator with enough force that the refrigerator began sliding across the floor. When the juvenile broke free, he punched one of the adults, who had to spit up blood in a nearby sink. The officers announced their presence, but the occupants did not hear them. The officers then made a warrantless entry resulting in an arrest. Defendant sought to suppress all evidence obtained after the officers entered the home, arguing the warrantless entry violated the Fourth Amendment.
The Court upheld the warrantless entry in a unanimous decision, stating: “One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.” 547 U.S. at 403. Quoting Mincey, 437 U.S. at 392, and Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963), the Court held: “ ' “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” ’ ” Brigham City, 547 U.S. at 403.
The Court also held the officers’ subjective intent upon entering the dwelling was irrelevant, noting the Court’s long-established rule that “an action is reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, "as long as the circumstances, viewed objectively, justify [the] action.’ . . . The officer’s subjective motivation is irrelevant. [Citations omitted.]” 547 U.S. at 404-05. The Court held the officers’ entry was “plainly reasonable under the circumstances” because they had an objectively reasonable basis for believing the injured adult might need help and that the violence in the kitchen was just the beginning of a larger altercation. 547 U.S. at 406. Finally, the Court concluded the manner of the officers’ entry was reasonable because they per formed the equivalent to a knock on the screen door, satisfying the knock-and-announce rule. 547 U.S. at 407.
Mincey and Brigham City, together with Michigan v. Fisher, 558 U.S. 45, 47-49, 130 S. Ct. 546, 175 L. Ed. 2d 410 (2009), are the only decisions by the United States Supreme Court applying the emergency aid exception. The facts in these cases restrict the exception’s application to circumstances when there is an objectively reasonable basis for believing an occupant in a dwelling is “seriously injured or imminently threatened with such injury.” 547 U.S. at 400, see Fisher, 558 U.S. at 47-49; Mincey, 437 U.S. at 392 (“[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.”). This is seen in how the Court articulated the exception and its reliance on the often-quoted rationale advanced by then Circuit Judge Warren E. Burger in Wayne, in which he stated:
“[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” 318 F.2d at 212.
One additional case is relevant to understanding the development of the Kansas caselaw discussed next. Almost 20 years before Brigham City, the Court decided Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). In that case, an off-duty Chicago policeman was arrested for drunk driving. The officer’s car was towed and left outside a nearby garage where the arresting officers conducted a warrantless search of the vehicle because department policy required off-duty personnel to carry a service revolver and they thought a gun might be in the car. The searching officers found evidence linking Cady to a recent homicide. Cady appealed his eventual homicide conviction, arguing the automobile search violated the Fourth Amendment. The Court upheld tire search. 413 U.S. at 448.
The Cady Court reasoned that officers must “engage in what, for want of a better term, may be described as community caret-aking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to tire violation of a criminal statute.” 413 U.S. at 441. It held the search was justified under this caretaking function to protect “the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle.” 413 U.S. at 447. The Cady Court also held the police had a reasonable belief Cady’s car contained a gun. 413 U.S. at 448.
But the Cady Court took great pains to emphasize the search in that case involved an automobile—not a dwelling. It explained:
“The Court’s previous recognition of the distinction between motor vehicles and dwelling places leads us to conclude that the type of caretaldng ‘search’ conducted here of a vehicle that was neither in the custody nor on the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable solely because a warrant had not been obtained.” 413 U.S. at 447-48.
And consistent with this distinction, several federal Circuit Courts of Appeals have applied a community caretaldng exception only to automobile searches. See, e.g., United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994) (“We agree with this line of authority holding the community caretaking exception to the warrant requirement is applicable only in cases involving automobile searches.”); United States v. Erickson, 991 F.2d 529, 532 (9th Cir. 1993) (“Cady clearly turned on the ‘constitutional difference’ between searching a house and searching an automobile.”); United States v. Pichany, 687 F.2d 204, 208-09 (7th Cir. 1982). As discussed below, our caselaw at times has conflated the community caretaldng function with the emergency aid exception.
The Emergency Aid Exception in Kansas
In 1978, as an issue of first impression in Kansas, the Court of Appeals excused a warrantless entry by police responding to an apartment fire, which subsequently led to the seizure of drugs found in plain view during a search for occupants. State v. Jones, 2 Kan. App. 2d 38, 41, 573 P.2d 1134 (1978) (Jones I). It is significant to note Jones I predated Mincey.
Although focused on the plain-view exception, the Jones I court first had to determine whether the officers had a legitimate prior justification for the initial intrusion that afforded them their plain view of the incriminating evidence at issue. And in upholding the search, the court observed: “Among the well-established legitimate reasons’ for a police officer to be present on privately occupied premises is in response to an emergency.” 2 Kan. App. 2d at 41 (citing Wayne; State v. Boyle, 207 Kan. 833, 839, 486 P.2d 849 [1971]). The Jones I court relied in part on then-judge Burger’s statement in Wayne that the “ ‘need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ ” 2 Kan. App. 2d at 41 (quoting Wayne, 318 F.2d at 212).
The Jones I court and the federal cases it relied on articulated a limited exception allowing warrantless entry when necessary to provide emergency medical assistance. This exception and its rationale were consistent with the federal and state caselaw at that time. But 19 years later, in another case involving a warrantless entry into an apartment, the justification was expanded by the Court of Appeals to include protection of property. State v. Jones, 24 Kan. App. 2d 405, 409-17, 947 P.2d 1030 (1997) (Jones II). In Jones II, the court adopted a three-part test for the emergency doctrine, offering first a different rationale for the exception, stating:
“The emergency doctrine reflects a recognition that tire police perform a community caretaldng function which goes beyond fighting crime. [Citation omitted.] Under this junction, the community looks to the police to render aid and assistance to protect lives and property on an emergency basis regardless of whether a crime is involved. Warrantless entries into and searches of private property pursuant to this exception are not prohibited by the Fourth Amendment to tire United States Constitution or by Section 15 of the Kansas Constitution Bill of Rights.” (Emphasis added.) 24 Kan. App. 2d at 409-10.
It then adopted its three-part test from People v. Mitchell, 39 N.Y.2d 173, 177-78, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976):
“ ‘(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
“ ‘(2) The search must not be primarily motivated by intent to arrest and seize evidence.
“ ‘(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.’ ’’Jones II, 24 Kan. App. 2d at 413.
In 2003, this court considered the emergency aid exception for the first time and accepted the three-part test from Jones II. See Mendez, 275 Kan. at 425-29 (uninvited, nonconsensual entry into private residence when no emergency existed did not justify exception to Fourth Amendment warrant requirement). Thereafter, that test was applied in all subsequent cases until the United States Supreme Court decided Brigham City. See State v. Drennan, 278 Kan. 704, 720-22, 101 P.3d 1218 (2004) (applying three-part test); State v. Horn, 278 Kan. 24, 31-37, 91 P.3d 517 (2004) (applying three-part test).
But this court has not considered the emergency aid exception since Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006), although the Court of Appeals has interpreted Brigham City to eliminate the test’s second prong (search not primarily motivated by intent to arrest and seize evidence). See State v. Geraghty, 38 Kan. App. 2d 114, 124, 163 P.3d 350, rev. denied 285 Kan. 1175 (2007). Neighbors’ case provides us the opportunity to revisit the exception in light of Brigham City. And we have determined some modification is necessary.
Refinement of the Emergency Aid Exception
Many jurisdictions followed the Mitchell three-part test before Brigham City was issued. See, e.g., United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006) (recognizing the Tenth Circuit Court of Appeals followed the three-part test before Brigham City). But Brigham City, 547 U.S. at 404-05, explicitly overruled the second factor and called into question the exception as articulated under the three-part test. The Kansas Court of Appeals’ modification to the test in Geraghty was no doubt an attempt to follow this court’s precedent to the extent allowed under Brigham City, but that revised test continues to be broader than the emergency aid exception recognized by the United States Supreme Court under the Fourth Amendment.
One problem with the current Kansas test, even as modified by the Court of Appeals in Geraghty, is that it jumbles the community caretaking function recognized in Cady with the emergency aid exception cases. See Shapiro, The Road to Fourth Amendment Erosion Is Paved with Good Intentions: Examining Why Florida Should Limit the Community Caretaker Exception, 6 Fla. Int’l. U. L. Rev. 351, 357-60, 361-64 (Spring 2011) (defining community caretaker exception and differentiating it from the emergency aid exception). In other words, emergency aid is a limited exception applicable only when aiding an occupant who is seriously injured or imminently threatened with injury. See Brigham City, 547 U.S. at 400, 403. Our statement of the exception needs to be more constrained.
The Mitchell three-part test previously followed in Kansas applies the exception to circumstances involving the immediate need for assistance for the protection of life or property. But the doctrine’s extension to property protection is inconsistent with current federal caselaw and the rationale for the exception. The Brigham City Court clearly reflects that the emergency aid exception turns on whether there is “an objectively reasonable basis for believing an occupant is seriously injured or imminently threatened with such injury.” 547 U.S. at 400. That statement accurately defines the emergency aid exception to the warrant requirement.
The Tenth Circuit Court of Appeals’ current test integrated Brigham City’s manner and Mincey’s scope requirements into a standard used by that court, which now involves whether “(1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others; and (2) the manner and scope of tire search is reasonable.” United States v. Gordon, 741 F.3d 64, 70 (10th Cir. 2014). But it is not entirely clear why the Tenth Circuit expands the first factor to include officer protection because the caselaw already recognizes a stand-alone officer safety exception. See State v. Campbell, 297 Kan. 273, 280, 300 P.3d 72 (2013) (“If an officer can articulate how the presence of a weapon affected die officer’s safety, this court has interpreted the Fourth Amendment to allow a warrant- less entry into a person’s home based upon officer safety concerns.”).
Accordingly, the emergency aid exception must be seen as a limited exception permitting a warrantless search when: (1) law enforcement officers enter the premises with an objectively reasonable basis to believe someone inside is seriously injured or imminently threatened with serious injury; and (2) the manner and scope of any ensuing search once inside the premises is reasonable. Our prior caselaw holding otherwise is overruled.
With the articulation of this revised test for what we now will more accurately term the “emergency aid exception,” we consider next its application to the facts in this case.
Application of the Emergency Aid Exception
It is undisputed that Officer Doty and the three other responding officers lawfully entered the apartment under the emergency aid exception. Neighbors’ concern is that the officers exceeded the exception’s scope following their initial entiy by remaining in the apartment after Neighbors was awake and his right to be in the apartment confirmed. Using the Mincey Court’s language, the issue is whether the events occurring after entry were “ ’strictly circumscribed by the exigencies which justify its initiation.’ ” 437 U.S. at 393 (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]); see also State v. Walker, 292 Kan. 1, 13, 251 P.3d 618 (2011) (“ ’In other words, we must determine whether running a warrants check [during an investigatory detention] was “reasonably related in scope to the circumstances which justified the interference in the first place.” ’ ”). We hold they were not.
In this case, both lower courts correctly held the emergency aid exception permitted the initial entry. The officers knew an unresponsive male was seen lying on the couch and could not be awakened by yelling or pounding on the front door. This was sufficient to establish an objectively reasonable basis to believe someone inside tire apartment could be seriously injured. And while there may have been other concerns related to the landlord’s trespass claim, any subjective motivation harbored by tire officers prior to their initial entry regarding a trespass investigation was irrelevant so long as the actions were reasonable when viewed objectively. See Brigham City, 547 U.S. at 405; Arkansas v. Sullivan, 532 U.S. 769, 771-72, 121 S. Ct. 1876, 149 L. Ed. 2d 994 (2001) (An objectively reasonable search based on probable cause will not be rendered invalid even when the motive for the search was pretextual.).
Notably, tire parties do not focus on whether the responding officers were permitted to begin a trespass investigation once Neighbors was awake and responsive. Instead, their arguments focus on Officer Delgado’s actions, which came after the trespass investigation. We consider Delgado’s conduct next.
The State relies on People v. Hochstraser, 178 Cal. App. 4th 883, 100 Cal. Rptr. 3d 728 (2010), for authority that Delgado’s arrival and search was lawful. But that case is inapposite. There, a woman’s daughter made a missing persons report and indicated there had been a domestic violence incident the night before. Responding officers went to the woman’s apartment, knocked several times, and announced their presence and purpose to no avail. Officers then made a warrantless entry to check on her welfare, which the court upheld under the emergency aid exception. 178 Cal. App. 4th at 899-901. Upon entering, the officers encountered the woman’s boyfriend, who stated she had left that morning but he did not know where she was. Officers noticed an open window on a cold, windy night and a “ ‘chloriney’ ” smell reminiscent of a cleaned-up crime scene; then in plain view, they observed a spotless bathroom in an otherwise messy apartment; sawzall blades in the kitchen and living room; the victim’s personal items such as cell phone, keys, and identification; the boyfriend’s spacey demeanor and lack of concern; facial redness and cuts on his face and hands, together with tire boyfriend’s admission of a domestic violence incident the previous night; and his disregard of a ringing telephone. The officers were suspicious and searched the house and the boyfriend’s car. The woman’s body parts were in the car.
Charged with her killing, the boyfriend sought to suppress the evidence. The court addressed whether the house or car search impermissibly extended the “justification to render emergency aid to someone inside the home.” 178 Cal. App. 4th at 901. The court ruled it did not. The Hochstraser court noted that based on the officers’ observations they were justified in continuing their investigation into the woman’s whereabouts. 178 Cal. App. 4th at 903. But it upheld the automobile search under the automobile exception, not the emergency aid exception. 178 Cal. App. 4th at 904.
Hochstraser is consistent with the line of cases recognizing an officer may continue an emergency investigation until assured there is no one inside in need of assistance—particularly when the officer encounters circumstances that continue to raise suspicions. See 3 LaFave, Search and Seizure § 6.6(a), pp. 620-23 & n.64-65 (5th ed. 2012) (discussing various circumstances and citing numerous cases supporting this proposition). The State’s problem is that the officers in Neighbors’ case were not continuing an emergency investigation because Neighbors was alert and responsive. In other words, the purpose for their entry'—rendering emergency aid—no longer existed. The responding officers had shifted their focus to a trespass investigation, while Delgado, who would arrive on the scene even later, entered the premises to launch his own narcotics investigation.
Neighbors’ case is more like the United States Supreme Court’s Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), decision in which homicide detectives heard a radio dispatch about a shooting during a narcotics sting operation and reported to tire scene 10 minutes later. The homicide detectives then began an extensive warrantless search of the apartment, even though other officers had already identified the apartment’s occupants and called for emergency assistance. The Mincey Court held the homicide detective improperly exceeded the emergency investigation’s scope. 437 U.S. at 393-94.
The emergency aid exception gives an officer limited authority to “do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.” 3 LaFave, Search and Seizure § 6.6(a), p. 622 & n.65. The officer also is limited in the areas of the premises that can be searched. See, e.g., Najar, 451 F.3d at 718-20 (holding officers were entitled to search areas where a person needing assistance could be found); United States v. Russell, 436 F.3d 1086, 1090-93 (9th Cir. 2006) (upholding search limited to areas in which a criminal could be hiding or a victim found). And the right of entry dissipates once an officer confirms no one needs assistance or the assistance has been provided. See, e.g., United States v. Cervantes, 219 F.3d 882, 891-92 (9th Cir. 2000) (second entry unlawful after fear that methamphetamine lab would explode was dispelled); United States v. Goldenstein, 456 F.2d 1006, 1010-11 (8th Cir. 1972) (after realizing no one required aid within hotel room, search of suitcase was illegal).
To be sure, once inside, officers may seize any evidence of a crime in plain view during the course of their legitimate emergency activities. See Horn, 278 Kan. at 36 (citing Mincey, 437 U.S. at 392-93). But an officer must be lawfully present to invoke the plain-view exception. See State v. Fisher, 283 Kan. 272, 293-94, 154 P.3d 455 (2007) (plain view “deals with circumstances in which an officer has already justifiably intruded into a constitutionally protected area and then spots and removes incriminating evidence”). And the object’s incriminating character must be immediately apparent without conducting some further search of the object. State v. Wonders, 263 Kan. 582, 590, 952 P.2d 1351 (1998); see Gordon, 741 F.3d at 71 (citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d 334 [1993]).
In Neighbors’ case, the only evidence arguably in plain view was the Q-Tip, and it is unclear from the record whether it was even confiscated. The only testimony at the suppression hearing was that Delgado observed it, but there was no testimony indicating it was tested for drugs. But even assuming Neighbors’ motion to suppress included the Q-Tip, it is questionable whether the seizure could be upheld under the plain-view exception because its incriminating nature was not apparent without conducting some further search of it. More importantly, and as discussed next, Delgado was not lawfully present from the outset, so his discovery of the Q-Tip fell outside the justification for the initial entry.
The only report of an emergency came from the landlord, who informed officers there was an unresponsive male on the couch. In light of that limited emergency, the responding officers imper-missibly exceeded the scope of the emergency when they began investigating the landlord’s trespass allegations. And like the homicide detectives’ apartment search in Mincey and the suitcase search in Goldenstein, the trespass investigation was wholly unrelated to the perceived medical emergency. The emergency aid exception could not be invoked as a basis for validating the trespass investigation. The responding officers were required to leave the apártment once it was clear the occupants did not need medical assistance.
The evidence presented at Neighbors’ suppression hearing does not establish a firm time line as to when the officers found and were able to speak with the woman located in the back bedroom, so there is some latitude in determining when the cutoff for the emergency aid exception occurred. But the record does establish that officers had already obtained her name and ascertained that she did not need medical assistance before Delgado arrived, so the evidence is at least clear that any concern for rendering emergency assistance had ended. The State cannot rely on any medical emergency to invoke the emergency aid exception to validate Delgado’s later entry and ensuing search.
Nor can the search be saved under the notion that the events occurred within a short time period. In Mincey, the homicide detectives arrived within 10 minutes and that search was held unlawful because it exceeded the scope of the exigency. 437 U.S. at 393; cf. State v. Morlock, 289 Kan. 980, 996, 218 P.3d 801 (2009) (“An officer is not required to disregard information which may lead him or her to suspect independent criminal activity during a traffic stop. When the ‘responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.’ ”).
