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The opinion of the court was delivered by Schroeder, C.J.: This is an appeal by the State pursuant to K.S.A. 22-3602(fe)(l) from an order dismissing an information charging Peter H. Ransom (defendant-appellee) with rape (K.S.A. 21-3502), aggravated battery (K.S.A: 21-3414) and aggravated robbery (K.S.A. 21-3427). At issue is the computation of time for purposes of the appellee’s statutory right to speedy trial under K.S.A. 22-3402. On July 3, 1981, the victim, Ms. B., was attacked, severely beaten, and brutally raped in rural Geary County, Kansas. Twelve days later, on July 15, 1981, the defendant was arrested and charged in district court in case number 81 CR 399 with aggravated kidnapping, rape, aggravated battery and aggravated robbery. Counsel was appointed to represent the defendant at his first appearance on July 17, 1981. Ultimately the defendant retained his own counsel who has represented him throughout these proceedings. A preliminary hearing was held on August 6, 1981, and the appellee was bound over to stand trial. A week later, on August 13, 1981, the defendant was arraigned and pled not guilty. The defendant remained in confinement until September 10,1981, at which time he was able to post bond. Trial was set for November 5, 1981. On October 27, 1981, the defendant obtained a continuance to December 3, 1981. On November 30, 1981, the State obtained a continuance to January 18,1982. On January 14, 1982, the matter was continued by agreement of counsel to March 11, 1982. These continuances were obtained because of difficulties in obtaining essential witnesses. On March 4, 1982, the State moved for a further continuance, citing difficulty in obtaining two essential witnesses. Both witnesses were doctors who were vital to the chain of forensic evidence in the case, one of whom had conducted the initial examination of the victim and obtained evidence for the “rape kit.” Both doctors were planning to be out of the state on the date trial was scheduled; one would be in New York attending a professional meeting and the other would be in Minnesota taking his medical board examinations. At the hearing on the earlier motion for continuance granted January 14, 1982, the court expressed its concern about the long delay in bringing the defendant to trial and indicated that counsel for both sides should take steps to ensure that essential witnesses would be available for trial scheduled March 11, using compulsory process if necessary. At the time of the hearing on March 5, 1982, three continuances had been granted and a total of 121 days had elapsed from the arraignment which were chargeable to the State. The State informed the court that approximately 60 days were left of the 180 days allowed by K.S.A. 22-3402 to bring the defendant to trial. The defendant’s counsel indicated he had no objection to the requested continuance. Although the court recognized that technical problems in trying the case existed which were not the fault of either party, the court denied the motion to continue because of the number of times the case had previously been continued. The court further determined that should the State elect to dismiss the action no prejudice would occur to the defendant. The State then orally moved to dismiss the case without prejudice. In granting the motion the court cautioned counsel that the speedy trial issue could be a problem if the case was refiled. Four days later, on March 9, 1982, the State filed identical charges against the defendant in district court case number 82 CR 111. The preliminary hearing was continued at the request of the defendant to March 31, 1982. At that time the appellant waived the preliminary hearing and pled not guilty. Trial was set for May 3,1982. Due to the unavailability of an essential witness the State moved for a continuance on April 30, 1982. Trial was rescheduled for June 9, 1982. A hearing was held on June 7,1982, to consider motions by the State to hold a Jackson v. Denno hearing and to endorse additional witnesses and a motion by the defendant to dismiss for failure to comply with the speedy trial provisions of K.S.A. 22-3402. Finding the defendant’s speedy trial motion dispositive the court considered it first. The court found that 121 days which were chargeable to the State had elapsed from the time of the first arraignment until dismissal of the charges on March 5,1982, in case number 81 CR 399, and that 90 days had elapsed from the date the charges were filed in case number 82 CR 111. When combined, the time chargeable to the State in these two cases exceeded the 180-day time limit set forth in 22-3402(2). In its memorandum and journal entry of dismissal the trial court specifically rejected the State’s proposed finding of fact that the March 5, 1982, dismissal was a matter of necessity, and made the following conclusion: “The Court finds that 82 CR 111 is a case where no good reason has been shown to extend the legislatively imposed rule of limitations for reason urged by the State. Accommodation of the States witnesses by the prosecutor (thereby delaying the case beyond the 180 day rule plus the statutes’ permitted extensions) is not a reason sanctioned by statute or case law to extend the period within which a case may be tried.” The sole issue presented on appeal is whether the trial court properly combined the post-arraignment time chargeable to the State in case number 81 CR 399 with the post-arraignment time in case number 82 CR 111 in calculating the 180-day limit imposed by K.S.A. 22-3402(2) for bringing the defendant to trial. Where, as here, the defendant is released on bond, K.S.A. 22-3402(2) governs the time limits within which the defendant must be brought to trial following arraignment. It provides: “If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” The right to speedy trial provided by this statute does not attach until the defendant is arraigned. State v. Taylor, 3 Kan. App. 2d 316, Syl. ¶ 4, 594 P.2d 262 (1979); State v. Smith, 215 Kan. 34, 39, 523 P.2d 691 (1974). For this reason it is important to note that the time chargeable to the State in the second case did not commence until March 31, 1982, when the defendant was arraigned, and not on March 9, 1982, when the case was refiled and the defendant arrested, as the