We also cannot accept the panel’s rationale—adopted absent argument by the State—that a different emergency triggered the emergency aid, rendering Officer Delgado’s entry lawful. The panel surmised that Officer Delgado heard a 911 call indicating a possible “burglary or trespass in progress.” Neighbors, 2011 WL 5526574, at *4. And that information coupled with his personal knowledge of both Neighbors’ and the woman’s criminal histories established reasonable grounds to believe there was an emergency at hand and an immediate need for assistance for the protection of property. 2011 WL 5526574, at *4. But the State has not alleged the officers had probable cause combined with exigent circumstances allowing a warrantless entiy, so we do not entertain that possibility.
One additional problem we note with the panel’s analysis is that it seems to create an end run around the probable cause requirement by characterizing a criminal investigation itself as an emergency. See 3 LaFave, Search and Seizure § 6.6(b), pp. 623-30 (discussing exigent circumstances allowing warrantless entry on private property to protect property; citing numerous cases). We reject that suggestion. We cannot find any previous Kansas case invoking the emergency aid exception for the protection of property. See Drennan, 278 Kan. at 721-22 (welfare check); Horn, 278 Kan. at 34-37 (welfare check); State v. Mendez, 275 Kan. 412, 413, 66 P.3d 811 (2003) (assisting juvenile); Jones I, 2 Kan. App. 2d at 38, 42 (search for occupants in smoke-filled apartment); State v. Manley, No. 104,915, 2011 WL 5389881, at *3-6 (Kan. App. 2011) (unpublished opinion) (911 call fearing injured neighbor); see also State v. Swansen, No. 100,331, 2009 WL 401007, at *4-7 (Kan. App. 2009) (unpublished opinion) (holding emergency doctrine did not apply to search of methamphetamine lab). And as mentioned earlier, this expansion of the exception would be difficult to reconcile with Brigham City.
We hold the emergency aid exception—as articulated in Brigham City—does not apply to the protection of property. We hold further that the potential medical emergency that justified the four officers’ initial entry into the apartment abated prior to the time Delgado arrived.
Having held the officers’ authority to remain in the apartment ended once its occupants were determined not to need emergency assistance, it is unnecessary to address the panel’s other holdings that (1) Delgado had reasonable suspicion to believe Neighbors was armed and dangerous; (2) Terry applies to pat-down searches inside a home; and (3) Neighbors’ consent to search was valid. Finally, the State has not argued the evidence is admissible under the United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), good-faith exception to the exclusionaiy rule, so that argument is waived. See State v. Hicks, 282 Kan. 599, 617-18, 147 P.3d 1076 (2006).
The Court of Appeals’ judgment reversing the district court is reversed. We affirm the district court’s suppression holding. | [
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The opinion of the court was delivered by
Biles, J.:
Kelvin H. Gibson, Jr., appeals his first-degree murder and aggravated robbery convictions, raising two issues related to the district court’s determination that inculpatory statements he made to police were voluntary. First, he contends the court failed to make necessary factfindings when concluding the statements were voluntary; and, alternatively, the record is insufficient to support that conclusion. Second, he argues structural error occurred when he was not allowed to testify in support of his motion to reconsider. We affirm.
Factual and Procedural Background
Gibson was convicted in the October 6, 2008, killing of Phillip Martin, who was found dead on his kitchen floor from multiple gunshot wounds in what appeared to be a drug-related crime. See State v. Harris, 297 Kan. 1076, 306 P.3d 282 (2013) (affirming convictions of Katron Harris involving the same killing).
While investigating, police learned Martin had sold drugs from his home and that Gibson may have been involved with Martin’s drug transactions. Officers located Gibson, who was 17 years old at the time. He gave detectives two statements in which he implicated himself in the killings. He was charged with first-degree murder and aggravated robbeiy.
Before trial, the State moved for a determination as to the admissibility of Gibson’s inculpatory statements to police. The district court conducted an evidentiary hearing at which Gibson had the opportunity to challenge tire voluntariness of those statements. See State v. Bogguess, 293 Kan. 743, 751, 268 P.3d 481 (2012) (State has burden to prove defendant’s statement was voluntary; truthfulness not at issue); accord Jackson v. Denno, 378 U.S. 368, 376, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
At the outset of the hearing, the district court asked if Gibson intended to call any witnesses. His attorney responded in the negative. The State called only one witness, William Michael, a police detective. We draw the facts relating to Gibson’s two statements primarily from Michael’s testimony, except as indicated.
The October 12, 2008, interview
The detectives located Gibson on October 12,2008, at his home. Gibson was in the backyard. He was not a suspect at this time. The detectives identified themselves and told Gibson they were investigating Martin’s killing. They asked Gibson if he would accompany them to their office to discuss his association with Martin. The detectives knew they would have had no choice but to leave if Gibson said he did not wish to talk with them, but Gibson agreed to go.
Before they left for the station, Gibson said he was at Martin’s house during the shooting. Michael testified that this statement still did not make Gibson a suspect but did make him “a very good witness.” Gibson was not under arrest, was not placed in handcuffs, and the detectives did not consider him to be in custody. They went to the station in the detectives’ vehicle. Michael could not recall Gibson asking whether he could contact his parents.
The detectives placed Gibson in an interview room at about 4 p.m. and began the interview at approximately 4:30 or 5 p.m. The only people in the room were Gibson and the two detectives. Gibson was not initially advised of his Miranda rights because he was only a possible witness, not a suspect. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966).
During the interview, Gibson admitted taking part in the shooting. He told the detectives two other individuals—“Tyree” and “D’Andre”—entered Martin’s house, shot Martin, and told Gibson to shoot Martin or they would kill him too. At that point, the detectives stopped the questioning and administered the Miranda rights to Gibson. They did this by giving Gibson an “advice of rights” form that had the Miranda warnings printed on it. The detectives had Gibson read the form out loud to make sure he was a competent reader. Gibson read the Miranda rights, and Michael read them back to him. Michael circled the word “coercion” and explained to Gibson that it meant “force.” Michael told him the detectives did not want to force him to say anything that he did not understand or without knowing what he was doing. Gibson signed the form, which was admitted as evidence at the Jackson v. Denno hearing.
Michael testified Gibson’s demeanor did not change after he was Mirandized. He described Gibson as cooperative and very polite during questioning. Gibson did not appear to be under the influence of drugs or alcohol, did not slur his speech, and responded appropriately to questions. On cross-examination, Michael said Gibson did not say he was on any lands of drugs—a point Gibson later disputed, but not at the hearing.
Michael could not recall Gibson’s age at the time of the interview, although the detective’s notes reflected that he knew Gibson was 17. He also did not recall asking Gibson about his education level. But Michael testified that nothing indicated to him that Gibson was too young to understand what was happening.
The detectives later took a recorded video statement from Gibson at approximately 7:45 p.m., some 3½ hours after arriving at the police station. A transcript from that recorded statement was admitted at the hearing. That transcript was not included with the record on appeal, but the video is part of the record. It reflects that, during this interview, Gibson told the detectives he was not under the influence of drugs or alcohol but had smoked marijuana hours before the officers made contact with him at his home. Gibson also acknowledged that prior to the making of the recorded statement, he had examined computerized mug shots with the officers in an effort to identify Tyree or D’Andre and had taken bréales to smoke cigarettes.
During the entire encounter, Gibson did not ask to stop, did not ask for an attorney, and did not revoke his Miranda waiver. Michael testified he would have let Gibson call his parents any time during the “witness” portion of the interview, but only “in a timely fashion” during the custodial portion. Michal also testified neither detective raised his or her voice to Gibson. No physical threats, verbal threats, or promises were made. Michael did admit, though, that he might have told Gibson not to “bullshit” him.
The October 14, 2008, interview
After the first interview, the detectives investigated the individuals Gibson identified as Tyree and D’Andre. Tyree did not appear to be a suspect, and the detectives could not locate D’Andre. To follow up, the detectives went to the juvenile detention center where Gibson was being held. They Mirandized Gibson again, and Gibson signed another waiver form after the detectives went over it again with him. That form was also admitted as an exhibit at the hearing. The detectives did not make physical or verbal threats. Gibson did not appear to be under the influence of drugs or alcohol. Michael testified the questioning was not confrontational.
The video recording made during this interview was 37 minutes long. A transcript of it was admitted into evidence at the hearing. The video was made part of the record on appeal.
The district court ruling and further proceedings
At the Jackson v. Denno voluntariness/suppression hearing, after Gibson’s attorney finished cross-examining Detective Michael, the district court again asked defense counsel, “[Y]ou don’t have any evidence?” Gibson’s attorney responded no. The State then asked the court to conclude Gibson’s statements were voluntary based on what it called “undisputed” evidence. In response, Gibson’s attorney conceded, “[F]rom the testimony of Detective Michael, he gave it voluntarily. I would note that he was 17, ... I know legally he’s allowed to give a statement and he . . . tells me . . . that he was very afraid.”
The district court allowed both the October 12 and October 14 statements to be admitted. The judge ruled, “I can find no constitutional violations. [They] appearf] to be voluntarily and knowingly given.” The district court made no additional findings of fact and did not elaborate on the reasons for its conclusions. Gibson did not request any additional findings from the court.
About 4 months after the district court’s Jackson v. Denno ruling, Gibson’s attorney moved to reconsider the suppression ruling. The motion alleged that Gibson had told Michael while making the first recorded statement that he was under the influence of marijuana and that this made the statement involuntary as he was unable to understand his Miranda rights. The motion further argued that the subsequent statement must be suppressed as well because it arose from the information given in the first statement. The court did not immediately schedule a hearing for consideration of this motion.
Approximately 4 months after the motion for reconsideration was filed, Gibson filed a pro se “First Amended Motion to Suppress Statement.” In this document, he alleged he was only 17 when he gave the statements, he was “overly impressed and felt intimi dated” by the detectives, and he had told Michael he was under the influence of marijuana. He argued these things made his statements coerced and involuntary.
The morning of trial, about a month after Gibson filed his pro se motion, the court took up Gibson’s motion. At first, Gibson’s counsel announced that Gibson wanted counsel to “address the Court about it.” Arguments by the attorneys then ensued. Defense counsel explained the basis for reconsideration was the “uncon-troverted fact” that Gibson was under the influence of marijuana at the time of his first statement, was then 17 years old, very confused, and felt “overborne” by Detective Michael. The State’s counsel argued those issues were dealt with and ruled on at the first hearing, so there was nothing new to be considered.
The court then inquired whether Gibson had testified at the original suppression hearing and was told he had not. The court then ruled the amended pro se motion to suppress would be denied “for the same reasons mentioned at the first prior hearing.” The court then reiterated that based on the evidence at the first hearing, Gibson’s statements were voluntary, defendant was not “under undue influence from any alcohol or drugs and the statement was voluntarily given not only the first time, but the second time.”
Defense counsel then asked for clarification, so the district court added, “[Gibson] made appropriate answers to the questions. He didn’t say anything out of context or indicate that he was in any way under the influence such that he didn’t understand what was going on.” The court then went on to explain that to the extent Gibson’s earlier use of marijuana was conceded at the first hearing, “apparently it was not to the extent that it affected his ability to understand what was going on nor did it affect his ability to voluntarily waive his rights to incriminate himself.”
Gibson’s counsel then asked, “Would the Court put him under oath just to be on the record so he can put that on the record?” The court rejected the proffer, noting it had already conducted a prior Jackson v. Denno hearing at which Gibson was given “every opportunity to raise anything that might have affected his ability to give a fair and a voluntary and knowing statement and apparently he did not do so.”
A jury convicted Gibson of first-degree murder and aggravated robbery. The district court sentenced Gibson to life imprisonment, with a minimum term of 20 years, for first-degree murder and to a consecutive 61-month prison term for aggravated robbery. Gibson’s presentence investigation report revealed only two prior offenses: unscored misdemeanor convictions for failure to carry'motor vehicle liability insurance.
Gibson timely appealed. Jurisdiction is proper pursuant to K.S.A. 22-3601(b)(l) (off-grid conviction; life imprisonment).
Gibson’s Statements Were Voluntarily Given
Gibson contends, in the alternative; that (1) his case must be remanded for more detailed findings to support the district court’s conclusion that Gibson’s statements were voluntary or (2) the record is insufficient to sustain the district court’s conclusion that his statements were voluntary and his convictions must be reversed. We hold the record is sufficient to review and conclude the district court did not err.
Standard of Review
Given the way Gibson frames his issues, it makes sense to revisit first how the district court must proceed before going directly to what standards are applicable on appellate review.
When challenged, the prosecution must prove by a preponderance of the evidence the voluntariness of a defendant’s inculpatory statement to a law enforcement officer. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). In determining whether a defendant’s statement to a law enforcement officer was freely and voluntarily given, a trial court usually looks at tire totality of the circumstances surrounding the statement and determines its vol-untariness by considering the following nonexclusive factors: (1) the accused’s mental condition; (2) the manner and duration of the interview; (3) the accused’s ability to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the officer’s fairness in conducting the interview; and (6) tire accused’s fluency with the English language. 297 Kan. at 326 (quoting State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 [2010]).
When the accused is a juvenile, Kansas courts must exercise the greatest care in assessing whether the juvenile’s inculpatory statement to law enforcement was voluntary. State v. Mays, 277 Kan. 359, 373, 85 P.3d 1208 (2004). A juvenile’s inculpatory statement must be voluntary and free from coercion or suggestion and must not be the product of ignorance of rights or adolescent fantasy, fright, or despair. State v. Young, 220 Kan. 541, 546, 552 P.2d 905 (1976); accord In re Gault, 387 U.S. 1, 55, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). In assessing the voluntariness of a juvenile’s inculpatory statement to police, Kansas courts have articulated five nonexclusive factors for consideration, commonly referred to as the Young factors: (1) the juvenile’s age; (2) the length of questioning; (3) the juvenile’s education; (4) the juvenile’s prior experience with police; and (5) the juvenile’s mental state. Mays, 277 Kan. at 373; see Young, 220 Kan. at 546-48 (stating and discussing factors). Clearly, there is overlap among the factors articulated in a case involving a juvenile and those usually considered when the volun-tariness of a defendant’s statement to police is at issue; but just as clearly, our caselaw recognizes a heightened sensitivity when the accused is a juvenile.
When applying the appropriate factors to determine the volun-tariness of an accused’s statement to police:
“ 1 “[T]hese factors are not to be weighed against one another . . . , with those favorable to a free and voluntary statement offsetting those tending to the contrary. Instead, tire situation surrounding tire giving of a statement may dissipate tire import of an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances an accused’s will was overborne and tire incuplatory statement was not a free and voluntary act.” [Citations omitted.]’ ” Randolph, 297 Kan. at 326 (quoting State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 [2009]).
On appeal of a trial court’s determination regarding the volun-tariness of a defendant’s inculpatory statements, an appellate court applies a dual standard when reviewing the trial court’s decision on a suppression question. First, the factual underpinnings of the decision are reviewed under a substantial competent evidence stan dard. Next, the appellate court reviews the trial court’s legal conclusion drawn from those facts de novo. An appellate court does not reweigh evidence, assess witness credibility, or resolve conflicting evidence. Randolph, 297 Kan. at 326-27.
Discussion
Gibson first argues his convictions should be reversed, or the case remanded for additional factfinding, because the district court failed to make detailed findings when it ruled on his statements’ admissibility. The State counters that Gibson failed to preserve this issue because he did not object to what he now claims are inadequate factual findings at any time during the district court proceedings. The State further argues the district court did make the necessaiy findings when it concluded Gibson’s statements were voluntarily and knowingly given and that there was no evidence of a constitutional violation.
The State correctly points out that the duty to ensure adequate factual findings for appellate review is borne chiefly by the district court. See K.S.A. 60-252; Rule 165(a) (2013 Kan. Ct. R. Annot. 265) (district court determining contested matter must set out findings of fact and conclusions of law). But the party who seeks to raise on appeal an issue that turns on the factual determinations also bears some responsibility. See K.S.A. 60-252(b); State v. Boleyn, 297 Kan. 610, 630-31, 303 P.3d 680 (2013) (noting failure to object to lack of findings regarding necessary factors precluded appellate consideration of constitutional cruel or unusual punishment challenge; if necessary, defendant must file motion invoking judge’s duty under Rule 165 to ensure sufficient findings for appellate argument); cf. State v. Herbel, 296 Kan. 1101, 1119-20, 299 P.3d 292 (2013).
Although this court has cautioned that the best practice when determining the voluntariness of a juvenile’s inculpatory statements given to police is to consider on the record each of the applicable factors, that warning is invariably accompanied by a disclaimer that “[t]he district court need not explicitly consider these factors on the record.” State v. Ramos, 271 Kan. 520, 525, 24 P.3d 95 (2001); see also State v. Makthepharak, 276 Kan. 563, 567, 78 P.3d 412 (2003) (“To date, we have not required that a district court expressly review the factors set out in the Young case on the record. We have, however, strongly suggested that the factors be considered.”); State v. Bell, 276 Kan. 785, 796, 80 P.3d 367 (2003) (same); State v. Davis, 268 Kan. 661, 675-76, 998 P.2d 1127 (same), cert. denied 531 U.S. 855 (2000).
In Gibson’s case, the trial court had before it the detective’s testimony; the advice of rights forms signed by Gibson and initialed on each sentence individually setting out certain rights; transcribed copies of Gibson’s video statements; and counsel’s arguments. The latter included an express acknowledgement by Gibson’s lawyer that “obviously—from the testimony of Detective Michael[ ], [Gibson] gave [his statements] voluntarily.” And the district court also gave Gibson an opportunity to present evidence before ruling, which Gibson declined. From all of this, the court found Gibson’s statements were voluntarily and knowingly given and were made without any constitutional violation. In addition, at the hearing on the motion for reconsideration, the district court noted from the evidence that Gibson was not under undue influence from alcohol or drugs, made appropriate answers to the questions posed to him by detectives, and appeared to understand what was going on during the interviews.
Based on the facts presented, the applicable factors, and our caselaw, we hold the record is sufficient for appellate review. It is evident the analysis and outcome on the voluntariness issue would not have changed even if the trial court had been more explicit about the factors it considered. See Makthepharak, 276 Kan. at 567.
In asking this court to consider the totality of the circumstances surrounding the October 12, 2008, interview, Gibson focuses on the following: (1) his marijuana use shortly before the initial contact with police in his backyard that made him incapable of understanding his Miranda waivers, i.e., his mental state; (2) his age; and (3) the fact he was overly impressed and intimidated by the detectives, i.e., his mental state and prior experience with police.
Gibson was 17 at the time of his interview with police. This is well above the bright-line rule set in our caselaw that has held parental involvement is only required when the juvenile is 14 or younger. See Ramos, 271 Kan. at 526. The length of the first encounter at the station was about 2 hours and 45 minutes before Gibson gave his first video statement. This length of time was reasonable given the seriousness of the crime and the evidence that some of this time was used to review computerized mug shots and for cigarette breaks. Cf. Makthepharak, 276 Kan. at 564, 568 (5x/2-hour interview reasonable in fight of serious charges, number of suspects, and defendant’s efforts to minimize his involvement). The uncontroverted testimony was that the questioning was not confrontational and Gibson was polite and cooperative. The record also reflects Gibson had a ninth-grade education. See 276 Kan. at 563-64, 568 (statements found voluntary under totality of circumstances including that defendant had equivalent of seventh-grade education); Ramos, 271 Kan. at 527-28 (statements found voluntary under totality of circumstances including that defendant had equivalent of ninth-grade education).
As for Gibson’s marijuana use, within the first 6 minutes of his October 12 video statement, Gibson was asked whether he was “currently” under the influence of drugs or alcohol. He responded he was not. He was then asked whether he had used any drugs or alcohol at any time that day, and he said yes. Gibson then explained that he had used marijuana about 3 hours earlier. He was then asked if that meant 3 hours before his contact with the officers at his home, and he answered in the affirmative. Those responses then prompted Detective Michael to ask whether during the time they had been together Gibson had understood the officers’ questions, his answers could be recalled, and he had “control of [his] mind.” Gibson responded affirmatively.
In addition, prior to Gibson mentioning his marijuana use earlier in the day, during the introductory minutes of the video Gibson had promptly and clearly stated and spelled his name; stated his birthdate, address, and phone number; identified who he lived with; read out loud his advice of rights form; responded promptly and clearly to the detective’s recitation of his Miranda rights; confirmed he was willing to “set aside” those rights; and verified he had been treated fairly by officers, had not been threatened, and did not feel uncomfortable. Finally, Detective Michael testified that he was familiar with people who had been under the influence of drugs or alcohol and Gibson exhibited no signs of being under such an influence.
In this case, the record provides substantial competent evidence that Gibson’s statements were knowingly and voluntarily given. And our de novo review of the trial court’s legal conclusions leads us to hold that Gibson’s statements were voluntary. Based on the totality of circumstances, we conclude the trial court did not err in admitting Gibson’s statements.
No Error in Refusing Gibson’s Testimony
Gibson next argues the district court committed structural error when it refused to allow Gibson to testify or proffer his testimony at the hearing on the pro se suppression motion to reconsider the trial court’s earlier ruling that Gibson’s statements to police were voluntarily given. He asks this court to hold “a defendant’s right to testify on his own behalf is so basic to a fair trial that its violation constitutes structural error and requires automatic reversal.” Gibson analogizes his case to State v. Jones, 290 Kan. 373, 382, 228 P.3d 394 (2010), in which the court held structural error occurred when a district court denied the right to self-representation to a defendant at a preliminary hearing.
Standard of Review
To determine our standard of review we must first decide the nature of the issue before us. To be sure, it is not a question of structural error, which we have said is a rare classification. See Jones, 290 Kan. at 382 (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 [1991]); Boldridge v. State, 289 Kan. 618, 627, 215 P.3d 585 (2009) (“Structural error only occurs in very limited circumstances . . . .”); see also Fulminante, 499 U.S. at 309-10 (describing structural errors as “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards[,]” and errors that “affect[ ] the framework within which the trial proceeds.”).
Gibson s citation to Jones and his analogy to the right to self-representation are unavailing. The right to testify in one’s own defense is limited, for example, by rules of evidence and procedure governing the conduct of criminal proceedings. See State v. Stano, 284 Kan. 126, 137, 159 P.3d 931 (2007) (holding defendant’s ex-culpatoiy pretrial statements to police subject to exclusion at trial under hearsay rule); see also State v. Wells, 289 Kan. 1219, 1235, 221 P.3d 561 (2009) (“ ‘[T]he right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.’ ”). And a motion to suppress does not even trigger the right to a hearing on the merits unless it alleges grounds that, if proven, would render the confession inadmissible. K.S.A. 22-3215(3).
The State correctly argues that the issue is not whether structural error was committed, but whether the district court properly refused to reconsider its prior determination that tire statements were voluntary. It points out that “the decision to rehear an earlier motion is a matter which lies within die sound discretion of the trial court.” State v. Riedel, 242 Kan. 834, 837, 752 P.2d 115 (1988) (citing State v. Jackson, 213 Kan. 219, Syl. ¶ 1, 515 P.2d 1108 [1973]).
In State v. Miles, 233 Kan. 286, 662 P.2d 1227 (1983), tire court specifically addressed whether a trial court was required to rehear a motion to suppress a defendant’s statement after it already considered and denied suppression based on the same facts and issues. The court held that under such circumstances “there is no requirement that the hearing be repeated.” 233 Kan. at 295. Similarly, in State v. Holmes, 278 Kan. 603, 102 P.3d 406 (2004), the court considered whether the trial court was required to reentertain an earlier motion to suppress that had been denied. The court held: “The decision to rehear an earlier motion is a matter which lies within the sound discretion of the trial court.” 278 Kan. at 620.
Whether to reopen suppression hearings to take additional evidence is similarly regarded as a discretionary function of the trial court in other state and federal jurisdictions. See, e.g., United States v. Ozuna, 561 F.3d 728, 735 (7th Cir. 2009) (no abuse of discretion in reopening suppression hearing to consider evidence calling into question credibility of defendant’s testimony at hearing); In re Terrorist Bombings, U.S. Embassies, E. Africa, 552 F.3d 177, 196 (2d Cir. 2008) (reviewed for abuse of discretion trial court’s decision to allow prosecution to present additional evidence of voluntariness of statements previously suppressed by trial court); United States v. Gill, 513 F.3d 836, 846 (8th Cir. 2008) (no abuse of discretion in refusing to reopen evidence on motion to suppress; new evidence had little probative value, and court previously heard all relevant testimony and made credibility determinations and factfindings); People v. Patterson, 154 Ill. 2d 414, 447-50, 610 N.E.2d 16 (1992) (no error in refusing to reopen suppression hearing for additional officer testimony; trial court’s determination that further evidence would not be admitted after previously hearing testimony of less than all material witnesses that State could have called was within court’s discretionary power).
We hold the issue raised by Gibson is subject to review based on an abuse of discretion standard. An abuse of discretion occurs when judicial action was (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion was guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion was based. State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012).
Discussion
The motion to reconsider asserted that the court should reconsider because Gibson was only 17 when he gave the statements, was “overly impressed and felt intimidated by” the detectives, and had told Michael he was under the influence of marijuana. In prefacing her arguments to the court, Gibson’s attorney said her client “wants me to address the Court about [his pro se motion].” She then argued briefly the points made in the motions without elaboration and without adding any new issues. It was not until the court denied Gibson’s motion that the defense took a new tact and asked, “Would the Court put [Gibson] under oath just to be on the record so he can put that on the record?”
We see no abuse of discretion. First, Gibson cites no legal authority .to support the argument that he had a right to compel the district court to reopen the evidentiary record and allow him to testify in support of suppression once he had given up that opportunity at a prior hearing. See State v. Torres, 280 Kan. 309, 331, 121 P.3d 429 (2005) (simply pressing point without pertinent authority or without showing why it is sound despite lack of supporting authority or in the face of contraiy authority akin to failing to brief point; issue deemed waived or abandoned; defendant failed to demonstrate abuse of discretion in court’s denying mistrial motion and denying hearing on allegations of prosecutorial misconduct); see also State v. Garza, 290 Kan. 1021, 1034, 236 P.3d 501 (2010) (“Issues raised in passing that are not supported by argument or cited authority are deemed waived.”). In addition, we are aware of no such authority. We have held that a defendant may testify at a Jackson v. Denno hearing regarding voluntariness of statement or confession without waiving his or her Fifth Amendment privilege. State v. Bogguess, 293 Kan. 743, 750-51, 268 P.3d 481 (2012); see Jackson v. Denno, 378 U.S. 368, 376, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). But we have not held that a defendant has a right to testify regarding suppression whenever he or she sees fit after twice giving up that opportunity at a prior hearing.
Second, tire fact that Gibson contemporaneously objected to the admission of his statements under K.S.A. 60-404 when the State offered them into evidence at trial does not mean a new evidentiary hearing on their admissibility was warranted. See Miles, 233 Kan. at 295 (repeating suppression hearing unnecessary if defendant objects to admission of confession at trial when, after Jackson v. Denno hearing on same facts and issues, confession already had been determined voluntary). No new issue or newly discovered evidence was offered in counsel’s motion to reconsider or Gibson’s pro se motion to suppress, and counsel did not argue any existed. She did not claim Gibson repudiated what he had said during his recorded statement about his earlier marijuana use, and it already had been noted he was 17 and likely afraid and intimidated during portions of his interview. In fact, the transcript from the second hearing indicates the prospect of having Gibson testify as a proffer of that evidence was an afterthought following the district court’s denial of Gibson’s pro se motion, as opposed to a planned eviden-tiaiy presentation to support granting reconsideration.
But just as importantly, the uncontroverted evidence from the first hearing addressed each issue asserted in the motions for reconsideration—particularly Gibson’s consumption of marijuana. Defense counsel even conceded at the first hearing that Gibson gave the statements to police voluntarily.
This is not a case in which refusal to reopen the suppression hearing actually denied Gibson the opportunity to testify. Gibson declined the opportunity in the regular course of tire Jackson v. Denno hearing and tiren about 4 months later simply changed his mind. Compare People v. Peterson, 6 A.D.3d 363, 364, 777 N.Y.S.2d 48 (2004) (district court did not abuse discretion in refusing to allow defendant to testify at reopened suppression hearing; defendant could have testified but declined to do so at initial hearing), with Franklin v. State, 74 Wis. 2d 717, 720-24, 247 N.W.2d 721 (1976) (abuse of discretion to refuse to reopen suppression hearing, convened expressly to hear defendant’s testimony, when defendant was 30 minutes late due to car trouble; attorney had proffered defendant’s testimony in defendant’s absence, which was both material and indicated defendant’s desire to testify; and refusal effectively denied defendant any opportunity to testify).
Under tire circumstances, a reasonable person could agree with the district court’s decision to deny Gibson a second opportunity to testify and his request to proffer such testimony. We hold the district court did not abuse its discretion.
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The opinion of the court was delivered by
Johnson, J.:
Michael Ramirez was charged with kidnapping, aggravated burglary, and endangering a child after breaking into a home and placing a 1-year-old child in a duffel bag, allegedly to kidnap the child. The jury convicted Ramirez on the aggravated burglary and endangering a child counts but opted to convict him of criminal restraint in lieu of the kidnapping count. In a split decision, the Court of Appeals affirmed Ramirez’ conviction for the uncharged crime of criminal restraint based upon that crime being a lesser included offense of tire charged crime of kidnapping. State v. Ramirez, No. 102,421, 2011 WL 2793219 (Kan. App. 2011) (unpublished opinion). We granted review on the question of whether the district court had jurisdiction to convict Ramirez of criminal restraint as a lesser included offense. We agree with the concurring opinion of the Court of Appeals and hold that criminal restraint is a lesser degree of kidnapping and, therefore, constitutes a lesser included crime under K.S.A. 21-3107(2)(a). Accordingly, we affirm Ramirez’ conviction for criminal restraint.
Factual and Procedural Overview
A detailed recitation of the circumstances giving rise to the lad-napping charge is unnecessary to resolve the purely legal question presented in this appeal. It is enough to know that early on the morning of February 20, 2007, the 1-year-old victim’s mother discovered Ramirez in her child’s bedroom and that Ramirez had placed her youngest child in a duffel bag, albeit the bag was not moved from the child’s bedroom. The mother and her roommate, with whom Ramirez was acquainted, prevented Ramirez from leaving the dwelling until the police arrived to arrest him.
At the close of Ramirez’ jury trial, the district court instructed the jury on the elements of kidnapping, which in relevant part were: “One, that the defendant took or confined [the child] by force, threat, or deception. That it was done with the intent to hold such person, to inflict bodily injury, or to terrorize the victim or another.” But, without any objection, the jury was also given a lesser included offense instruction on criminal restraint, the relevant elements of which were “that the defendant knowingly and without authority restrained [the child] so as to interfere substantially with his liberty.” The jury convicted Ramirez of the lesser crime of criminal restraint.
On appeal, Ramirez challenged the trial court’s jurisdiction to convict him of the uncharged crime of criminal restraint. Specifically, Ramirez contended that under tire strict elements test adopted in State v. Schoonover, 281 Kan. 453, 505, 133 P.3d 48 (2006), criminal restraint is not a lesser included crime of kidnapping. Under the strict elements test, the abstract elements of a putative lesser crime are strictly compared to the abstract elements of the charged offense. To attain lesser included offense status under the strict elements test, all of the elements of the lesser crime must be identical to some of the elements of the charged crime. State v. Alderete, 285 Kan. 359, 362, 172 P.3d 27 (2007). Ramirez claimed that because criminal restraint contained an element not included within kidnapping, it was not a lesser included offense under Schoonover.
A majority of the three-judge Court of Appeals panel found criminal restraint to be a lesser included crime of kidnapping, albeit for different reasons. The principal opinion noted that the statutes defining kidnapping and criminal restraint use different language to describe the prohibited conduct. But the judge opined that the meaning of the language is identical for purposes of doing a Schoonover comparison. Ramirez, 2011 WL 2793219, at *9. Specifically, the judge found that the phrase “ ‘so as to interfere substantially with such person’s liberty’ ” in the criminal restraint statute is equivalent to the kidnapping statute’s prohibition of “ ‘taking or confining a person, accomplished by force, threat or deception,’ ” making all of criminal restraint’s elements identical to some of kidnapping’s elements. 2011 WL 2793219, at *9. That opinion also noted that even after Schoonover, our Supreme Court had recognized criminal restraint as a lesser included crime of kidnapping in State v. Simmons, 282 Kan. 728, 742, 148 P.3d 525 (2006). Ramirez, 2011 WL 2793219, at *10.
The concurring opinion found it unnecessary to compare elements because criminal restraint is a lesser degree of the crime of kidnapping. Pursuant to K.S.A. 21-3107(2)(a), a lesser degree of a crime is defined as a lesser included crime. 2011 WL 2793219, at *13-14 (Atcheson, J., concurring).
Dissenting in part, Chief Judge Greene employed the same strict elements test used by the majority opinion but reached a different result. The dissent read the criminal restraint statute as requiring two elements not included in the statutory definition of kidnapping, namely, that the confinement be “ ‘without legal authority’ ’’ and “ ‘so as to interfere substantially with such person’s liberty.’ ” 2011 WL 2793219, at *11 (Greene, C.J., concurring in part and dissenting in part). Moreover, the dissent noted that criminal, re straint can be accomplished without force, fear, or threat, at least one of which is required by the statutory definition of kidnapping. Accordingly, the dissent would have held that all of the elements of criminal restraint are not identical to some of the elements of kidnapping; therefore, criminal restraint is not a lesser included crime of kidnapping; and, consequently, Ramirez5 conviction for the uncharged offense of criminal restraint should be reversed. 2011WL 2793219, at *11-13 (Greene, C.J., concurring in part and dissenting in part).
We granted Ramirez5 petition for review to address the lesser included crime issue.
Criminal Restraint Is a Lesser Included Crime : ' of Kidnapping
Standard of Review
Whether a trial court has jurisdiction is a question of law subject to unlimited review. State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999). Likewise, whether a crime is a lesser included offense of another crime is a question of law subject to unlimited review. State v. Parks, 294 Kan. 785, 802, 280 P.3d 766 (2012).
Analysis
Ramirez was charged with kidnapping but convicted of criminal restraint. Generally, a district court lacks jurisdiction to convict a defendant of a crime that was not charged in the complaint. The complaint, or other charging document, is the jurisdictional instrument that delineates the district court’s authority to convict a defendant of the crimes set forth in the charging document. Carmichael v. State, 255 Kan. 10, 12, 872 P.2d 240 (1994). “ ‘An information is the only vehicle by which a court obtains its jurisdiction, and is a limit upon that jurisdiction. Therefore, where the •information charges no crime, the court lacks jurisdiction to try the accused.' " 255 Kan. at 13 (quoting 22 C.J.S., Criminal Law § 157, p. 188).
Procedural due process also requires that a criminal defendant have notice of the specific charges asserted against him or her so that the defendant has an opportunity to defend against the stated charges. See Wisner v. State, 216 Kan. 523, 524, 532 P.2d 1051 (1975). Therefore, convicting a defendant of a charge not contained in the complaint and not properly before the district court is a clear violation of due process under the Fourteenth Amendment to the United States Constitution. State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983).
K.S.A. 21-3107 provides an exception to the rule that a defendant can only be convicted of the specific crime charged in the-complaint. It states that a defendant may be “convicted of either the crime charged or a lesser included crime, but not both.” (Emphasis added.) K.S.A. 21-3107(2). The statute codifies the common-law rule that when an indictment charges an offense that includes within it a lesser offense or an offense of a lower degree of the same general class, the accused may be convicted of the lesser offense. 4 Anderson, Wharton’s Criminal Law and Procedure § 1799 (1957); see State v. Terreso, 56 Kan. 126, 128, 42 P. 354 (1895). The presumed rationale for this exception is that the charging of the greater offense satisfies the notice requirements for the lesser offense and the defendant is therefore afforded due process. See State v. Daniels, 223 Kan. 266, 271-72, 573 P.2d 607 (1977).
Here, because Ramirez was not charged with criminal restraint, the only means by which the district court could have obtained jurisdiction to convict him of that crime is as a lesser included offense of the charged crime of kidnapping. K.S.A. 21-3424 defines criminal restraint as “knowingly and without legal authority restraining another person so as to interfere substantially with such person’s liberty.” Kidnapping is
“the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(a) for ransom, or as a shield or hostage;
(b) to facilitate flight or the commission of any crime;
(c) to inflict bodily injury or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political function.”
K.S.A. 21-3420.