trial court erroneously concluded. The time elapsed from the defendant’s arraignment to June 7, 1982, when the case was dismissed, totaled 68 days, for an aggregate sum of time chargeable to the State in the two cases of 189 days. The opposing views as to the effect of the dismissal of original charges and the filing of subsequent identical charges on a defendant’s right to speedy trial is set forth in 21A Am. Jur. 2d, Criminal Law § 852. “Under a statute which provides that an accused must be discharged if not brought to trial within a certain period after arrest or indictment, there are two views as to the effect of the dismissal of the original indictment or information and the bringing of a subsequent indictment or information. One is that the statutory time is to be computed from the time of the later indictment or information, the theory being, broadly, that the original proceeding became a nullity on its dismissal and that the new accusatory pleading represents the institution of a new and independent proceeding to which the statute can be applied without reference to anything which may have previously occurred. The second theory applied in such circumstances is that to permit the state to deprive an accused of the right to a discharge by the simple expedient of nolle pressing the original indictment and procuring a new indictment for the same offense is, in effect, to rewrite the statute, which, especially since statutes of the kind in question were passed to implement the constitutional guaranty of a speedy trial, ought rather to be given such a construction by the courts as to secure the ends sought by the legislature.” See also 22A C.J.S., Criminal Law § 468; Annot., 30 A.L.R.2d 462. Where the State fails to bring the accused to trial within the time limits fixed by the statute, and where the delay is not due to the application or fault of the defendant or to extensions of time as provided by K.S.A. 22-3402(3), Kansas appellate courts have not hesitated to enforce the legislative mandate and order the defendant discharged. State v. Warren, 224 Kan. 454, 457, 580 P.2d 1336 (1978); State v. Cox, 215 Kan. 803, 528 P.2d 1226 (1974); State v. Sanders, 209 Kan. 231, 495 P.2d 1023 (1972). However, delays which are the result of the application or the fault of the defendant are not to be counted in computing the statutory period. It is the State’s obligation, not the accused’s, to provide the defendant with a speedy trial in conformity with both the Constitution and statute. State v. Warren, 224 Kan. at 456. Finally, should the State desire a continuance it must bring its motion within the appropriate statutory period. State v. Cox, 215 Kan. at 805. The issue presented here has been addressed by this court previously in State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975), and State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979). In Fink the defendant was originally charged on April 10, 1973, but because the defendant was not provided with a preliminary hearing within the time provided by statute the charges were dismissed on November 27, 1973. Shortly thereafter the case was refiled and the defendant moved to dismiss. In June 1974, the lower court held that the fourteen-month delay from the time of the defendant’s arrest in the first case to the hearing on the motion to dismiss had violated the defendant’s right to speedy trial and dismissed the charges. On appeal this court reversed, holding: “The dismissal or nolle prosequi of a criminal charge entered prior to the arraignment and trial of an accused is not a bar to a subsequent prosecution for the same offense. (Kenreck v. State, 198 Kan. 21, 24, 422 P.2d 894 and authorities cited.) The same is true where a charge has been dismissed against a prisoner prior to the expiration of the time limitation, and a second information is filed. The time elapsing between the filing of the first information and the dismissal of the cause by the court is not to be counted in determining the time elapsed between the filing of the second information and trial.” 217 Kan. at 675. Fink is readily distinguishable from the present case in that the dismissal of the first information occurred before arraignment and therefore K.S.A. 22-3402 did not apply. Furthermore, the first information was dismissed pursuant to the defendant’s own motion. In Cuezze defendants Cuezze and Houston were indicted and arraigned on charges of making false writings and conspiracy. Months later, before dismissing the charges, the State filed identical charges against the defendants in a second case, naming Faltico as an additional defendant. Subsequently the State dismissed the first case against Cuezze and Houston. The time elapsed from arraignment on the first charges until the dismissal of the second case was over 300 days. The Supreme Court distinguished the case from Fink, emphasizing that in Cuezze the second case was filed while the first case was still pending so that the defendants had remained continuously charged from the time of their first arraignment. In the opinion the court said: “[T]he purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial and the statute establishes certain maximum time limits within which a defendant must be brought to trial. Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute. As pointed out by the trial court, our prior cases relied upon by the State arose out of different factual situations or issues than those now before the court. It should also be noted that no attempt was made by the State to secure additional time in the first case to develop evidence as contemplated by K.S.A. 1978 Supp. 22-3402(3)(c).” 