This court has historically treated criminal restraint as a lesser included crime of kidnapping. See State v. Wiggett, 273 Kan. 438, 449-50, 44 P.3d 381 (2002) (acknowledging criminal restraint is lesser included crime of kidnapping but finding no error in failing to instruct jury when there was no factual question that defendant acted with specific intent to take baby in order to facilitate commission of crime); State v. Carter, 232 Kan. 124, 126, 652 P.2d 694 (1982) (refusal to instruct on criminal restraint as lesser included crime of kidnapping was error where evidence raised factual issue as to whether defendant had capacity to form specific intent required for kidnapping conviction); State v. Dunn, 223 Kan. 545, 547-48, 575 P.2d 530 (1978) (no specific intent required for criminal restraint; however, lesser included offense instruction not required because no legitimate factual issue as to whether defendant had capacity to form specific intent required for kidnapping conviction); State v. Buggs, 219 Kan. 203, 217, 547 P.2d 720 (1976) (instruction on lesser included crime of criminal restraint not required when defendant possessed the requisite specific intent to commit kidnapping).
But none of these cases discussed the basis for determining that criminal restraint was a lesser included crime of kidnapping. When not dealing with an attempt, there are two ways to establish a crime as a lesser included offense: “A lesser degree of the same crime”; or “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” K.S.A. 21-3107(2)(a) and (b). The Court of Appeals majority and dissent focused on the elements test in subsection (b) without discussing whether criminal restraint and kidnapping were different degrees of the same crime within tire meaning of subsection (a).
The concurring judge avoided his colleagues’ dispute over whether all of the elements of criminal restraint are conceptually identical to some of the elements of kidnapping and ignored the more fundamental question of whether this court would embrace conceptual, rather than literal, identity. Cf. State v. Cooper, 285 Kan. 964, 967, 179 P.3d 439 (2008) (using drug paraphernalia to manufacture methamphetamine not identical to manufacturing methamphetamine notwithstanding that, conceptually, paraphernalia must be used to manufacture methamphetamine). Instead, the concurrence observed that criminal restraint and kidnapping involved “[sjubstantially the same overt conduct—restraint of the victim’s movement or confinement”—and concluded that the “commonality of such a fundamental aspect of the statutoiy offenses,” together with tire “close common law ancestry” of the two crimes, proved its thesis that “they are degrees of the same crime.” Ramirez, 2011 WL 2793219, at *14 (Atcheson, J., concurring). Accordingly, the concurring opinion resolved the matter by applying subsection (a) of K.S.A. 21-3107(2). We will take that tack, as well.
K.S.A. 21-3107(2)(a) does not explain what constitutes a “lesser degree of the same crime.” But we do know that our caselaw has not required that the lesser crime be specifically designated as a “degree” of the charged crime, such as second-degree murder being a lesser included crime of first-degree murder. See, e.g., State v. Jefferson, 297 Kan. 1151, 1170, 310 P.3d 331 (2013) (criminal discharge of firearm is lesser degree crime of criminal discharge of firearm at occupied dwelling); State v. Bridges, 297 Kan. 989, 1020-21, 306 P.3d 244 (2013) (involuntary manslaughter is lesser degree crime of reckless second-degree murder); State v. Cheever, 295 Kan. 229, 258, 284 P.3d 1007 (2012) (recognizing “following homicide degree crimes, in descending order: first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter”); State v. Long, 234 Kan. 580, 591-92, 675 P.2d 832 (1984), disapproved on other grounds State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985) (theft under K.S.A. 21-3701(a)(l) is lesser included offense of robbeiy). Regardless of how a-crime is labeled, “[t]he degree of a criminal offense denotes the division or classification of one specific offense into grades, one particular grade being more or less culpable than another grade.” 21 Am. Jur. 2d, Criminal Law § 19, p. 132; see also Black’s Law Dictionary 489 (9th ed. 2009) (definition “degree of crime”). The more difficult inquiry is the “same crime” designation.
As noted, the Court of Appeals concurrence included the commonality of the overt conduct proscribed by the two crimes as part of the “same crime” analysis. We have precedent to support utilizing tire gravamen of the prohibited conduct as part of the calculus. In that vein, State v. Gregory, 218 Kan. 180, 183, 542 P.2d 1051 (1975), held that involuntary manslaughter was a “ lesser degree of the same crime’ ” of murder pursuant to the lesser included offense statute, even though they might appear to be different crimes and even though manslaughter might contain elements not required for a murder conviction. Looking at the “broader sense,” Gregory held that “ ‘they involve but one crime and are only degrees of felonious homicide.’ ” 218 Kan. at 183 (quoting Warren on Homicide § 83, pp. 415-16).
Similarly, Long found that theft was not a lesser included crime of robbery under the “same elements” test of K.S.A. 21-3107(2)(d) (Ensley 1981) because the specific intent element required to prove theft was not required to establish the elements of robbery. 234 Kan. at 590. Nevertheless, Long held that under K.S.A. 21-3107(2)(a) (Ensley 1981), theft was a “lesser degree” of the same crime that embraced robbery:
“The unlawful taking of the property of another is the gravamen of both offenses. Robbeiy is the greater of the two offenses as it is characterized as a ‘crime against persons’ in our criminal code and carries a higher penalty. Robbery requires the additional elements that the taking be accomplished by force or threat of bodily harm from the person or presence of another. A criminal intent is inferred when these elements are present.” 234 Kan. at 592.
With that support in mind, we agree with the notion that the gravamen of both crimes—criminal restraint and kidnapping—is the restraint or confinement of the victim. Kidnapping is simply graded higher, i.e., involves more culpability, because it requires the perpetrator to effect the restraint or confinement by force, threat, or deception with the specific intent to accomplish a particular illegal purpose.
Moreover, as the Court of Appeals concurrence explained, the two crimes were spawned from the same common-law crime, i.e., false imprisonment. “False imprisonment, sometimes called criminal restraint or unlawful imprisonment, is committed when a defendant so restrains another person as to interfere substantially with his liberty.” 2 Wharton’s Criminal Law § 206, p. 489 (15th ed. 1994). The statutoiy definition of criminal restraint in K.S.A. 21-3424 “substantially replicates the common-law offense of false imprisonment.” Ramirez, 2011 WL 2793219, at *15 (citing 2 Wharton’s Criminal Law § 206, p. 489 and 32 Am. Jur. 2d, False Imprisonment § 155, p. 180 [2007]). Further connecting the dots, the common-law crime of kidnapping was considered an “aggravated form of false imprisonment.” 2 Wharton’s Criminal Law § 207, p. 492; see also Midgett v. State, 216 Md. 26, 38, 139 A.2d 209 (1958); State v. Knighton, 518 S.W.2d 674, 677 n.2 (Mo. App. 1975). Kidnapping, “by statute, may still be regarded as an aggravated form of false imprisonment.” 2 Wharton’s Criminal Law $ 207, p. 493.
Finally, we see nothing in the statutoiy history of the two crimes that would convince us that they are not degrees of the same crime. Previously, kidnapping was separated into three degrees, each of which required a taking or confinement. See G.S. 1949, 21-449; G.S. 1949, 21-450; G.S. 1949, 21-451. Kidnapping in the first degree required the additional elements of either intent to obtain a ransom or bodily harm to the kidnapped person. G.S. 1949, 21-449. Kidnapping in the second degree required an intent to remove or actual removal of the kidnapped person from the state or secret confinement within the state against the person’s will. G.S. 1949, 21-450. Kidnapping in the third degree required a victim under the age of 12 and the intent to conceal the victim from his or her parent or guardian. G.S. 1949, 21-451. The object of these laws was to “secure the personal liberty of citizens and to secure to them the assistance of the law necessary to release them from unlawful restraint.” State v. Brown, 181 Kan. 375, 387, 312 P.2d 832 (1957). Notably, the lesser degrees of kidnapping also provided for correspondingly less severe sentences. See State v. Fike, 243 Kan. 365, 367, 757 P.2d 724 (1998) (Generally, a lesser offense refers to a crime which carries a lesser penalty than the penalty for the crime charged.).
In 1969, our legislature adopted a new Kansas Criminal Code that did not define kidnapping in degrees. Rather, the Code contained separate criminal provisions for the various related crimes, such as kidnapping, aggravated kidnapping, interference with parental custody, interference with custody of a committed person, and unlawful restraint. See L. 1969, ch. 180, secs. 21-3420, 21-3421, 21-3422, 21-3423, and 21-3424. But that recodification does not suggest that the legislature intended to destroy the commonality between kidnapping and criminal restraint that malees them degrees of the same crime.
To conclude, we hold that criminal restraint constitutes a lesser degree of the crime of kidnapping; as a lesser degree of the same crime, K.S.A. 21~3107(2)(a) defines criminal restraint as a lesser included crime of kidnapping; and, therefore, the district court had jurisdiction to convict Ramirez of the uncharged crime of criminal restraint as a lesser included crime of the charged crime of kidnapping. Accordingly, we affirm the result of the Court of Appeals opinion, which, in turn, affirmed Ramirez’ conviction for criminal restraint.
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The opinion of the court was delivered by
Moritz, J.:
A juiy convicted Eldier Molina of two counts of first-degree premeditated murder and one count of criminal possession of a firearm. The district court sentenced Molina to life in prison with no possibility of parole for 50 years (hard 50) on the first murder conviction, a consecutive life sentence with no possibility of parole for 25 years (hard 25) on the second murder conviction, and a concurrent 8-month prison sentence for the firearm conviction.
In this direct appeal, Molina seeks reversal of his convictions, arguing the district court clearly erred in failing to give an unrequested limiting instruction for other crimes evidence and an unrequested instruction on voluntary manslaughter as a lesser included offense of first-degree murder. We reject both claims and affirm Molina’s convictions.
Molina also asserts several sentencing claims, including that his hard 50 sentence is unconstitutional in light of Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013); tire district court violated his right to be free from double jeopardy by relying on the same aggravating factor to impose a hard 50 sentence and consecutive life sentences; and the district court erred in imposing lifetime postrelease supervision for his off-grid convictions.
Consistent with our recent decision in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), we conclude the district court’s imposition of a hard 50 sentence violated Molina’s right to a jury trial under the Sixth Amendment to the United States Constitution. Consequently, we vacate his hard 50 sentence, including the unauthorized period of lifetime postrelease supervision, and remand for resentencing. To provide guidance on remand, we address and reject Molina’s double jeopardy claim. Finally, while we affirm Molina’s remaining sentences, we vacate the unauthorized lifetime postrelease supervision portion of Molina’s hard 25 sentence.
Factual and Procedural History
On November 13, 2009, as Kansas City, Kansas, police officers Jason Pittman and Darrell Forrest conducted surveillance at a potential drug house, Pittman saw a car arrive at the house, remain a few minutes, and leave. Pittman and Forrest followed the car and pulled behind it at a stoplight at the intersection of 18th and Central. As Pittman waited at tire traffic light, he looked to the west and saw a silver Honda pull up alongside a black sedan. Pittman thought this was odd because the Honda appeared to be in the wrong lane. Then Pittman and Forrest both heard several gunshots, and Pittman saw a muzzle flash coming from the Honda’s front passenger seat.
Pittman activated the patrol car’s sirens and emergency lights and drove around the car he had been following. Pittman and Forrest watched as the Honda passed through the intersection traveling eastbound on Central Avenue. As it did so, both officers saw the driver look toward the patrol car, and Pittman got a good look at tire driver’s face. Pittman testified he knew the driver saw him because he could read the driver’s lips as the driver said, “ ‘Oh, shit.’ ” The Honda drove through a store parking lot and then south on 18th Street as Pittman, Forrest, and eventually other officers pursued it.
Ultimately, the Honda drove through an open field near the Kansas National Guard Armory and came to a rest at a dead end street. Several officers saw two individuals get out of the Honda and run into a nearby wooded area. Officers immediately arrested a third individual who got out of the backseat, 12-year-old Max Palomino.
As officers searched the wooded area for the two other suspects, they called in a K-9 unit to assist in the search. The tracking dog picked up a scent and led officers through the wooded area to a house where they found Molina hiding underneath a deck. The second individual was not found.
Other officers investigated the crime scene at 18th and Central and found two nonresponsive male victims in the front seat of the black sedan. Emergency technicians transported the victims, brothers Gerson Diaz-Turcios and Jos Diaz-Turcios, to separate medical facilities, where both men died from gunshot wounds to the head.
After his arrest, Palomino identified the two men who ran from the Honda as Molina and Juan Lopez. Officer Pittman reviewed photographs of known gang members and identified Lopez as tire driver of the Honda.
The State jointly charged Molina and Lopez with two counts of first-degree premeditated murder. The State also charged Molina with one count of criminal possession of a firearm and Lopez with one count of fleeing or eluding a police officer. At the close of their joint trial, the jury found both Molina and Lopez guilty as charged. See State v. Lopez, 299 Kan. 324, 323 P.3d 1260 (2014) (considering direct appeal of Molina’s codefendant, Juan Lopez).
The State sought a hard 50 sentence against Molina based on his knowing or purposeful killing of more than one person during the shooting. See K.S.A. 21-4636(b) (listing an aggravating circumstance supporting imposition of hard 50 sentence as “the defendant knowingly or purposely killed . .. more than one person"). Following an evidentiary hearing, the district court concluded the jury’s findings of guilt on two first-degree premeditated murder charges clearly proved the aggravating circumstance and concluded the mitigating circumstances urged by Molina, including his relatively young age and that the shooting arose out of gang mentality, did not outweigh the aggravating circumstance. See K.S.A. 21-4635(d) (stating findings necessary to impose hard 50 sentence). Based on these findings, the district court sentenced Molina to life in prison with no possibility of parole for 50 years on the first murder conviction, a consecutive sentence of life with no possibility of parole for 25 years on the second murder conviction, and a concurrent 8-month prison sentence for the firearm conviction.
Our jurisdiction over Molina’s direct appeal arises under K.S.A. 22-3601(b)(l) (maximum life sentence).
Discussion
The district court did not clearly err in failing to give an unrequested limiting instruction for other crimes evidence.
Molina seeks reversal of his convictions and remand for a new trial, arguing the district court erroneously failed to give the jury an unrequested limiting instruction for other crimes evidence. Further, Molina reasons a properly instructed jury would have returned a different verdict.
Standard of Review/Analytical Framework
We review the failure to give an unrequested jury instruction for clear error. K.S.A. 22-3414(3); State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012). Applying a clear error analysis, we first consider whether the district court erred in omitting the instruction. This presents a legal question subject to unlimited review. Next, if we find error, we consider reversibility. Reversal is required only if we are firmly convinced the jury would have returned a different verdict had the instruction been given. The reversibility inquiry requires a review of the entire record and is subject to unlimited review. The defendant bears the burden to establish clear error. 295 Kan. at 515-16.
Analysis
To determine if the district court erred in failing to give the instruction, we first consider whether a limiting instruction for other crimes evidence would have been legally and factually appropriate. See 295 Kan. at 515-16. The admission of other crimes evidence is governed by K.S.A. 2009 Supp. 60-455, which provides in relevant part:
“(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person’s disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
“[Tjhis court has held that a trial court is to instruct the jury on the specific purpose for admission whenever 60-455 evidence comes in.’ ” State v. Breeden, 297 Kan. 567, 581, 304 P.3d 660 (2013) (quoting State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 [2008]). Thus, a limiting instruction is both legally and factually appropriate if any 60-455 evidence is presented at trial.
Here, Molina argues the admission of three distinct pieces of other crimes evidence required the district court to give a limiting instruction: (1) evidence Molina’s status as a gang member required him “to engage in certain crimes,” namely fighting with or shooting rival gang members, (2) evidence that the Honda driven by Lopez was stolen, and (3) evidence that at the time of his arrest, Molina possessed and intended to sell marijuana.
Regarding the gang-related evidence, the State counters the district court was not required to give a limiting instruction because K.S.A. 2009 Supp. 60-455 does not govern the admission of such evidence. Regarding the stolen car and drug crimes evidence, the State assumes K.S.A. 2009 Supp. 60-455 applies but argues Molina waived any protection he might have had under K.S.A. 2009 Supp. 60-455 because both Molina and Lopez either introduced or emphasized that evidence to support their theories of defense at the joint trial. Alternatively, the State argues that even if we find error in the failure to give a limiting instruction, reversal is not required in light of the overwhelming evidence of Molina’s guilt.
1. Gang-related evidence
We have consistently held evidence of gang affiliation or membership is not K.S.A. 2009 Supp. 60-455 evidence. See State v. Jones, 295 Kan. 804, 809-10, 286 P.3d 562 (2012) (citing several cases). Rather, gang evidence is generally admissible if relevant, unless under K.S.A. 60-445 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.’ ” 295 Kan. at 809. Further, we have clarified that a trial court is not required to give a limiting instruction regarding gang evidence absent either a request for such an instruction or an objection for the failure to give it. See State v. Conway, 284 Kan 37, 50, 159 P.3d 917 (2007).
Relying on this precedent, the State argues K.S.A. 2009 Supp. 60-455 does not apply to the gang-related evidence admitted at Molina’s trial so the district court did not err in failing to give an unrequested limiting instruction. Molina acknowledges this precedent but urges us to draw a distinction between evidence of gang membership or affiliation and evidence of a gang’s criminal activities. He argues K.S.A. 2009 Supp. 60-455, rather than K.S.A. GO-445, governs the admission of evidence “relating to a gang’s illegal activities” and, because the State presented such evidence at trial, the trial court should have given a limiting instruction. Specifically, Molina points to evidence that he was a member of the Sureños Por Vida (SPV) gang and Palomino’s testimony explaining that SPV gang members were expected to fight with or shoot members of a rival gang, the Florencia (F13s).
Molina argues State v. Goodson, 281 Kan. 913, 135 P.3d 1116 (2006), supports the distinction he makes between evidence of gang membership or affiliation and evidence of a gang’s criminal activities. See 281 Kan. 914, Syl. ¶ 11 (“Although evidence of membership in a gang is not a civil wrong and not subject to the rule of exclusion under K.S.A. 60-455, evidence that the gang committed illegal acts may violate the prohibition on the introduction of prior crimes evidence codified at K.S.A. 60-455.”).