225 Kan. at 278. In the present case the trial court specifically rejected the State’s proposed finding of fact that the dismissal of the first case was a matter of necessity, although it was recognized at the time the motion for continuance was denied that technical problems had arisen in the case which were not the fault of either party. Under the holding in Cuezze, as there was no showing of necessity, the State here could not dismiss its first case, 81 CR 399, and refile the charges in case number 82 CR 111 to avoid the time limitations mandated by K.S.A. 22-3402. Support for this result is found in a recent opinion by the Court of Appeals which involves a situation factually similar to the instant case, also arising from Geary County. In State v. Hunt, 8 Kan. App. 2d 162, 651 P.2d 967 (1982), the defendant was initially arraigned on November 10, 1980. On March 31, 1981, the date trial was to .commence, the State moved to dismiss without prejudice because an essential witness was not available. Four days later the State refiled the charges. The defendant was arraigned for the second time on May 13, 1981. By the time the defendant was brought to trial on July 27,1981, 259 days had elapsed from the first arraignment on November 10, 1980. Finding the combined time in the two cases to be in excess of 180 days the Court of Appeals held: “We find Cuezze to be controlling and hold that defendant’s statutory right to a speedy trial on the aggravated assault charge was violated. Though there was a four-day gap between the dismissal of the first and the filing of the second information, the dismissal resulted from the State’s own motion and was not accompanied by a showing of necessity.” 8 Kan. App. 2d at 166. The holding in the case was succinctly stated in the syllabus: “When an information is dismissed by the State on its own motion after the defendant has been arraigned, and thereafter the State causes to be filed a new information charging the same offense, the State, when calculating the speedy trial time requirements of K.S.A. 22-3402, must include the time elapsed between arraignment and dismissal of the first prosecution together with the time elapsed between arraignment and trial of the second prosecution. “The State cannot avoid the statutory speedy trial time limits by dismissing an information and subsequently refiling the charges. The proper procedure for the State to follow is to obtain a continuance pursuant to K.S.A. 22-3402(3).” 8 Kan. App. 2d 162, Syl. ¶¶ 2, 3. In the case at bar the State did seek to obtain a continuance prior to dismissing the charges. The trial judge apparently did not believe a fourth continuance in the case was justified, in accord with his prior admonition to the parties concerning the necessity of bringing the defendant to trial without lengthy delay and to ensure that essential witnesses would be available for trial, serving them with compulsory process if necessary. Both doctors, whose attendance at trial was sought, had been supoenaed shortly after the continuance granted on January 14, 1982. However, upon learning these witnesses had conflicting plans to be out of the state on the date of trial, the State sought a continuance to avoid interrupting the witnesses’ plans. There is no indication in the record that the State made any attempt to enforce the subpoenas and require the witnesses to be present at trial; rather, it appears the prosecutor was willing to allow the' witnesses to disregard the subpoenas and, instead, seek a continuance. The grant or denial of a continuance in a criminal case lies largely in the sound discretion of the trial court. State v. Adamson, 197 Kan. 486, Syl. ¶ 1, 419 P.2d 860 (1966). Under the circumstances in this case we cannot say the trial judge abused his discretion in denying the State’s motion to continue. Upon dismissing the second case the trial court found that the dismissal of the first case was not a matter of necessity. The State claims that because the testimony of the two doctors was vital to the chain of forensic evidence the motion to dismiss was a matter of necessity. However, the witnesses were unavailable because, despite the trial court’s prior admonition, the State was apparently unwilling to enforce the subpoenas ordering the witnesses to appear at trial, in order to accommodate their personal schedules. We cannot agree that accommodation of witnesses is a matter of necessity. A criminal trial is a serious affair to which both federal and state constitutions guarantee due process of law and other rights, such as the right to confront witnesses and the right to speedy trial. A person who is to be a witness in a criminal trial may be personally inconvenienced by having to appear; however, such inconvenience is overshadowed by a defendant’s fundamental right to fair adjudication of his case in the administration of criminal justice. It is the primary responsibility of the parties to ensure the attendance of witnesses in court, and it is generally accepted that where the party seeking a continuance has failed to exercise due diligence to procure the attendance of necessary witnesses, the continuance may be properly denied. See State v. Daigle, 220 Kan. 639, 644, 556 P.2d 400 (1976), cert. denied 430 U.S. 983 (1977); State v. Hoggard, 146 Kan. 1, 3, 68 P.2d 1092 (1937); 22A C.J.S., Criminal Law §§ 486, 503b(1), 513(3); 3 Wharton’s Criminal Procedure § 428 (12th ed. 1975). We agree with the decision of the Court of Appeals in Hunt finding Cuezze to be controlling in this situation. Where, as here, the dismissal of criminal charges results from the State’s own motion and is not accompanied by a showing of necessity, and a new information is filed charging the same offense, we hold that when calculating the speedy trial time requirement of K.S.A. 22-3402 a court must include the time elapsed between arraignment and dismissal of the first prosecution together with the time elapsed between arraignment and trial of the second prosecution. A contrary rule would allow the State to dismiss and refile charges against a defendant ad infinitum which would contravene the purpose of K.S.A. 22-3402 and could lead to an abuse of legal process. The judgment of the lower court is affirmed.
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The opinion of the court was delivered by Herd, J.: These are consolidated actions on oil and gas leases to recover the difference between royalties paid pursuant to gas purchase contracts and royalties claimed based on market value. The relevant period is 1972 to 1982. The appeal is from the trial court’s order awarding the increased royalty payments requested in the amount of $272,391.68, prospective relief and prejudgment interest thereon. The essential facts are undisputed. The Medicine Lodge gas field was discovered in Barber County in 1927. In 1929, the producer, Barbara Oil Company, executed two gas purchase contracts. The first contract was between Barbara and Harris & Haun, Inc. In 1943 the contract was amended to substitute Zenith Gas Company for Harris & Haun as purchaser. This contract is for the sale of natural gas in interstate commerce and pertains to only one inconsequential lease. The second contract was entered into between Barbara and the McPherson Oil & Gas Development Company, a drilling company for the Kansas Power & Light Company (KP&L). KP&L later assumed the position of McPherson under the contract. This contract provides for the sale of natural gas intrastate. It covers most of the leases involved in this action. The market established under the two gas purchase contracts was slow to develop during the depression years of the 1930’s. Consequently, many of the oil and gas leases obtained by Barbara did not have production and were allowed to expire during the early years of the gas purchase contracts. The present leases are thus renewal leases and were executed after the two gas purchase contracts had been established. Each lease contains a gas royalty provision which reads for all purposes pertinent to this appeal as follows: “To pay lessor for gas from each well where gas only is found the equal one-eighth (Vfe) of the gross proceeds at the prevailing market rate . . . .” For many years royalties were paid to the lessors on the basis of the prices paid pursuant to the gas purchase contracts. Price increases were agreed upon by the parties through negotiation. In the late 1960’s and early 1970’s, however, the market value of natural gas began to exceed the purchase price provided for in the contracts. Price increases were prevented by long-term contracts and federal regulations. The lessors, who received royalties on the basis of the proceeds received by the producer, became dissatisfied with the arrangement. To increase the amount of royalties they received the lessors argued they should be paid on the basis of the higher market rate of the gas and not the lower purchase contract price. Toward this end lawsuits were filed in Barber County District Court during late 1977 and early 1978 alleging such underpayment of royalties. After much delay for discovery and negotiations, trial was held before the court in January of 1982. The trial court found for the lessors and awarded them increased royalty payments of $272,391.68, dating from July of 1972 to November of 1981. The court also awarded the lessors prejudgment interest. The oil producer, Kewanee Oil Company, successor to Barbara Oil Company, appealed. Although not a named party to this action, Gulf Oil Corporation has now acquired the Kewanee Oil Company. Further facts will be developed during a discussion of the issues. Appellant lists fifteen issues but the basic question is the propriety of the trial court’s interpretation of the phrase in the leases “prevailing market rate.” Since this case involves the correctness of the findings of fact and conclusions of law of the trial court, this court’s scope of review on appeal should first be noted. In such a case it is the appellate court’s function to determine if the findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. City of Council Grove v. Ossmann, 219 Kan. 120, 126, 546 P.2d 1399 (1976). The cause of this controversy can best be understood by a brief look at the history of the problem. It has long been recognized that natural gas, unlike oil, cannot be economically stored in tanks to be sold to the first customer who comes along. The sale on delivery of natural gas is accomplished through pipelines. Pipelines are expensive to construct and maintain. In light of these facts gas pipeline companies have historically refused to purchase gas from wells unless the seller signs a long-term pontract. To keep pace with rising prices the long-term contracts usually included escalation clauses to afford some relief from the lengthy commitment. In 1954, however, regulation of natural gas sold in interstate commerce was extended to the producer. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 98 L.Ed. 1035, 74 S.Ct. 794 (1954). Shortly thereafter the Federal Power Commission, in order to further its policy of keeping gas prices low, suspended operation of escalation clauses in interstate gas contracts. The resulting low prices caused a drop in gas reserve development and interstate commitments. Lack of exploration coupled with rising demand led to rapid price increases in the unregulated intrastate gas market. Substantial price disparities between interstate and intrastate markets and between gas purchase contracts executed at different times thus arose. See Lowe, Developments in Nonregulatory Oil & Gas Law, 32nd Annual Institute on Oil & Gas Law & Taxation 117, 145-46 (1981). In their attempts to increase the amount of royalties landowners began to rely on “market value” clauses similar to the ones in the leases relevant to this case. Their first major victory came in 1968 when the Texas Supreme Court rendered its decision in Texas Oil & Gas Corporation v. Vela, 429 S.W.2d 866 (Tex. 1968). The lease in question there provided the lessee was obligated to “ ‘pay to lessor, as royalty for gas from each well where gas only is found, while the same is being sold or used off of the premises, one-eighth of the market price at the wells of the amount so sold or used.’ ” p. 868. The lessee argued the market price of gas under the lease was the price provided for in the long-term purchase contract between it and the pipeline. In other words, the producer argued market price meant the amount realized under the contract and not the price of gas unencumbered by long-term purchase contracts or federal regulation. The Texas Supreme Court rejected this argument, stating: “They [the parties] might have agreed that the royalty on gas produced from a gas well would be a fractional part of the amount realized by the lessee from its sale. Instead of doing so, however, they stipulated in plain terms that the lessee would pay one-eighth of the market price at the well of all gas sold or used off the premises. This clearly means the prevailing market price at the time of the sale or use. The gas which was marketed under the long-term contracts in this case was not ‘being sold’ at the time the contracts were made but at the time of the delivery to the purchaser. [Citation omitted.] We agree with the Court of Civil Appeals, therefore, that the contract price for which the gas was sold by the lessee is not necessarily the market price within the meaning of the lease.” 