In Goodson, this court found no error in the admission of gang affiliation evidence but concluded, in part, the district court erred in admitting evidence Goodson’s gang “ ‘[sjometimes’ ” committed illegal acts. 281 Kan. at 921, 925. The Goodson court reasoned that although evidence of gang membership is not a crime or civil wrong subject to the exclusionary rule of K.S.A. 60-455, other gang-related evidence may violate that statute:
“In this case, however, the State went beyond asking about membership in gangs and asked [the witness] whether the L.L.C. committed illegal acts. This question was not relevant to prove any material fact except propensity or bad character; no attempt was made to tie the evidence to any basis for admission permitted by K.S.A. 60-455. The admission of the evidence was a flagrant violation of the prohibition on the introduction of prior crimes evidence codified at K.S.A. 60-455.” 281 Kan. at 925.
Although neither party challenges Goodson s viability, we now question Goodson s conclusion the State flagrantly violated K.S.A. 60-455’s prohibition on the introduction of other crimes evidence in light of the plain language of the statute and the facts before the Goodson court. K.S.A. 2009 Supp. 60-455 specifically limits application of subsection (a) “to situations involving ‘evidence that a person committed a crime or civil wrong on a specified occasion to infer a person has the disposition or propensity to ‘commitQ another crime or civil wrong on another specified occasion.’ ” (Emphasis added.) Breeden, 297 Kan. at 577. Thus, it would seem that evidence that Goodson’s gang “sometimes” committed illegal acts is outside K.S.A. 2009 Supp. 60-4557 prohibitions. Similarly, in this case, evidence of Molina’s membership in the SPV and the expectation that SPV gang members fight with or shoot F13 gang members is outside K.S.A. 2009 Supp. 60-455 because it is not evidence that a particular person committed a particular bad act on a particular occasion.
Thus, even if Goodson s broader proposition is correct—i.e., that some gang-related evidence falls under K.S.A. 2009 Supp. 60-455’s umbrella—the evidence presented in this case does not. Consequently, we conclude the district court did not err in failing to provide an unrequested limiting instruction for the gang-related evidence.
2. Possession of a stolen car
At trial, Palomino briefly mentioned that the Honda involved in the shooting was stolen. Lopez’ counsel later attempted to elicit additional testimony from Detective Mike Lucas to explain how Lopez and Molina came to possess the Plonda. During a bench conference on the appropriateness of such questioning, Molina’s counsel offered his suggestions as to the questions Lopez’ counsel could ask about the stolen car.
The trial court recessed, dismissed the jury, and continued conferring with counsel. The court noted evidence had been admitted indicating the car was stolen but neither party had sought a limiting instruction or objected to that evidence on K.S.A. 2009 Supp. 60-455 grounds. Further, the trial court characterized Palomino’s reference to the stolen car as “slight” and sua sponte concluded no cautionary instruction was required. Ultimately, the court permitted Lopez’ counsel to question Detective Lucas about his investí- gation of the stolen car, and Lucas testified he was aware the Honda was reported stolen 2 days before the shooting.
On direct examination, Molina denied involvement in the shooting and denied stealing the Honda or ever being in the Honda. During closing arguments, counsel for both defendants referred to the stolen Honda and emphasized that neither of the defendant’s fingerprints were found inside the Honda.
Notably, Molina’s counsel never requested a limiting instruction as to evidence the Honda was stolen. On appeal, however, he contends the trial court erred in failing to limit the jury’s consideration of that evidence.
We need not determine whether this evidence falls within K.S.A. 2009 Supp. 60-455’s penumbra because the State does fail to argue the stolen car evidence is not subject to that statute. Instead, the State contends Molina waived any right to a limiting instruction by introducing, emphasizing, or relying upon the stolen car evidence to support his defense. But a defendant’s reliance on K.S.A. 2009 Supp. 60-455 evidence and failure to request an instruction is more relevant to the question of reversibility than error. See, e.g., State v. Gunby, 282 Kan. 39, 57-58, 144 P.3d 647 (2006) (suggesting prior cases discussing waiver in context of omitted limiting instructions support conclusion that errors in omitting limiting instruction for K.S.A. 60-455 evidence are subject to review for harmless error rather than automatic reversal).
Assuming an instruction should have been given, we are firmly convinced the juiy would not have returned a different verdict absent its omission. Two officers witnessed the shooting, and several officers pursued the Honda from the scene of the shooting to the wooded area where Molina and Lopez fled and Palomino was arrested. Aided by a K-9 unit, officers tracked Molina’s trail from the Honda, through the wooded area, and to a house where officers found Molina hiding under a deck. At trial, Palomino identified Lopez as the driver of the Honda and Molina as the shooter. On this record, Molina has not met his burden to establish clear error.
3. Possession of marijuana with intent to sell
During opening statements Molina’s counsel advised the jury Molina’s girlfriend would testify
“that [Molina] left to sell some marijuana, that that’s what he did to raise a little money every now and then. He would sell marijuana. Keep that fact in mind with tills. When he was finally located, and he was, by the dog, inside of his pockets he had five individually wrapped bags of marijuana.”
Molina’s counsel further explained that the evidence would show Molina ran and hid from police because “[h]e had five bags of marijuana that he’s not supposed to have.”
As Molina’s counsel promised, the jury heard evidence of Molina’s possession of marijuana with intent to sell. Specifically, the jury heard testimony from an officer who found five bags of marijuana on Molina after his arrest. Further, the jury learned from Molina that when he heard the police sirens, he was preparing to sell a bag of marijuana at a gas station so he ran and hid underneath a deck to avoid police. Additionally, Molina’s girlfriend testified Molina left her house on the night of the shooting to sell marijuana at a gas station. Molina also attempted to elicit testimony that the dog that led officers to Molina’s hiding place merely picked up the scent of marijuana rather than tracking Molina from the stolen Honda. Finally, in closing argument, Molina’s counsel argued that the most credible trial evidence demonstrated Molina left his house on the night of tire shooting to sell marijuana and hid from police because he possessed marijuana.
As with the stolen car evidence, we need not decide whether K.S.A. 2009 Supp. 60-455 applies to the drug crime evidence because the State again presumes its application and argues Molina waived entitlement to a prophylactic limiting instruction by introducing the evidence as part of his defense. Although evidence of Molina’s drug possession and his intent to sell came in through the defense, the need for a limiting instruction on other crimes evidence does not depend upon which party introduces the evidence. Instead, as we held in Breeden, “a trial court judge who admits K.S.A. 2012 Supp. 60-455(b) evidence must give a limiting instruction informing the jury of the specific purpose for admission of the evidence in order to avoid error.” 297 Kan. at 579. This is true regardless of which party proposes tire evidence.
Again, assuming omission of a limiting instruction was error, it was certainly not clear error. As we have discussed, the jury heard substantial evidence of Molina’s guilt, including the eyewitness testimony of Palomino and Officer Pittman. Viewing the record as a whole, we are not firmly convinced the juiy would have returned a different verdict had the instruction been given. Therefore, the district court did not clearly err in failing to give a limiting instruction.
The district court did not err in failing to give an unrequested instruction on voluntary manslaughter as a lesser included offense of first-degree murder.
Next, Molina argues the district court clearly erred by failing to give an unrequested lesser included offense instruction on voluntary manslaughter. Molina contends the juiy could reasonably have convicted him of heat-of-passion voluntaiy manslaughter because the evidence demonstrated Molina and Lopez argued with the victims before the shooting.
Standard of Review/Analytical Framework
Because Molina neither requested nor objected to the omission of the voluntary manslaughter instruction, we apply Williams’ framework to determine whether the district court clearly erred in failing to give the instruction. See K.S.A. 22-3414(3); Williams, 295 Kan. at 515-16. As noted, we exercise unlimited review in determining whether the district court erred in omitting an instruction and, if so, whether reversal is required. See 295 Kan. at 515-16.
Analysis
Lesser included offense instructions must be given if “there is some evidence which would reasonably justify a conviction of some lesser included crime” as defined in K.S.A. 21-3107. See K.S.A. 22-3414(3); State v. Berry, 292 Kan. 493, 503, 513, 254 P.3d 1276 (2011). The failure to give a lesser included offense instruction is erroneous if the instruction would have been legally and factually appropriate. State v. Plummer, 295 Kan. 156, 161-62, 283 P.3d 202 (2012).
An instruction on voluntaiy manslaughter would have been legally appropriate because Molina was charged with first-degree premeditated murder and voluntaiy manslaughter is a lesser in- eluded offense of that crime. See State v. Foster, 290 Kan. 696, 711, 233 P.3d 265 (2010); State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008). But the State contends an instruction on voluntary manslaughter would not have been factually appropriate in this case.
At the time of Molina’s offense, voluntary manslaughter was defined in relevant part as “the intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat of passion.” K.S.A. 21-3403. The. key elements of voluntary manslaughter are (1) an intentional killing, and (2) legally sufficient provocation. Gallegos, 286 Kan. at 874.
Focusing on the second element, Molina contends evidence he and Lopez argued with the victims before the shooting established legally sufficient provocation. But the record does not support Molina’s position.
“ ‘Heat of passion’ means any intense or vehement emotional excitement of the land prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985); see Foster, 290 Kan. at 711-12. “Sudden quarrel is one form of provocation for ‘heat of passion’ and is not separate and apart from ‘heat of passion.’ ” State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 (1978); see also State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010) (“Kansas, along with most states, considers sudden quarrel to be one form of heat of passion.”).
“The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be ‘sudden quarrel’ or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. In applying tire objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant.” Guebara, 236 Kan. 791, Syl. ¶ 3.
“Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered.” 236 Kan. at 797.
Here, the evidence demonstrates that Lopez, Molina, and Palomino, who were affiliated with the SPY gang, stopped at a gas station on 18th and Grandview. Shortly thereafter, members of the rival F13 gang stopped at the same gas station. Palomino remained inside the car while Molina and Lopez talked to the F13s. Though unable to hear their conversation, Palomino could tell that “they were arguing because they were from different gangs.” Palomino also described what he saw in a gas station surveillance video that was admitted at trial but is not included in the record on appeal. As confirmed by Palomino, the video showed “a car,” “some guys” who Palomino identified as “the F13s,” and “two heads there walking back towards [the Honda],” who Palomino identified as Molina and Lopez. Palomino testified that throughout the conversation at the gas station, the F13 gang members did not display any weapons, engage in a fist fight, or attempt to shoot anyone.
According to Palomino, after he, Lopez, and Molina left the gas station, the F13s followed them for a few blocks before turning and driving a different direction. Palomino testified that Lopez, who was the Honda’s driver, made a U-turn, caught up to the F13s’ car, and pulled alongside it at the traffic light at 18th and Central. There, Molina fired three shots at the F13s’ car, killing both victims.
Essentially, Molina urges us to consider the innate peculiarities arising from his gang membership and the SPV’s rivalry with the F13s and to conclude that an exchange of unspecified words or gestures with rival gang members is sufficient to cause an ordinary person to lose control of his or her actions and reason. But Molina’s argument ignores both the objective standard by which we judge sufficiency and our well-established caselaw. See Guebara, 236 Kan. at 796-97.
Further, even if we agreed that the initial confrontation at the gas station satisfied an objective standard, the record also demonstrates Molina had a brief cooling-off period to reflect on that confrontation before the fatal shooting. See, e.g., State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 (2012) (“The hallmark of heat of passion is taking action upon impulse without reflection.”); State v. Henson, 287 Kan. 574, 583, 197 P.3d 456 (2008) (“[A]n act of violence separated from the provocation by sufficient cooling-off time is not the product of heat of passion.”); State v. Follin, 263 Kan. 28, 38, 947 P.2d 8 (1997) (“An act of violence separated from the provocation by sufficient cooling time is the product of malice and cold calculation rather than the heat of passion.”).
Here, the evidence demonstrates the F13s disengaged from the confrontation by following Lopez and Molina for a short distance then driving in a different direction. Lopez and Molina then purposefully made a U-turn and reinitiated contact by pulling alongside the F13s’ car, and Molina began shooting. Because a jury could not have reasonably convicted Molina of heat-of-passion voluntary manslaughter on the facts presented, the district court did not err in failing to give the unrequested instruction.
The district comt erred in imposing a hard SO sentence.
In his initial appeal brief, Molina argued the district court abused its discretion in determining the aggravating circumstance supporting his hard 50 sentence, i.e., that Molina killed more than one person, was not outweighed by mitigating circumstances. See K.S.A. 21-4635(c) (explaining findings necessary to support imposition of hard 50 sentence); K.S.A. 21-4636(b) (defining one aggravating circumstance as “[t]he defendant knowingly or purposely killed or created a great risk of death to more than one person”).
After the parties filed their initial briefs, the United States Supreme Court issued Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2155, 2158, 186 L. Ed. 2d 314 (2013). In Alleyne, the Court held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proven beyond a reasonable doubt. 133 S. Ct. at 2155. We subsequently granted Molina’s motion to file a supplemental brief challenging the constitutionality of his hard 50 sentence in light of Alleyne.
1. The statutory procedure used to impose Molina’s hard SO sentence is unconstitutional.
We recently held the statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an in creased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt. State v. Soto, 299 Kan. 102, 103-04, 124, 322 P.3d 334 (2014). Consequently, the district court’s imposition of a hard 50 sentence violated Molina’s Sixth Amendment right to a jury trial, and we vacate his sentence.
2. If a modified harmless error test applies, roe could not hold the hard 50/Alleyne error harmless in this case.
In Soto, we considered but declined to decide whether hard 50/ Alleyne errors are subject to review for harmless error under a modified harmless error test. 299 Kan. at 126. Under the test discussed in Soto, we suggested we could hold a hard 50/Alleyne error harmless only if we could conclude beyond a reasonable doubt (1) that the aggravating circumstance was supported by uncontrov-erted and overwhelming evidence such that the jury would have found the existence of the aggravating circumstance beyond a reasonable doubt, and (2) that no rational jury would have determined that mitigating circumstances outweighed aggravating circumstances. Soto, 299 Kan. at 127. We noted both prongs of this test would rarely be met and deferred a decision as to whether this modified harmless error standard would apply in the hard 50/Alleyne context until that rare case presents itself. 299 Kan. at 127-28.
This is not such a case. Here, even assuming we could conclude the jury’s guilty verdicts on both murder charges satisfied the first part of the modified harmless error test, we could not conclude with any degree of certainty that the second part of the test was satisfied. Molina presented mitigating evidence and argued the hard 50 sentence should not be imposed because he was only 20 years old at the time, his family loved him, he was a good father to his child, and the shooting was spurred by a “gang mentality.” While the district court found two mitigating circumstances—Molina’s age and that he was loved by his family—and concluded those circumstances did not outweigh the aggravating circumstance, we cannot say with the requisite confidence that no rational jury would have determined that mitigating circumstances outweighed the ag gravating circumstance. See Soto, 299 Kan. at 127. Consequently, even if we were to apply a modified harmless error analysis in this case, we could not hold the error harmless.
3. We decline to issue an advisory opinion as to the appropriate course of action on remand.
Because we must remand this case for resentencing, we next consider the parties’ invitation to address the appropriate remedy on remand. Molina argues he must be sentenced to a hard 25 sentence because that is the only sentence supported by the jury’s factual findings. The State, on the other hand, points out that after Alleyne, the Kansas Legislature amended Kansas’ hard 50 sentencing scheme and expressly provided for retroactive application in cases pending on appeal. See L. 2013, ch. 1, sec. 1 (Special Session); K.S.A. 2013 Supp. 21-6620. Thus, the State contends it may seek a hard 50 sentence on remand under those retroactive provisions.
For the same reasons discussed in Soto, we decline to issue an advisory opinion as to the appropriate course of action on remand. See Soto, 299 Kan. at 128. Instead, we hold only that because Molina’s sentence was imposed in violation of his Sixth Amendment right to a jury trial, his hard 50 sentence must be vacated and the case remanded for resentencing. Of course, the parties are free to present arguments to the district court on remand regarding application of the amended statute.
The district court did not violate Molina’s right to be free from double jeopardy by imposing consecutive life sentences.
Although we are vacating Molina’s hard 50 sentence and remanding for resentencing, we briefly address Molina’s claim the district court violated his right to be free from double jeopardy when it utilized the same aggravating factor to impose a hard 50 sentence and consecutive life sentences.
Molina’s claim contravenes well-established caselaw. See State v. Jamison, 269 Kan. 564, 577, 7 P.3d 1204 (2000) (“It does not violate double jeopardy to apply the same aggravating factor—that the defendant tolled more than one person—to both convictions in imposing the hard 40 sentence on each count or in running those terms consecutively.”); State v. Stafford, 255 Kan. 807, 818, 878 P.2d 820 (1994) (concluding sentencing court may use same aggravating factor to justify hard 40 sentence and consecutive life sentences). Because Molina presents no compelling authority or argument to support his assertion that these cases were wrongly decided, we decline to revisit these decisions.
The district court erred in imposing lifetime postrelease supervision for Molina’s off-grid convictions.
Finally, both parties agree the district court erred in imposing lifetime postrelease supervision as part of Molina’s life sentences for his off-grid, first-degree murder convictions. See State v. Cash, 293 Kan. 326, 330-31, 263 P.3d 786 (2011) (concluding district court lacks authority to impose lifetime postrelease supervision in conjunction with an off-grid indeterminate sentence); K.S.A. 2013 Supp. 22-3717(b)(l) (establishing parole eligibility rather tiran postrelease supervision for inmates convicted of first-degree premeditated murder). Because we have vacated Molina’s hard 50 sentence on other grounds, including the lifetime postrelease supervision period, we need only vacate the term of lifetime post-release supervision imposed as part of his remaining hard 25 sentence. See State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012).
Convictions affirmed, sentence vacated in part, and case remanded for resentencing. | [
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The opinion of the court was delivered by
Rosen, J.:
Terry Ray Hayes appeals from his convictions and sentences for premeditated first-degree murder and aggravated assault. He challenges the denial of his request for a voluntaiy manslaughter instruction and the district court’s imposition of a hard 50 life sentence.
Hayes was married to Tiffani Hayes for a little over a year. In April 2010, Tiffani moved back home with her mother. Shortly afterwards, Hayes filed for a divorce. He experienced depression and suicidal ideations following the breakup. At one time, in the course of speaking with Tiffani, he pulled out a gun, pointed it at her head, pulled the trigger, and then pointed it at his own head and pulled the trigger. The gun did not fire.