429 S.W.2d at 871. During the 1970’s the disparity between contract prices under old gas contracts and the prevailing market prices increased. In 1977 the Kansas Supreme Court continued the trend set by the Texas court in Texas Oil & Gas Corp. v. Vela. Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 562 P.2d 1, cert. denied 434 U.S. 876 (1977), involved several different versions of oil and gas leases. One, however, was for all practical purposes identical to the leases involved in the case at bar. Although there were five separate opinions, a majority of the court clearly agreed that a royalty clause, similar to those here, which calls for gas royalties to be calculated on the basis of market value or market price at the well, refers to value or price at the current rate prevailing when the gas is delivered rather than the proceeds or amount realized under a gas purchase contract. The court, however, did not stop there. Aside from holding the market value of gas could be higher than the amount of proceeds under the purchase contract, the court stated market value or price could exceed the amount fixed by federal regulations under the Natural Gas Act of 1938 (15 U.S.C. § 717 et seq.), holding: “[T]he existence of federal regulation over the rates which a gas producer may receive is no obstacle to the fixing of a higher rate as the ‘market value’ of the gas it sells for the purpose of computing royalties.” 221 Kan. at 457. Pursuant to Lightcap, then, it was proper for the trial court to set a market value for the purpose of determining the amount of royalties owed different from the proceeds realized under the gas purchase contracts. The question is whether the market values set by the trial court were supported by the evidence. To make that determination it is necessary to examine the trial court’s decision in more detail. The decision below followed closely the testimony of R. Douglas Myers, a consulting petroleum engineer and expert witness for the lessors. Myers reached his determination of market value by determining, at yearly intervals from July 1972 through November 1978, the highest and best price paid for natural gas in the Medicine Lodge area. The results were as follows: Fair Market Production Period Value ($/mcf) Control 7-72 thru 1-73 0.1665 KP&L-Medicine Lodge Field Fair Market Production Period Value ($/mcf) Control 2-73 thru 11-73 0.1850 ONG-Medicine Lodge Field 12-73 thru 4-74 0.5800 KP&L-Patton-Holmes Wells 5-74 thru 4-75 0.8800 KGS-Beren Corp.-Ives Well 5-75 thru 4-76 0.9130 KGS-Beren Corp.-Ives Well 5-76 thru 4-77 2.0350 KGS-Beren Corp.-Ives Well 5-77 thru 4-78 2.0680 KGS-Beren Corp.-Ives Well 5-78 thru 11-78 2.1010 KGS-Beren Corp.-Ives Well It should be noted from May 1974 through November 1978 Myers and the trial court used the price obtained from the “KGS-Beren Corp.-Ives Well.” This refers to a gas purchase contract between Okmar Oil Company and the Kansas Gas Supply Corporation. The leases involved in this contract are located approximately six miles east of the Medicine Lodge gas field. The Natural Gas Policy Act of 1978 (NGPA) (15 U.S.C. § 3301 et seq. [Supp. V 1981]) became effective December 1, 1978. Under the Act intrastate gas, for the first time, became subject to federal price controls. Since, for the time being, both intrastate and interstate gas was subject to regulation, Mr. Myers used a regulated price as his market value beginning December 1,1978. As he testified at trial Myers believed the highest price being paid for gas in Kansas after enactment of the NGPA was the NGPA section 108 “stripper well” price. 15 U.S.C. § 3318. Basically, a stripper gas well is one which produces 60,000 cubic feet of gas a day or less. Myers also adjusted for the BTU content of the Medicine Lodge field by taking 1.1 times the section 108 price. The “market value” prices determined by Myers after the passage of the NGPA ranged from $2.45 per mcf in December of 1978 to $3.43 per mcf in October of 1981. Before proceeding to an analysis of the trial court’s order it should be noted no mention was made of any distinction between the interstate gas contract (Zenith) and the intrastate contract (KP&L). There are two reasons for this. First, only one lease in this case involves the Zenith contract. That lease ceased to be economically commercial and was allowed to terminate in May of 1978. It involves increased royalties of only $1200. More important, however, is the principle of Lightcap that market value is the issue, irrespective of whether the sale is interstate or intrastate. See 3A Summers, The Law of Oil & Gas § 589 (1983 Supp.). Appellant first argues the royalty owners signed division orders stipulating their royalty interest was Vs of the price under the gas purchase contracts, thereby altering the lease contracts. A division order is actually part of the gas purchase contract between the producer and the pipeline. It directs the purchaser to make payment for the value of the products taken in certain proportions which are set out in the order itself. Williams & Meyers, Manual of Oil & Gas Terms, pp. 124-25 (3rd ed. 1971). Here the division orders directed the purchaser to pay to the lessors Vs of the price paid pursuant to the gas purchase contract. They were signed by the lessors. This issue was resolved in Maddox v. Gulf Oil Corporation, 222 Kan. 733, Syl. ¶¶ 2 and 3, 567 P.2d 1326 (1977), cert. denied 434 U.S. 1065 (1978). The court held: “A division order is an instrument required by the purchaser of oil or gas in order that it may have a record showing to whom and in what proportions the purchase price is to be paid. Its execution is procured primarily to protect the purchaser in the matter of payment for the oil and gas, and may be considered a contract between the sellers on the one hand and the purchaser on the other.” “Where a division order prepared by the lessee of an oil and gas lease for the lessor’s signature unilaterally attempts to amend the oil and gas lease to deprive the royalty owner of interest on royalties held in suspense, to which the royalty owner is otherwise entitled under the leasing contract, and the lessor signs the division order without consideration from the lessee, the provision waiving interest is null and void.” See also Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P.2d 1039 (1957). We hold the lessors’ signatures on the division orders did not alter the leases. Appellant next argues ratification, estoppel, waiver and acquiescence on the part of the appellees by their having received and kept less than was owed under the terms of the leases. This issue has been resolved in the royalty owners’ favor on numerous occasions. In Foster v. Atlantic Refining Company, 329 F.2d 485, 490 (5th Cir. 1964), the court stated: “By keeping less than was due them [the royalty owners], and something to which they were entitled in any event, the Fosters have not ratified the act of Atlantic in selling their royalty gas for less than the prevailing market price.” In Texas Oil & Gas Corporation v. Vela, 429 S.W.2d at 876, the Texas Supreme Court held: “The operators acquired their interest in the leased premises with actual or constructive knowledge of the provisions of the contracts and the lease. It also is clear that the gas purchase contracts were made in good faith, and as previously indicated the royalty owners have never agreed that royalty should be paid on the basis of the price stipulated therein. In our opinion they are not precluded from insisting upon their rights under the lease by the fact that they or their predecessors in title were parties to and accepted the benefits of the contracts.” We agree and hold the landowners are not barred by ratification, estoppel, waiver or acquiescence. Let us now turn to a discussion of market value. As previously noted, the trial court made two separate determinations of market value. The first was the pre-December 1978 value. It was based on the highest price paid for comparable natural gas in Barber County at that time. The Okmar contract was the comparable sale used. The second determination pertained to the period after 1978 when intrastate gas became subject to federal regulation. Since there were no unregulated sales at the time that determination was based on the highest regulated price for comparable natural gas in Barber County. The court found the NGPA section 108 price to be the market value of the gas during the second period. This court has held market value of gas is the “price which would be paid by a willing buyer to a willing seller in a free market.” Lightcap v. Mobil Oil Corporation, 221 Kan. 448, Syl. ¶ 4. Such price may be proven by any competent evidence. Here the trial court relied on evidence of “comparable sales” as the basis of its decision. “Comparable sales of gas are those comparable in time, quality, quantity, and availability of marketing outlets.” Exxon Corp. v. Middleton, 613 S.W.2d 240, 246 (Tex. 1981). See also Texas Oil & Gas Corporation v. Vela, 429 S.W.2d at 872. In Lippert v. Angle, 211 Kan. 695, 702, 508 P.2d 920 (1973), we commented on comparable sales, stating, “To be comparable the sales must be similar or under substantially similar conditions.” Comparability is a question of fact which will most often be proven by expert testimony. Weymouth v. Colorado Interstate Gas Company, 367 F.2d 84, 92-93 (5th Cir. 1966); Exxon Corp. v. Middleton, 613 S.W.2d at 249, Thus, as we noted at the outset, our task is to determine whether the trial court’s findings regarding market value and comparable sales are supported by substantial, competent evidence. The trial court’s method in making both determinations of market value was essentially the same. Based on the testimony of Mr. Myers, it simply used the highest price paid for comparable gas in the area both before and after federal regulation of interstate gas. As noted above those prices were obtained from the Okmar contract prior to 1978 and the NGPA section 108 price after 1978. In both instances Myers testified the product for sale was comparable as to physical quality and access to market. Appellant argues the trial court erred in holding the Okmar contract and the NGPA section 108 sales were comparable. It claims instead the parties intended at the time the leases were executed that the gas purchase contract price was the market price. Obviously our prior discussion in Lightcap is applicable here. In that case we held: “Where a lease calls for royalties based on the ‘market value’ of the gas sold, in the absence of proof of a contrary intent that value is the price which would be paid by a willing buyer to a willing seller in a free market.” 221 Kan. 448, Syl. ¶ 4. Also relevant here is the rule that an oil and gas lease should be construed strictly against the lessee-producer and in favor of the lessor-royalty owner. Lightcap, 221 Kan. at 458; Gilmore v. Superior Oil Co., 192 Kan. 388, 391, 388 P.2d 602 (1964). This is so because the lease is provided by the lessee who dictates its terms. The lessee thus has the opportunity to protect itself through specific terminology in the lease. In the absence of any evidence of contrary intent of the parties, we conclude the lessors are entitled to royalties based on the market value of gas at the time of production. With regard to the trial court’s use of the Okmar contract and the NGPA section 108 price as admissible evidence of market value, we have no hesitancy in upholding these actions. Pursuant to K.S.A. 60-407(/) all relevant evidence is admissible except as otherwise provided by statute or constitution, Both standards used by the trial court — the Okmar contract and the NGPA section 108 price — are relevant because of their comparability, As noted above the physical quality and access to market of the gas were similar. Further, there were adequate quantities of each for long-term contracts. Although the use of the NGPA section 108 price may be confusing it is used merely as evidence the gas is worth more than the section 105 price placed on it by the FERC. Just as they are not bound by the gas purchase price, royalty owners with a market value lease are not limited to the regulated price. Lightcap, 221 Kan. at 457. This issue is without merit. Appellant next argues the trial court erred in granting the royalty owners prospective relief based on the section 108 price for the duration of regulation and thereafter the highest price paid for natural gas in Barber County. Appellant maintains that part of the court order unlawfully