Hayes and Tiffani engaged in a lengthy series of text and e-mail exchanges. A common topic was the custody of her pets, which were in Hayes’ possession. Hayes pleaded with Tiffani to love him and to return to him. He also accused her of infidelity and expressed his hope that she would suffer for what she had done. Tiffani asked Hayes to stop initiating electronic contact with her at her place of work.
On August 4, 2010, Tiffani accompanied her mother and her aunt to dinner. Hayes sent Tiffani several text messages and offered to meet her and return her pets that he had in his possession and that she wanted back. The two agreed to meet at a convenience store in Olathe. Tiffani and the two other women drove to the store parking lot and waited for Hayes to show up.
When Hayes arrived, he removed the animals from his vehicle and placed them in the backseat of Tiffani’s truck. While he was doing this, the three women stood outside the truck. Hayes spoke loudly to Tiffani and cut and pulled wiring from her truck. The women then drove away.
While Hayes was delivering the pets, two of his children were being cared for by a sitter. One of Hayes’ sons and a friend of the son asked the sitter if they could speak with her privately. They told her that earlier that day Hayes had informed them he was going to shoot or kill Tiffani. Later that evening, Hayes assured the sitter s father that he did not really intend to toll Tiffani; he had been upset and it was just an empty threat.
The next morning, Tiffani called her mother and reported that Hayes had called her, telling her that she would have to go to his residence and pick up a box containing property belonging to her by 1 p.m. or he was going to throw it all away. Tiffani’s mother told Tiffani that it would probably be okay to pick up the items if a friend and coworlcer, Ted Ennis, accompanied her. Tiffani then called Ennis and asked him to take her to pick up the box.
Shortly before noon, Ennis drove Tiffani and another coworker to Hayes’ residence. On the way, Tiffani engaged in texting, and, at one point, she laughed and reported that Hayes had texted her telling them to “keep on driving” because she was not coming by herself. They nevertheless proceeded to Hayes’ residence. When they arrived, he was “stomping” around the driveway, gesturing for them to keep on going. No box containing her property was visible.
Tiffani rolled down her window and told Hayes to return her property. She then got out of the truck and approached him. Ennis was going to get out of the truck but decided not to because it appeared to him there was going to be a confrontation between Tiffani and Hayes. He then heard Tiffani scream, “Ted!” and he turned and saw her running toward the truck. He saw Hayes running behind her holding a handgun. Just as Tiffani reached the still-open door of the truck, Hayes put the gun behind her head and fired from a distance of less than a foot. Tiffani landed on the pavement face-up, and Ennis heard Hayes say, “How do you like that?” or “Take that.”
Hayes then turned his arm and pointed the gun toward Ennis. Thinking that he was in danger of being shot, Ennis accelerated the truck away from the scene and, after putting some distance between himself and Hayes, called 911.
The State filed a complaint charging Hayes with one count of premeditated first-degree murder and one count of aggravated assault. A jury found him guilty of both counts. The district court sentenced him to a hard 50 life sentence for the murder conviction and a consecutive term of 13 months for the aggravated assault conviction. Hayes filed a timely appeal.
Hayes initially challenges the decision by the district court to deny his request for an instruction to the jury on voluntary manslaughter. The district court decided that the facts did not support a voluntary manslaughter instruction. The court instead instructed under theories of premeditated first-degree murder and second-degree murder. The jury elected to find Hayes guilty of premeditated first-degree murder.
When analyzing a properly preserved jury instruction issue on appeal, this court follows a progressive step analysis:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Intentional second-degree murder is a lesser included offense of first-degree murder. State v. Foster, 290 Kan. 696, 711, 233 P.3d 265 (2010). Voluntary manslaughter is a lesser included offense of first-degree murder and second-degree murder. State v. Qualls, 297 Kan. 61, 69, 298 P.3d 311 (2013); Foster, 290 Kan. at 711.
The key elements of voluntary manslaughter under K.S.A. 21-3403 are an intentional lulling and legally sufficient provocation. State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008). When reviewing whether provocation was legally sufficient, an objective test is used. 286 Kan. at 875. “Heat of passion” has been defined as “any intense or vehement emotional excitement of the land prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror,” based “on impulse without reflection.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). The provocation “ 'must be sufficient to cause an ordinary man to lose control of his actions and his reason' ” Gallegos, 286 Kan. at 875 (quoting Guebara, 236 Kan. at 796); accord State v. Vasquez, 287 Kan. 40, 54-55, 194 P.3d 563 (2008).
In Foster, this court considered whether a voluntary manslaughter instruction was required in a first-degree murder jury trial. The court concluded:
“The evidence of premeditated first-degree murder and the jury’s resulting conviction show Foster planned [the victim’s] murder. [Witness] testimony indicates the calculated and lengthy manner in which Foster implemented his attack and eliminates the possibility Foster was provoked into killing [the victim] in the heat of passion. The evidence demonstrates a preplanned and prolonged attack on [the victim], which led to Foster’s first-degree murder conviction. We find no evidence to support giving the jury a voluntary manslaughter instruction.” 290 Kan. at 712.
This court does not speculate about hypothetical scenarios relating to instructing a jury on the elements of a heat-of-passion killing. State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 (2012). The court has required that in order for a lesser included offense to be factually appropriate, “there must be actual evidence in the record, together with reasonable inferences to be drawn from that actual evidence, that would reasonably support a conviction for the lesser crime.” 295 Kan. at 926. In the present case, there was no actual evidence introduced that Hayes was acting with a sudden emotional reaction to a situation.
In Wade, the defendant armed himself with a handgun before going to the residence of a former romantic partner, climbing through a window, and shooting her. This court held that a heat-of-passion instruction was not called for. First, the confrontation between the defendant and the victim was foreseeable, and a sudden quarrel requires “an ‘unforeseen angry altercation, dispute, taunt, or accusation' ” 295 Kan. at 925 (quoting State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 [2010]). Second, the defendant’s calculated conduct belied his claim of action taken “upon impulse without reflection,” and therefore did not support a heat-of-passion instruction. 295 Kan. at 925. Third, the defendant’s anger may have provided a motive for him to kill the victim, but it did not provide sufficient provocation for the shooting to be the result of heat of passion: “A slow burn is not heat of passion.” 295 Kan. at 926.
This court has held that in order to reduce a homicide from murder to voluntary manslaughter, there must be an adequate provocation that deprives a reasonable person of self-control and causes that person to act out of passion rather than reason. Mere words or gestures, however offensive, do not constitute legally sufficient provocation for a finding of voluntary manslaughter. Vasquez, 287 Kan. at 55; Guebara, 236 Kan. at 797.
Hayes did not present evidence that he acted in the heat of passion, and the evidence was compelling that die crime was premeditated and that a confrontation between Hayes and Tiffani was either intended or foreseeable. Any provocation in the form of the breakup between Tiffani and Hayes occurred long before the shooting and could not have served as the event bringing about an impulsive action carried out without reflection. Any provocation on the day of the shooting consisted at most of words or gestures, which are insufficient grounds for instructing on voluntary manslaughter.
We need not decide whether the so-called “slap rule” applies in the present case, as the State urges. We note that the skip rule is not amenable to mechanical application and that it should be viewed as simply providing a route to finding harmless error in those cases in which the elements of the crime of conviction, as compared to a rejected lesser included offense, necessaiily show that the jury would have rejected or eliminated a still lesser included offense. State v. Simmons, 295 Kan. 171, Syl. ¶ 5, 283 P.3d 212 (2012). We decline to decide whether those circumstances exist here.
Hayes next argues that the procedure used to impose his sentence violated his constitutional right to a trial by juiy.
Applying K.S.A. 21-4635 et seq., the district court found Hayes committed the murder in an especially heinous, atrocious, or cruel manner; found that no mitigating factors outweighed the aggravating circumstance; and imposed a sentence of life without the possibility of parole for 50 years (hard 50). Hayes challenged, both before the district court and before this court, the constitutionality of the judicial determination of aggravating factors.
In making its finding that the crime was especially heinous, atrocious, or cruel, the district judge declared:
“It is my finding in this case that the crime resulting in the death of Ms. Hayes was especially heinous, atrocious, and cruel. . . . The episode where you put the gun to her head and it didn’t go off, and you put the gun to your head, and it doesn’t go off, clearly the message is this is going to be murder-suicide if this relationship ends. And so that’s the frame of reference that she was living in at that time.
.. This case is all about anguish. Ms. Hayes was in particular anguished about this situation with you, such that she did not want to be alone with you. On the fatal day of August the 5th, she came over to the house with two men with her because she did not want to be alone with you. She was fearful of you. She did have anguish.
“The stream of e-mails that were presented in the trial of this case and today show that you taunted her. You made her life really quite miserable. She was extremely stressed about your behavior, not knowing what you were going to do.
“The situation came on August the 5th. This was an ambush. You ambushed Tiffani Hayes. . . . This was well-planned and calculated. You did not want her coworkers to be diere. You wanted her to get rid of those and to come over. All you had to do was put out her box of property on the curb and stay inside the house. You wanted her to come because you had plans to kill this woman. This was well-designed and thought-out.
“And on die fateful day, she got out, she was horrified. She saw you taire that gun out. She turned and ran back to the car to escape for her life, and you chased her down, put a gun to the back of her head, and shot her dead. Certainly not accidental. Certainly on purpose.
“. . . This was an execution of Ms. Hayes, and that’s what you accomplished in this case.
“ So I do adopt by reference the factual statements made by the State in dieir responsive pleading. ... I tíiink diose were fully demonstrated by evidence in the case.
“Considering the aggravating factors, and there are a number of them here, the taunting, die stalking, the torment here of Ms. Hayes ahead of time such that she was scared for her life, far outweigh any mitigating factors.”
In State v. Soto, 299 Kan. 102, 120-24, 322 P.3d 334 (2014), this court analyzed the Kansas hard 50 sentencing statute in light of Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2162-63, 186 L. Ed. 2d 314 (2013). In Alleyne, the United States Supreme Court held that the right to a jury trial under the Sixth Amendment to the United States Constitution requires that any fact increasing a mandatory minimum sentence increases the penalty for a crime and is therefore an element of the crime that must be proved to a juiy beyond a reasonable doubt. 133 S. Ct. at 2158.
In Soto, tiiis court applied the Alleyne reasoning to the Kansas statutory sentencing scheme and determined that the process that allows a judge to find the existence of one or more aggravating factors, instead of requiring a jury to find those factors beyond a reasonable doubt, violates the Sixth Amendment. Soto, 299 Kan. at 124. In tire present case, it is evident that the district court made explicit factual findings that subjected Hayes to an enhanced sentence. This was constitutional error.
And, as in Soto, the circumstances of the present case do not lend themselves to a harmless error analysis. The issue of whether the crime was committed in an especially heinous, atrocious, or cruel manner was not uncontroverted and was not supported by such overwhelming evidence that we can declare beyond a reasonable doubt that a jury would have found beyond a reasonable doubt the existence of the aggravating factor. Further, Hayes presented several mitigating factors to the court, including his lack of significant criminal histoiy, the extreme mental or emotional disturbances that he was undergoing at the time of the shooting, and his overall positive conduct as a parent, neighbor, and marital partner to his first wife. Thus, we could not conclude beyond a reasonable doubt that no rational jury would have determined these mitigating circumstances outweighed the aggravating circumstance.
Following Soto, we conclude Hayes’ sentence was imposed in violation of his Sixth Amendment right to a juiy trial. We accordingly vacate the hard 50 sentence and remand the case for resent-encing.
Hayes raises the additional argument on appeal that the State failed to present to the district court sufficient evidence of aggravating factors. The district court heard evidence that Hayes had threatened Tiffani in the past, that he lured her to his residence in order to kill her, and that he killed Tiffani as she tried to run away from him. Viewing this evidence in tire light most favorable to the prosecution, we conclude that a rational factfinder could have found beyond a reasonable doubt that Hayes committed the murder in an especially heinous, atrocious, or cruel manner. We there fore limit our basis for vacating Hayes’ hard 50 sentence to the Alleyne violation of the constitutional right to a jury trial. See Soto, 299 Kan. at 123-24.
Hayes also argues that the district court lacked the constitutional authority to impose the aggravated grid-box sentence for aggravated assault without submitting the aggravating factors to a jury. This court has previously rejected this argument, and we decline to depart from our precedents here. See, e.g., State v. Beaman, 295 Kan. 853, 870-71, 286 P.3d 876 (2012) (imposition of aggravated sentence in grid box without factors proved beyond reasonable doubt to jury not constitutional violation); State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008) (same).
Convictions affirmed, hard 50 sentence vacated, and remanded for resentencing. | [
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The opinion of the court was delivered by
Moritz, J.:
A juiy convicted Andrew Greene of rape, and the district court imposed a life sentence without the possibility of parole after adjudging Greene an aggravated habitual sex offender. In this direct appeal, Greene argues the district court erroneously admitted statements he made in a pretrial notice of alibi, entitling him to reversal of his conviction and a new trial. We agree the district court erred in admitting Greene’s statements, but because we conclude the error was harmless, we affirm Greene’s conviction.
Citing State v. Turner, 293 Kan. 1085, 272 P.3d 19 (2012), and the rule of lenity, Greene also argues the district court should have sentenced him as a persistent sex offender under K.S.A. 21-4704(j), rather than as an aggravated habitual sex offender under K.S.A. 21-4642. Because we resolved this issue in Greene’s favor in Turner, we vacate Greene’s sentence and remand for resentencing.
Factual and Procedural Background
The State charged Greene with one count of rape, alleging that on March 9-, 2009, Greene had sexual intercourse with A.F. under circumstances when A.F. was incapable of giving consent due to mental deficiency or disease, which condition was known or reasonably apparent to Greene. See K.S.A. 21-3502(a)(l)(C). The following relevant facts were established at Greene’s trial.
In 2009, 22-year-old A.F. volunteered at Catholic Charities in Olathe where her mother, M.F., worked as a case manager. M.F. testified A.F. has been diagnosed with autism with pervasive developmental delays and mild to moderate mental retardation and that she has an Intelligence Quotient (IQ) of 55. At Catholic Charities, A.F. performed basic tasks like sorting donated clothing and preparing sacks of groceries for needy families. Greene frequently visited Catholic Charities to pick up bread or clothing.
On March 9, 2009, M.F. left Catholic Charities around 11:15 a.m. to pick up donated appliances. A.F. remained at Catholic Charities, folding clothing and placing it on a hallway table. A.F. testified Greene approached her in the hallway, told her she was pretty, and asked her if she wanted to be his girlfriend. A.F. testified they did not talk long but she liked that Greene paid attention to her, and she was interested in having a boyfriend. Shortly thereafter, A.F. took some empty boxes outside to place them in a dumpster and saw Greene sitting in his car. Greene asked A.F. if she wanted to go for a ride with him, and A.F. got into Greene’s car. A.F. testified she wanted to go with Greene, but she did not remember where he said they were going. Over the next few hours, Greene and A.F. visited the public library, visited Greene’s friends at a car shop or car wash, stopped at a McDonald’s to get a drink, and parked in a wooded area at Lake Olathe.
A.F. testified Greene was nice to her and held her hand as they drove. At some point, Greene asked A.F. to be his girlfriend, and she said yes. While they were parked at the lake, Greene told A.F. to remove her clothing. After A.F. complied, Greene removed his own clothing.
A.F. demonstrated difficulty at trial in identifying and testifying about body parts. But with the aid of a marker, anatomical diagrams of the male and female body, and a series of painstaking questions from the prosecutor, A.F. testified Greene placed his mouth on her mouth, breast, and vagina; placed his penis on the outside of her vagina; and placed his fingers inside her vagina.
After the encounter at the lake, Greene drove A.F. back toward Catholic Charities. Meanwhile, M.F. had returned to Catholic Charities and notified police A.F. was missing. M.F. testified she reported A.F. missing because if A.F. became lost or was in unfamiliar surroundings A.F.’s “mental age [would go] from maybe a 12-, 13-year-old to a 5-year-old,” A.F. would be scared, and she would not know how to ask for help.
Hemy Harrison, the husband of M.F.’s coworker, assisted with the search. Harrison saw A.F. in a car with Greene near Catholic Charities. Harrison signaled Greene to stop the car, and Greene complied. Harrison rolled down his window and told A.F. the police were looking for her and her mother was very concerned. A.F. got out of Greene’s car, and Greene drove away.
A.F. went inside the Catholic Charities building where she was met by M.F. and a police officer. M.F. testified she took hold of A.F.’s hand and could feel A.F. “shaking from the inside.” According to M.F., A.F.’s hair was tousled and her face displayed a flat affect, or lack of emotional expression. A.F. did not want to speak with the police, so M.F. took A.F. to M.F.’s office. There, A.F. told M.F. the details of her encounter with Greene as recounted above. M.F. then relayed the information to police.
Later that day, M.F. took A.F. to the hospital for a sexual assault examination. The nurse examiner completed a rape ldt and turned it over to police. A.F.’s vaginal and cervical swabs tested negative for seminal fluid, but Greene was identified as a potential male donor of non-sperm DNA found on A.F.’s vaginal swab.
Two days after the incident, M.F. took A.F. to Sunflower House for a forensic interview with Sarah Byall. At trial, Byall testified A.F. seemed shy and primarily communicated through short, “abrupt” answers, but she appeared to understand the questions asked.
A.F. disclosed to Byall that Greene approached her while she was folding clothes and asked her to go to dinner. A.F. agreed and they left in Greene’s car, eventually driving to the woods. There, Greene told A.F. to remove her clothes, and he removed his own clothes. A.F. told Byall that she and Greene then engaged in vaginal intercourse and Greene placed his mouth on her breast. After they stopped at Greene’s workplace, Greene took A.F. back to Catholic Charities and gave her his phone number.
Byall testified A.F. had difficulty identifying and talking about body parts during the interview so A.F. used diagrams to indicate where Greene touched her. On cross-examination, Byall testified A.F. stated she wanted the sexual encounter to happen. The State admitted the video recording of A.F.’s Sunflower House interview and played it for the jury.
Two inmates who were housed with Greene after his arrest testified on behalf of the State. One inmate, William Haley, testified Greene told him he picked up A.F. from Catholic Charities, talked her into going to a park, convinced her he cared for her, and “fingered her.” Haley, who knew M.F. through her work at Catholic Charities, later told M.F. about his conversation with Greene.