amends the lease. We agree. The Okmar Contract and the section 108 price are the evidence of market price in this case. They are factual in nature and not controlling on future cases because the market might fluctuate. However, the principles of law enunciated herein are precedential and thereby controlling. Finally, we must consider the issue of prejudgment interest. The trial court awarded the lessors prejudgment interest on the increased gas royalties at the rate of 6% per annum from the month the original royalty payments were made up to July 1, 1980. After that date and until the date of judgment, February 11, 1982, the rate was 10% per annum. Appellants challenge the propriety of this determination. It is the “general rule that an ‘unliquidated’ claim for damages does not draw interest until liquidated — usually by judgment.” Lightcap v. Mobil Oil Corporation, 221 Kan. at 466; Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P.2d 773 (1954). Where a party retains and makes actual use of money belonging to another, however, equitable principles require it to pay interest on the money so retained and used. Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, Syl. ¶ 20, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978); Lightcap, 221 Kan. 448, Syl. ¶ 12. Lightcap dealt with á situation which required application of both the general rule and the exception noted above. In applying the general rule to the trial court’s decision which had rejected prejudgment interest for increased royalties awarded based on the excess of “market value” over the FPC approved rate, the Supreme Court stated: “As to the amounts which were determined to be due only when judgment was entered below, we believe the general rule as to unliquidated claims should apply. Apart from the question of liability (one of‘initial impression’ as noted by the trial court), the amount due if there was liability was not determined until judgment. The ‘market value’ of the gas sold was subject to proof at trial by any competent evidence. [Citation omitted.] Here plaintiffs chose to rely on the arbitrated value as establishing market value, and that figure was accepted by the trial court in the absence of any other evidence on the issue. Such a result, however, could not have been foretold before this litigation was well under way, and until that time the total claim was unliquidated.” 221 Kan. at 467. The same is true here. The plaintiffs’ claims were unliquidated until the trial court made its determination of market value. We hold the royalty owners were not entitled to prejudgment interest. The judgment of the trial court is affirmed in part and reversed in part.
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Per Curiam: Two separate disciplinary complaints filed pursuant to Supreme Court Rule 212 (230 Kan. civ) against William V. Dixon, Jr., an attorney admitted to practice law in the State of Kansas, have been consolidated in this original action. Docket #W2165 filed with the Kansas Board for Discipline of Attorneys was a complaint alleging that respondent had ne glected legal matters entrusted to him in connection with the probate of the estates of Grady Sebastian and Beulah Sebastian. This matter will be referred to as the Sebastian complaint. Docket #W2418 was filed by Arno Windscheffel, Disciplinary Administrator, and alleged in twenty-two separate counts that the respondent neglected legal matters entrusted to him in twenty-two probate proceedings filed in Greeley County. This matter will be referred to as the Windscheffel complaint. The Sebastian complaint was heard by a panel of the Kansas Board for Discipline of Attorneys on August 20, 1981, and the hearing panel found that there was clear and convincing evidence that respondent had neglected legal matters entrusted to him in both the Grady Sebastian and Beulah Sebastian estates. The Windscheffel complaint was heard on November 24, 1981, and the hearing panel found that there was clear and convincing evidence that respondent had neglected legal matters entrusted to him in twelve of the twenty-two counts of the complaint. Respondent filed exceptions to both panel reports. We will first consider the Sebastian complaint. Grady Sebastian died testate January 8, 1963. His will, which left everything to his widow Beulah, was admitted to probate January 16, 1963, at which time Cecil, a son, was appointed executor. Respondent was counsel for Beulah and Cecil and prepared and published a notice of appointment of executor. An affidavit of publication was filed. Several creditors filed claims but nothing else was done until October, 1979. No inventory was filed although it was established that the decedent and Beulah owned a residence in joint tenancy and he owned an interest in commercial property known as the Southside service station, motel and restaurant. In June of 1968, Cecil, as executor, entered into a contract for the sale of the Southside property. It was to be sold on contract with an executor’s deed, abstract of title and other documents to be deposited with the First National Bank of Tribune as escrow agent. The sale was consummated without any petition to or approval of the probate court. The deed, abstract and other escrow papers were never delivered to the escrow agent. The purchasers made regular payments to the Bank, as escrow agent, and those payments were placed in a non-interest bearing checking account. In February of 1974, Beulah entered into a contract for sale of the residential property. This sale was also handled by respondent and again the deed from Beulah, the abstract of title and other contract documents were to be escrowed with the First National Bank. They were not. The purchasers made regular payments which were deposited in a non-interest bearing checking account. Beulah Sebastian died testate April 26, 1976. Her will which left everything to Cecil was admitted to probate on May 19, 1976, at which time Cecil was appointed executor and letters testamentary were issued to him. Respondent, as attorney for Cecil, did nothing further until February, 1979. No inventory was ever filed. Cecil Sebastian died intestate October 29, 1976, survived by his widow and four children. The widow was appointed administratrix of Cecil’s estate and retained an attorney from.Goodland to handle the probate