The second inmate, Fawaz Al-Said, testified Greene told him he was accused of raping a mentally retarded girl. Greene said he saw the girl working inside Catholic Charities, he approached her when she went outside to empty trash, and he asked her where the library was. Greene said the girl agreed to show him where the library was and to get dropped back off, and they went to the library for 2 or 3 hours. Greene also told Al-Said that he took the girl to get a drink at Burger King or McDonald’s and to visit some of his friends at an auto detail shop near the Great Mall. Finally, Greene told Al-Said that he took the girl to Lake Olathe and tried to “get head” from her but Greene could not maintain an erection so he spit in his hand, pulled her pants down, and tried to put his fingers inside her vagina. Greene told Al-Said that he also tried to get on top of the girl but could not penetrate her because he could not maintain an erection. As discussed in more detail below, the State also admitted evidence that Greene at one time intended to present an alibi, i.e., to claim he was never with A.F. that day.
Greene did not testify and presented no witnesses. The jury found Greene guilty of rape. At sentencing, the district court found Greene to be an aggravated habitual sex offender as defined in K.S.A. 21-4642 and imposed a life sentence without the possibility of parole. This court’s jurisdiction to hear Greene’s direct criminal appeal arises under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed).
Discussion
The district court erred in admitting statements Greene made in his alibi notice, but that error was harmless.
Although the district court appointed counsel to represent Greene, Greene vacillated between accepting and declining that representation throughout the proceedings, at times attempting to represent himself or filing pro se motions while represented by counsel. Acting pro se, Greene sent a pretrial notice of alibi to the district attorney’s office before trial, stating:
“ ‘Take notice that the following named witness will be relied upon by the defendant to rebut the testimony and evidence of the State's witness. Miss Tamara Hutchinson will be called upon to give testimony as to where the defendant was at the time in question. Respectfully submitted, Andrew Greene.’ ”
But Greene did not present an alibi defense at trial. Instead, it appears Greene’s theory of defense was that he and A.F. had consensual intercourse. For instance, during opening statements, defense counsel identified the primary issues as (1) whether A.F. could validly consent to intercourse despite her developmental disabilities, and (2) if not, whether Greene knew or reasonably should have known that A.F.’s disabilities rendered her incapable of valid consent.
Near the close of the State’s case-in-chief, the prosecutor recalled Detective Kenton Thompson and asked him to describe Greene’s defense theories over the course of the proceedings. Over Greene’s objections, Thompson testified he listened to several phone calls Greene made from jail and that during those calls, Greene discussed whether he had been with A.F. on the day of the alleged rape. The following colloquy occurred between Thompson and tire prosecutor:
“Q. [Prosecutor] During the pendency of this case, has [Greene] made statements that he wasn’t even there?
“A. [Thompson] Along those lines, yes.
“Q. And along those lines, can you tell me what you mean?
“A. He made statements throughout numerous phone calls, you know, initially, that nothing happened with this woman, referring to [A.F.] He made statements, 1 did not have sex with this woman'.’ He made statements, you know, that no DNA would be found, essentially that nothing happened with her.
“Q. Did you interview a woman named Tamara Hutchinson?
“A. Yes, I did.
“Q. How did that name become known to you?”
Defense counsel objected to this last question as irrelevant, but the court overruled the objection, permitting Thompson to testify he learned Hutchinson’s name from a letter Greene sent to the district attorney’s office. The prosecutor then sought admission of Greene’s alibi notice, and defense counsel again objected, stating in a bench conference:
“The defense—the defendant has a right not to present or not to be required or have a burden placed upon them to produce evidence at a trial. Likewise, a defendant has a right not to testify. Admitting [tire notice of alibi] is essentially a comment on our failure to present witnesses or to have Mr. Greene testify. That may be fairer rebuttal evidence if we were to present another witness or not present that witness; but by introducing this, it simply points out that we have not presented a witness.”
The prosecutor argued the alibi notice demonstrated “the defendant’s theory that he wasn’t there. It’s another statement by him which has changed throughout the course of this case. It’s his statement.” The court overruled Greene’s objection, reasoning:
“I think the statements—the jury could malee some inferences from it as to what the defendant was thinking and I think it goes to the issues in the case as to what he believed and what he was saying happened, that sort of tiling, just as though he gave his statement to the police. It’s that type of evidence, what he told the police or what he told the prosecutor, I think it’s admissible."
Thompson then testified Greene’s alibi notice indicated Greene was somewhere else at the time of the rape. At the State’s request and over Greene’s objection, Thompson read the alibi notice into the record. Further, Thompson testified that about the time Greene submitted the alibi notice, Greene suggested in jailhouse phone calls that he had a witness who would help prove Greene did not do this type of thing. Finally, Thompson testified that in later phone calls, Greene said A.F. consented to the intercourse.
During her closing argument, the prosecutor referred to Greene’s jailhouse phone calls and alibi notice, emphasizing that Greene initially denied contact with A.F., later asserted “nothing happened” and no DNA would be found, and ultimately claimed A.F. validly consented to the sexual contact. The prosecutor suggested the juiy could infer from Greene’s evolving defense theories that Greene knew at the time of the incident that A.F. was incapable of giving valid consent.
Analysis
Greene asserts the district court erred in admitting his alibi notice. Specifically, he contends that because he did not deny having intercourse with A.F. and did not present an alibi defense at trial, the statements in the alibi notice were irrelevant and their admission prejudiced him by functionally shifting the burden of proof to him to produce witnesses and evidence in his defense.
In State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010), we set forth the steps an appellate court applies in considering the admissibility of evidence:
“Under the multistep evidentiary analysis, the first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. [Citation omitted.] The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. [Citation omitted.] In the third step of the analysis, a district court must apply the applicable rule or principle. The appellate court’s standard of review of this third step varies depending on tire rule or principle that is being applied. Some rules and principles grant the district court discretion, while others raise matters of law.”
While the parties briefly mention relevance, they primarily focus their appeal arguments on the second and third steps of the analysis, i.e., whether the district court correctly determined and applied the applicable rule of evidence or legal principle. For purposes of our discussion, we assume the relevancy of the alibi statements and focus on the question of admissibility.
The admissibility of evidence related to a pretrial alibi notice appears to be an issue of first impression in Kansas. K.S.A. 22-3218 requires a criminal defendant give tire prosecutor notice in writing if the defendant plans to offer evidence at trial to “the effect that he was at some other place at the time of the crime charged .... The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.” K.S.A. 22-3218; see also State v. Deffebaugh, 277 Kan. 720, 722-28, 89 P.3d 582 (2004) (interpreting K.S.A. 22-3218 and discussing the meaning of “alibi”).
Here, Greene filed an alibi notice with the prosecutor but did not present an alibi defense at trial. In the federal system as well as several states, evidence related to an alibi notice is inadmissible if the defendant withdraws or abandons that defense before trial. See Fed. R. Crim. Proc. 12.1(f) (“Evidence of an intention to rely on an alibi defense, later withdrawn, or of a statement made in connection with that intention, is not, in any civil or criminal proceeding, admissible against the person who gave notice of tire intention.”); La. Code Crim. Proc. Ann. art. 727 F (West 2013) (same); see also Simms v. State, 194 Md. App. 285, 311, n.18, 4 A.3d 72 (2010) (citing similar rules from other jurisdictions); State v. O’Neal, 143 N.M. 437, 441, 176 P.3d 1169 (2008) (discussing “ ‘broader sweep’ ” of New Mexico Rule 5-508[E], which states: “ ‘The fact that a notice of alibi was given or anything contained in such notice shall not be admissible as evidence in tire trial of the case.’ ”).
Simms is particularly instructive. There, as here, the defendant did not present an alibi defense at trial but the trial court permitted the State to introduce the defendant’s pretrial alibi notice at trial. 194 Md. App. at 289, 298-306. Like Kansas, Maryland had no stat utory rule barring the admission of evidence related to an alibi notice. Nevertheless, relying heavily on the rationale of People v. Shannon, 88 Mich. App. 138, 276 N.W. 2d 546 (1979), the Simms court concluded the trial court erred in admitting the evidence:
“ ‘Informing the jury of defendant’s failure to produce an alibi witness where he had previously given notice unduly denigrates defendant’s case when he later chooses to present no evidence. At issue is the jury’s ability to draw an impermissible inference of guilt from defendant’s decision not to call an alibi witness and its relation to his involvement in the charged crime. A jury is left with the impression that by defendant’s unsuccessful attempt to follow through with his alibi, guilt is rendered more presumable and apparent.
“ ‘ . . . Where a defendant testifies to an alibi and calls no additional witnesses to support it, the prosecution, by commenting on tire nonproduction of corroborating alibi witnesses, is merely pointing out the weakness in defendant’s case. When, however, the defendant produces no testimony to support an alibi, tire prosecutor, by commenting on the nonproduction of alibi witnesses, is not exposing a weakness in defendant’s case, but is rather improperly shifting the burden of proof to the defendant. (Citations and footnotes omitted.)’ ” Simms, 194 Md. App. at 320-21 (quoting Shannon, 88 Mich. App. at 143-45).
Like the Maryland Court in Simms, we find Shannons reasoning persuasive, and we agree with Greene that the admission of his alibi notice essentially “functioned as burden shifting or commentary on [his] failure to produce witnesses or evidence in his defense.” We hold that when a defendant submits an alibi notice to the State but withdraws or abandons his or her alibi defense before trial, evidence related to the alibi notice or the statements made therein are inadmissible. Because Greene did not present an alibi defense at trial, the district court erred in admitting evidence related to Greene’s alibi notice.
Nevertheless, the erroneous admission of evidence is subject to review for harmless error. See K.S.A. 60-261. The harmless-error analysis under K.S.A. 60-261 ordinarily requires us to determine whether there is a reasonable probability that the error affected the outcome of the trial in light of the entire record. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013). But we apply a more stringent harmless-error standard when an error infringes on federal constitutional rights. Under that standard, an error may be declared harmless if there is no reasonable possibility the error affected the outcome. State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Under either standard, the party benefitting from the error bears the burden of establishing the error was harmless. Longstaff, 296 Kan. at 895; Ward, 292 Kan. at 568-69.
Under the facts of this case, we conclude the error was harmless under either standard. At trial, it was undisputed that Greene had sexual intercourse with A.F., and A.F.’s own testimony tended to support Greene’s claim that the intercourse was consensual. Thus, the primary issues for Greene’s jury were whether A.F.’s mental disease or deficiency rendered her incapable of giving valid consent and, if so, whether the condition that rendered A.F. incapable of giving valid consent was known or reasonably apparent to Greene.
The uncontroverted evidence at trial established that A.F. has autism with pervasive developmental delays, mild to moderate mental retardation, and a below-average IQ. A.F.’s psychiatrist, Ulisa Diane Buckingham, testified that at the time of the incident A.F. could read at a sixth-grade level, functioned at a 14- or 15-year-old level, and could not live independently. According to Buckingham, A.F. required adult supervision for basic activities such as bathing, brushing teeth, and cooking.
Further, Buckingham testified A.F. demonstrated a delayed understanding of sexual intercourse and its attendant consequences. Buckingham described a conversation with A.F. approximately 2 months before the rape, in which A.F. told Buckingham she had seen a photograph of two fully-clothed girls kissing and asked Buckingham what it means to have oral sex with a boy. Buckingham opined that A.F.’s inquiry was indicative of a “teenage exploration phase” and explained that A.F. had no concept of the meaning of oral sex or its associated risks.
Buckingham further testified A.F. had never asked about sexual intercourse and that at the time of the rape, A.F. would not have understood any of the underlying issues related to sexual intercourse. In a session with Buckingham 1 month after the rape, A.F. told Buckingham she wanted to get pregnant. According to Buckingham, A.F. demonstrated no understanding of what caused preg nancy or of how she would care for a child. Buckingham equated A.F.’s statement to a child-like fantasy.
A.F.’s trial testimony corroborated Buckingham’s testimony describing A.F.’s limited sexual knowledge. A.F. testified for nearly 2 hours, and at one point, the prosecutor asked her several questions about her understanding of sex. The following colloquy occurred:
“Q. [Prosecutor] Back in March before this happened to you, did you know what sex was?
“A. [A.F.] Yes.
“Q. What is sex?
“A. I don’t know.
“Q. Don’t know or can’t say?
“A. Don’t want to say.
“Q. We talked earlier about sex at a previous hearing. Is sex something that happens with a boyfriend and girlfriend?
“A. Yes.
“Q. Can you tell me what sex is?
“A. No.
“Q. Can you [sic] me what the purpose of sex is? Do you know why people have sex?
“A. Yes.
“Q. Why do people have sex?
“A. I don’t know.
“Q. Don’t know or don’t want to say?
“A. Don’t want to say.
“Q. Have you learned more about sex since this case started?
“A. Yes.
“Q. What have you learned about sex since this case started?
“A. (No response.)
“Q. Now you said earlier that you use your vagna to pee; is that correct?
“A. Yes.”
On cross-examination, A.F. testified that after Greene parked at the lake he talked about wanting to have sex with her. A.F. testified she was interested in having sex with Greene, but when defense counsel asked her if she could have said no, A.F. stated, “Probably not.” Defense counsel then asked why she thought she couldn’t say no, and A.F. responded, “I don’t know.” A.F. also testified she enjoyed the encounter with Greene. On redirect, the prosecutor asked A.F. if she understood the term “consent.” A.F. testified consent “[m]eans you’re giving them permission” and further testified she gave permission for someone to touch her body that day.
Despite A.F.’s testimony that she consented to the sexual encounter with Greene, the jury nevertheless was required to decide whether A.F. was capable of giving valid consent in light of her developmental disabilities. See State v. Ice, 27 Kan. App. 2d 1, 4-5, 997 P.2d 737 (2000) (“If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent.”).
Buckingham’s testimony regarding A.F.’s limited understanding of sexual intercourse as well as A.F.’s own testimony clearly demonstrated A.F.’s inability to comprehend the sexual nature of the act, its potential results, or her right to refuse to participate. Further, it is significant that A.F. testified for almost 2 hours, permitting the jury to fully assess A.F.’s responses and demeanor and determine based on all the evidence whether A.F. comprehended the sexual nature of the acts she engaged in with Greene, understood she had a right to refuse, and possessed a rudimentary grasp of the consequences. Additionally, we find it compelling that although A.F. testified nearly 2 years after the incident, her testimony substantially corresponded with her prior statements to M.F. and the forensic interviewer. Finally, A.F.’s trial testimony substantially corresponded with the inculpatory statements Greene made to two inmates while awaiting trial.
Based on our review of the record, we are firmly convinced there is no reasonable possibility that the erroneous admission of Greene’s statements in his alibi notice contributed to the verdict, and we affirm his conviction.
The district court should have sentenced Greene as a persistent sex offender under K S.A. 21-4704(j).
Next, relying on State v. Turner, 293 Kan. 1085, 272 P.3d 19 (2012), Greene argues the district court erred in sentencing him as an aggravated habitual sex offender under K.S.A. 21-4642, rather than sentencing him as a persistent sex offender under K.S.A. 21-4704(j).
In Turner, we held, “[w]hen a defendant is convicted of rape and has at least one prior rape conviction, K.S.A. 21-4642 and K.S.A. 21-4704(j)(2)(B) both apply equally and neither is more specific. Such a defendant is therefore to be sentenced under the more lenient statute, K.S.A. 21-4704(j).” 293 Kan. 1085, Syl. ¶ 4.
Greene was convicted of rape, and he has at least one prior rape conviction from 1975. This subjects him to sentencing as a persistent sex offender under K.S.A. 21-4704(j)(2)(B). Additionally, Greene has two prior conviction events for sexually violent crimes: (1) two 1975 Kansas convictions entered on the same day in the same court for rape and aggravated indecent liberties, and (2) a 1984 Missouri conviction for first-degree sexual abuse. This subjects him to sentencing as an aggravated habitual sex offender under K.S.A. 21-4642. Because both statutes apply equally and neither is more specific, our ruling in Turner requires that Greene be sentenced under tire more lenient statute. Consequently, we vacate his sentence and remand for resentencing under K.S.A. 21-4704(j).
Conviction affirmed, sentence vacated, and case remanded for resentencing.
BILES, J., concurs in the result. | [
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The opinion of the court was delivered by
Rosen, J.:
The Court of Appeals, in an unpublished opinion filed December 21, 2012, reversed Monh Suady s conviction of aggravated robbery, holding that the brief taking of the victim’s vehicle was merely ancillary to other crimes. The Court of Appeals affirmed his convictions of attempted aggravated robbery and intentional aggravated battery. This court denied Suady’s petition for review and granted the State’s cross-petition for review, with the result that the only issue before this court is the reversed aggravated robbery conviction.
In August 2009, Kenneth Price, who was about 60 years old, single, and a resident of Emporia, became acquainted through an online dating service with a woman named Anna Marie Harris, who represented herself as being approximately the same age as Price, single, and living in the Kansas City area. Price found her online profile interesting enough to initiate an online conversation with her.
After several telephone conversations, the two decided to meet in person. Harris gave Price the directions to her apartment, and they agreed to get together on the afternoon of August 26. Price left Emporia around noon driving his 2004 Durango SUV and arrived at Harris’ apartment around 2 p.m. He then drove them to a restaurant. On their way, Harris spent considerable time talking and texting with someone on her cell phone. Immediately upon arriving at the restaurant, Harris announced that she had to use the restroom and then disappeared for 15 to 20 minutes. The couple left the restaurant around 3 p.m., and Price drove her back to her apartment. The two agreed that they would meet again later that day.
Price then drove to a nearby WalMart and purchased a DVD. While he was in the store, his vehicle was locked. After returning to his vehicle, Price drove to a far side of tire parking lot and read a magazine while he passed time until he would see Harris again.
Around 6 p.m., Harris arrived at the parking lot. She pulled up next to Price’s SUV, smiled, and waved to him to come over to her car. He got in the front passenger seat of her car, where he sat talking with her for 10 to 15 minutes. Price had $200-$300 with him, and he gave Harris some money to assist her with some traveling expenses and to pay a bill.
The two discussed getting together again, and then Price got out of Harris’ car and returned to his own vehicle. After watching Harris drive away, he started his return trip to Emporia. Surveillance cameras operated by WalMart would later reveal that a dark figure approached Price’s SUV while he was waiting for Harris and quickly moved up near the SUV as soon as Price got out of his vehicle. The recorded images did not show the dark figure leave the area near the SUV, and the dark figure was no longer visible when Price drove away.
As he was driving along Interstate 35, Price was approaching a construction area when he experienced a hand come around his neck from behind and another hand holding a knife to his throat while a man’s voice began screaming in his ear. Price grabbed at the knife to push it away, slammed on the brakes, and began jerking the steering wheel back and forth rapidly. He heard the man shout, “Don’t do that, stop!” and, “Give me your money!” Price continued to drive erratically in order to alert people around him that he was in trouble and to keep his assailant off balance. He continued to keep a grip on the knife. He then slammed hard on tire brakes, reached across widr his right hand to open the door, and used his shoulder and foot to push the door open. Although the SUV was traveling at 10-15 miles per hour, Price jumped out, releasing his hold on the knife and injuring his shoulder as it hit the door frame.
The SUV continued forward until it hit a barrier, coming to a stop about 40-50 feet from where Price landed. As Price stood on the highway next to the median, he saw the brake lights on his SUV come on and, shortly afterwards, he saw the backup lights come on. The SUV then backed across the highway to the shoulder and backed down the shoulder to where Price was standing.
The assailant got out of the SUV and shut the door, and the SUV continued to roll in reverse down die highway and across three lanes of traffic. The assailant screamed, “Give me your money! Give me your money!” Price stepped into oncoming traffic to get away from the assailant, while the assailant grabbed at his arms and his pockets. This all happened only a few seconds after Price had jumped out of his vehicle.
During the attack, Price was able to get a good look at his assailant, whom he later identified as Suady. After about 30 seconds, Suady stopped trying to find Price’s money and ran away up an embankment toward a motel. Price ran after his SUV, trying to catch it before it hit the highway barrier, but was unable to reach it in time. When he arrived at the SUV, he reached inside, turned off the motor, retrieved his cell phone, called 911, and waited for police to arrive. He suffered permanent injuries to the nerves in his left hand from the knife and lasting injuries to his shoulder from where it hit the door frame.
Investigators contacted Harris and developed a lead that Suady was a suspect in the attack. Subsequent investigations disclosed that Harris and Suady had made approximately 25 telephone calls to each other on the day of the attack, including a call that Suady made almost immediately after the incident from a location very near the scene.
The State charged Suady with one count of aggravated robbery based on his taking of the Durango SUV, one count of aggravated batteiy, and one count of attempted aggravated robbery based on the attempted taking of Price’s money. At die conclusion of the State’s case, Suady moved to dismiss the aggravated robbeiy charge, asserting that the State failed to prove that he had taken Price’s SUV from the scene and that there was no evidence that he intended to take the SUV from Price. The district court overruled the objection, and the jury found Suady guilty of all three charges.
The district court sentenced Suady to a term of 247 months’ imprisonment for the aggravated robbeiy, a consecutive term of 43 months’ imprisonment for the aggravated batteiy, and a concurrent term of 32 months’ imprisonment for the attempted aggravated robbeiy. Suady filed a timely notice of appeal. The Court of Appeals reversed the aggravated robbery conviction but affirmed die remaining convictions and sentences. Both Suady and the State filed petitions for review. This court denied Suady’s petition for review and granted the State’s cross-petition, which was limited to the aggravated robbery reversal.
The Court of Appeals reversed the aggravated robbery conviction, relying on State v. Montgomery, 26 Kan. App. 2d 346, 349-50, 988 P.2d 258 (1999). The panel quoted Montgomery for the proposition that aggravated robbery is a specific intent crime and that a taking incidental to the perpetration of another crime does not satisfy the statutory element of a coercive taking. The panel concluded that Suady never formed the specific intent to take Price’s Durango and that his use of the SUV to drive to where Price was standing was only incidental to his failed attempt to rob Price of his money.
In State v. Edwards, 299 Kan. 1008, 327 P.3d 469 (2014) we expressly disapproved of die Montgomery analysis. We noted that die plain language of the robbery statutes creates no requirement of specific intent and requires only a “taking” of property, without distinguishing between “incidental” and intentional taking. In light of Edwards, we reverse the Court of Appeals on the issue before us.
Because the Court of Appeals reversed on the Montgomery issue, it did not address other challenges to the aggravated robbery conviction. The first of those issues is whether the statutory language of taking property “from the person or presence of another” creates an alternative means issue, both for the robbery and for the attempted robbery convictions. This court has ruled against Suady s position in State v. Littlejohn, 298 Kan. 632, 658, 316 P.3d 136 (2014).
Suady also argued that his convictions for aggravated robbery and attempted aggravated robbery were multiplicitous. The Court of Appeals declined to address this issue, determining that it was moot because it had already reversed the aggravated robbery conviction. Suady, 2012 WL 6734503, at *3. This issue is no longer moot, but it lies outside the narrow scope for which review was granted. The case is accordingly remanded to die Court of Appeals for resolution. Because review was not granted on the other issues raised by Suady, the judgment of the Court of Appeals with respect to those issues is affirmed.
Moritz, J., not participating.
R. Scott McQuin, District Judge, assigned.
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In a letter received by the Clerk of the Appellate Courts dated August 15, 2012, respondent Richard B. Payne, 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 (2011 Kan. Ct. R. Annot. 371).
At the time the respondent surrendered his license, a complaint docketed for investigation was pending in accordance with Supreme Court Rule 210 (2011 Kan. Ct. R. Annot. 333). The complaint contains allegations of misconduct by the respondent in committing multiple violations of traffic laws, eluding police, and unlawfully disposing of a loaded firearm. Respondent’s trial is pending in the Wyandotte County District Court for the alleged 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 Richard B. Payne 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 Richard B. Payne 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 (2011 Kan. Ct. R. Annot. 379).
Dated this 17th day of August, 2012. | [
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The opinion of the court was delivered by
Holmes, J.:
Billy Oil Co., Inc., and eleven other oil and gas producers or drillers who operate in Leavenworth County, Kansas, plaintiffs below, sought a declaratory judgment that a certain Leavenworth County zoning resolution was invalid and also sought to recover damages. The petition named the Board of County Commissioners, the planning and zoning director, and the Leavenworth County sheriff as defendants. The district court denied the plaintiffs’ motion for a temporary injunction, upheld the validity of the resolution, and denied a request for attorney fees pursuant to 42 U.S.C. § 1988 (1982). The plaintiffs have appealed.
The resolution in issue, Article XVIII of the County’s zoning resolutions, was adopted by the defendant, the Board of County Commissioners of Leavenworth County, on October 10, 1984, pursuant to the home rule powers granted by K.S.A. 19-101a et seq. The resolution authorized the Department of Planning and Zoning to issue special use permits for various specified uses and buildings otherwise prohibited by the zoning resolutions. Section 21 of the resolution concerns the issuance of a special use permit in order to place an oil or gas well, drilling apparatus, or storage tanks in an area not zoned for that land use. The resolution, in pertinent part, reads as follows:
“A Special Use Permit may be issued by the County Commissioners of the county of Leavenworth which authorizes the location of any of the following buildings or uses in a district from which they are prohibited by this resolution. Should one or more of the special uses set out in this article be set out in a particular zoning district definition, a Special Use Permit must be obtained for that use, regardless.
“A Special Use Permit is obtained by filing an application accompanied by all appropriate documents in the office of the Department of Planning and Zoning along with a filing fee as set out by the County Commissioners. The process for obtaining a Special Use Permit is as outlined in Article XXVI, ‘AMENDMENTS’ of this zoning resolution.
“The following buildings and uses may be authorized by a Special Use Permit:
“21. Oil and natural gas wells, drilling apparatus and storage tanks.
(The Zoning Administrator may issue permits as specified in Section 21 of this Article without requiring a Special Use Permit to be obtained. If the Administrator is reluctant to approve the issuance of said permit, (s)he shall request that the applicant apply for a Special Use Permit as set out in this Article.)”
On October 22, 1984, the Board of County Commissioners issued its Order No. 1984-15, which established a fee schedule for various special use permits. The “Oil and Gas well/drilling/storage fee” was set at $200.00. Collectively, the plaintiffs in this case, at the time of filing this action, had paid a total of $16,000 in obtaining the required special use permits. It appears that upon payment of the $200.00 fee the permit was issued automatically and that no applicant had been denied a permit.
Following a hearing, the court adopted the suggested findings of fact and conclusions of law submitted by the defendants and found in favor of the defendants on all issues. Plaintiffs raise several issues on appeal, many of which are now moot due to action of the 1986 legislature. The legislature adopted Senate Bill No. 678, which amended K.S.A. 1985 Supp. 19-101a to provide:
“(a) The board of county commissioners may transact all county business and perform all powers of local legislation and administration it deems appropriate, subject only to the following limitations, restrictions, or prohibitions:
(22) Counties may not regulate the production or drilling of any oil or gas well in any manner which would result in the duplication of regulation by the state corporation commission and the Kansas department of health and environment pursuant to chapter 55 and chapter 65 of the Kansas Statutes Annotated and any rules and regulations adopted pursuant thereto. Counties may not require any license or permit for the drilling or production of oil and gas wells. Counties may not impose any fee or charge for the drilling or production of any oil or gas well.” K.S.A. 1986 Supp. 19-101a.
It also amended K.S.A. 55-151(b) to provide that a copy of the application of intent to drill, required by that statute to be filed with the State Corporation Commission, be sent to the clerk of the county in which the well is to be drilled. Thus it appears obvious that Section 21 of the Leavenworth County resolution no longer has any force or effect and counsel for the defendants so acknowledged at oral argument before this Court.
The issue of whether the denial of a temporary injunction was proper is also conceded by plaintiffs to be not only discretionary with the court but moot under the present factual setting. However, plaintiffs do urge that in the event we determine the trial court erred in upholding the resolution that this action be remanded for further proceedings to determine as additional damages any fees paid by plaintiffs subsequent to the filing of this action.
Although the determination of the future validity of the resolution is mooted by the legislative action, it is still necessary to consider its validity in order to resolve the issue of whether plaintiffs are entitled to recover, as damages, the fees paid Leavenworth County under Section 21 of the resolution. Several attacks are made upon the validity of the resolution which, in view of the decision of the Court, need not all be considered.
Plaintiffs assert the resolution is void because it is a revenue raising procedure and an illegal tax disguised as a zoning fee, which bears no reasonable relation to the costs of administering the provisions of the resolution. K.S.A. 19-2901 et seq. establish a comprehensive scheme and plan for county zoning and planning. K.S.A. 19-2909 provides that the zoning board, with the approval of the county commissioners, may establish reasonable fees for zoning permits to be used “for the sole purpose of helping defray the cost of administering this act.”
The evidence before the trial court consisted of the testimony of John Jennings, President of plaintiff Jennings Drilling Company, and County Commissioner Donald F. Aaron, along with the deposition of the zoning administrator, Ronald Bacon. Mr. Aaron testified the ordinance was enacted to address a multitude of problems related to oil and gas drilling operations. Those problems included overflow from wells getting into streams and pastures, the breakdown of the shoulders of roads from trucks crossing roadside ditches, culvert installation, and others. Mr. Aaron testified a resolution already existed addressing the problem with the roadside ditches and it appears that control of many of the problems was not in the domain of the zoning employees. He also testified the $200 fee went towards sending the assessor out to check on the oil site, sending the gasman out, and sending a commissioner out to check on the zoning administrator.
The problems testified to by the county commissioner and the zoning administrator do not appear to be related to zoning, but are solely related to what the witnesses denominated “babysitting” the oil and gas industry. The resolution requires a special use permit in order to place an oil and gas drilling operation in an area in which it is otherwise prohibited. No hearing is required and, unless the applicant has a bad prior history, all applications are granted immediately upon payment of the fee. No applications had ever been denied. The problems testified to by the witnesses would appear to be subject to resolution by other than the zoning administrator and not a proper function of his office. Fees for other special use permits under Board Order #1984-15 ranged from $5.00 to $120.00. The trial court erred in determining the $200.00 fee was reasonably related to the cost of administering the act as required by K.S.A. 19-2909 and, therefore, we hold that Section 21 of the resolution relating to oil and gas wells, drilling apparatus, and storage tanks, and the $200.00 permit fee are invalid. As a result the plaintiffs, on remand, are entitled to the entry of judgment in their favor for damages in the amount paid by them under the terms of the resolution.
In view of the decision reached, we need not consider the other attacks upon the resolution, including plaintiffs’ assertion that it is unconstitutionally vague and denies them equal protection of the laws.
Finally, plaintiffs contend that as the resolution is unconstitutional it infringes upon their civil rights and they should be allowed attorney fees pursuant to 42 U.S.C. § 1988. The trial court in considering this issue stated:
“The Plaintiffs have requested an allowance for attorney fees under the provisions of 42 U.S.C. § 1988: This request is hereby denied because of the Court’s deciding this case against the plaintiffs. But even if the court had decided this case in favor of the plaintiffs, the Court would not have awarded attorney fees because the law is not entirely clear and the issues in this case are complex and difficult and the defendants acted in good faith in everything they did as developed in the evidence in this case; requiring them to pay attorney fees in such circumstances would not be warranted.”
As indicated earlier, we need not address the issue of the constitutionality of the resolution. In Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983), we reviewed at length the allowance of attorney fees under 42 U.S.C. § 1988 in civil rights actions. We also recognize that the discretion to not allow attorney fees to a prevailing party is somewhat limited. See annotations to 42 U.S.C.A. § 1988 (1981), notes 237 and 238. However, we agree with the trial court that this is not an appropriate action for allowance of fees even if we were to determine the resolution was unconstitutional. Not every action which attacks the validity of a statute, ordinance, or resolution can be denominated a civil rights action merely by stating in the petition that the questioned law violates 42 U.S.C. § 1983 et seq. (1982).
The judgment of the trial court is affirmed in part and reversed in part in accordance with the views set forth herein and the case is remanded with directions to enter judgment in favor of plaintiffs for the amount of the fees they have paid under the invalid resolution. | [
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The opinion of the court was deliverd by
Smith, J. :
This was an action to recover on two county warrants. One was for the sum of $112, issued January 9, 1891, by the chairman of the board of county commissioners and the county clerk, on the treasurer of Garfield county, in favor of M. L. Ramsell, for three months’ salary as county superintendent of public instruction. It was assigned by the latter to the plaintiff below. The other warrant was for a small sum for general expenses of the county.
Garfield county was created by an act of the legislature in 1887. (Laws 1887, ch. 81, §6.) In March, 1893, this court, in an original proceeding in quo warranto, brought by the state, on the relation of the attorney-general, rendered a judgment to the effect that Garfield county was an unconstitutional and void organization, and dissolved the same. (The State, ex rel., v. Comm’rs of Garfield Co., 54 Kan. 372, 38 Pac. 559.) This action of the court was based on the fact that, when Garfield county was erected, it contained a geographical area of less than 432 square miles, in violation of article 9, section 1, of the constitution. By chapter 98 of the Laws of 1893, the territory formerly known as Garfield county was made a municipal township of Finney county, to be known as “Garfield township,” and attached to Finney county for judicial purposes. In Riley v. Garfield Township, 54 Kan. 463, 38 Pac. 560, the county of Garfield was held to have had a de facto organization from the time of its creation to its dissolution, on the 7th day of March, 1893. (See, also, In re Short, Petitioner, 47 Kan. 250, 27 Pac. 1005.)
The warrant sued on is not a negotiable instrument. (Dan. Neg. Inst., 4th ed., §427; State v. Cook, 43 Neb. 318, 61 N. W. 693; The Mayor v. Ray, 19 Wall. 468, 22 L. Ed. 164; Railroad Co. v. Kearny County, 58 Kan. 19, 22.) The allowance of the claim by the board of county commissioners was neither final nor conclusive. (Commissioners of Leavenworth v. Keller, 6 Kan. 510.)
Ramsell, the payee in the warrant, was a de facto officer of Garfield county, and the question presented is whether there can be a recovery for his salary as such officer during the time he was performing the duties of the office. It is uniformly held, upon principles of public policy, that the authority of a defacto officer to perform the duties of the office which he assumes to exercise cannot be inquired into in a collateral action to which the officer is not a party. The reason for the rule ceases, however, when the officer seeks to recover compensation for services performed. None but an officer de jure can maintain an action for compensation or salary. (Throop, Pub. Off. §§661, 662.) In many of the decided cases where this ques tion was involved, it appeared that there was an officer de jure either claiming, or who might he entitled to, the salary and emoluments ; and for this reason a recovery by a de facto claimant was denied. (Dolan v. Mayor, 68 N. Y. 274.) The rule, however, is - not restricted in its application to offices to the emoluments of which there are more than one claimant.
In Dolliver v. Parks, 136 Mass. 499, 500, plaintiff, who claimed to be a licensed pilot under the laws of Massachusetts, sought to recover pilotage fees from the owner of a vessel. The latter defended on the ground that the pilot had not executed the bond required by law. It was contended that the plaintiff was a pilot de facto, and that his title to the office could not be contested in the suit for fees. The court said:
“ While the acts of an officer de facto are valid, so far as they concern the public or the rights of third persons who are interested in the things done, and his title to the office cannot be inquired into collaterally, yet when he sues in his own right to recover fees which he claims are due to him personally, by virtue of his office, his title to the office maybe put in issue ; and, to recover, he must show that he is an officer de jure. In such a suit, no rights of the public or of third persons are concerned. The question of the title to the office is directly raised; and he can recover no benefit to himself from an office which he holds de facto only.”
In Meagher v. The County of Storey, 5 Nev. 244, 251, Meagher was the qualified and acting recorder of Virginia City and performed certain duties as committing magistrate, imposed on him by an act of the legislature. The law creating the office was decided to be unconstitutional, and it was held that, while the incumbent might have been an officer de facto, yet, there being no legal authority to perform the services for which the action was brought, no compensation could be recovered; that the considerations which support and validate the acts of an officer de facto do not go so far as to require the payment of fees to such officers for services performed. The court said :
“No court has ever gone farther in this direction than to hold that acts performed by public officers are valid as to the public; they have not held that they themselves may in a direct proceeding of this kind recover any benefits from them.”
To the same effect see Darby v. City of Wilmington, 76 N. C. 133.
The plaintiff’s assignor not being an officer de jure, his right to recover the three months’ salary covered by the warrant must be denied.
The judgment of the court below is reversed and a new trial ordered.
Doster., C. J., Pollock, J., concurring. | [
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Subsets and Splits