proceedings. Numerous attempts were made to get respondent to close the Grady and Beulah Sebastian estates but they were unsuccessful, although respondent made repeated promises that they would be closed. Finally in July of 1978, a petition for appointment of Daryl Sebastian as administrator d.b.n. of Beulah’s estate was prepared. Daryl signed the petition July 14, 1978, but respondent did not file it until February, 1979. -.In May of 1978, the purchasers of the residence property desired to refinance the purchase contract they had entered into with Beulah. The lending company then discovered there was no deed, abstract or other escrow documents at the bank. In February, 1979, the purchasers retained counsel to get matters straightened out. He wrote respondent by letters dated February 2, May 9, August 20, October 8 and October 19, 1979, and made numerous'verbal requests during the period. Respondent made numerous promises and on October 11, 1979, filed a petition to have Daryl Sebastian appointed administrator c.t.a. of Grady’s estate. Eventually, deeds from both estates were obtained. At the time of the panel hearings there was $9,733.07 in the residence escrow account and $19,827.03 in the Southside property account. Neither was drawing interest. Despite numerous requests by Daryl, other heirs and counsel for Cecil’s estate, no progress could be made toward closing the Grady and Beulah Sebastian estates. Ultimately a complaint was filed with the Disciplinary Administrator and at the time of the hearing of the complaint in August of 1981, respondent had done nothing further toward closing the estates. In the meantime, Cecil Sebastian’s estate could not be completed due to the failure to close his parents’ estates. The panel found that respondent had neglected these legal matters. We now turn to the Windscheffel complaint filed by the Disciplinary Administrator. The office of the Disciplinary Administrator, having had earlier complaints similar to the Sebastian complaint, undertook an investigation of all pending probate matters in Greeley County in which respondent was either the fiduciary or the attorney for the fiduciary. That investigation disclosed twenty-two pending probate cases in which the Disciplinary Administrator was of the opinion that the respondent had neglected legal matters entrusted to him. He then filed a complaint setting forth twenty-two separate counts of alleged neglect. All involved proceedings which appeared to have been handled in a similar manner as the Sebastian estates. The hearing panel found the evidence was insufficient to establish the charged misconduct as to Counts 1, 2, 3, 5, 6,8, 11,16, 18 and 21. The hearing panel found neglect in the remaining twelve counts. Due to the voluminous number of counts and their similarity we will set forth the facts as found by the panel only briefly. Counts 4, 7 and 15 are interrelated in a manner similar to the Sebastian estates. Count 4 involves the estate of Roy Darland, who died testate January 30, 1964. Respondent was appointed executor on February 21, 1964. Nothing further has been done. Real estate was involved. Count 7 relates to the estate of Charles Darland, who died testate July 31,1966. His brother Russell was appointed administrator c.t.a. on August 11, 1966. Nothing further has been done. Charles and Russell were sons of Roy. Real estate was involved. Russell Darland, Count 15, died intestate April 18, 1974. An administrator was appointed April 23, 1974; no tax returns, inventory or appraisal were ever filed although a petition for final settlement was filed April 9, 1981. The petition was never heard. Attempts by heirs to sell real estate have been delayed pending closing of the three Darland estates. Lon A. Young, Count 9, died testate January 26, 1969, and his will was admitted to probate February 13, 1969. Estate and inheritance taxes were paid in 1970 and 1971. No accounting, petition for final settlement or other proceedings were shown as of the time of the panel hearing. We are now advised the estate was closed in May of 1982. George E. Copeland, Count 10, died testate February 12,1974, and his will was admitted to probate March 4, 1974. Respondent was appointed as a co-executor. An inventory was filed and taxes were paid in 1975 and 1976. Nothing further was done although we are now advised the estate was closed in June of 1982. Count 12 involves the estate and testamentary trust of Mary J. Simpson. Respondent was appointed testamentary trustee in August of 1971. Myrtle Potts, a sister of the decedent, was a lifetime beneficiary of the trust with the remainder to go to the Greeley County Hospital on her death. Respondent filed an initial accounting as of December 31, 1971, which reflected a trust balance of $18,069.59. There have been no further accountings. Myrtle Potts died in 1976, and after payment of her funeral expenses, $7,115.40 remained in the trust. That money has been kept in a non-interest bearing checking account and has not been distributed to the hospital. Jesse Bartholomew, Count 13, died April 17, 1971. Respondent was appointed administrator October 31,1973. A petition to determine descent was filed by respondent in 1976. Nothing further has been done in either proceeding. Count 14 involves the estate of Ernest D. Kysar, who died testate October 25, 1978. His will was admitted to probate December 15, 1978; an inventory filed May 28, 1980, reflected an estate value of $266,126.16. A petition for final settlement was filed October 26, 1980. The estate has not been closed. Robert W. Vogt, Count 17, died testate March 5, 1976, and his will was admitted March 12, 1976, and his widow appointed executrix. The widow died in 1981 and we are now advised the estate of Robert was closed in June of 1982. Lila B. Curtis, Count 19, died March 24, 1978, and an administrator was appointed October 16, 1978. On November 4,1980, a petition for final settlement was filed but never heard. R. W. Holland, Count 20, died testate May 19, 1976. The will was admitted and executor appointed May 22, 1976. No inventory was ever filed or tax clearance shown although a petition for final settlement was filed in June of 1981. It has never been heard. B. R. Austin, Count 22, died intestate December 19, 1961, and his widow was appointed administratrix on February 19, 1962. An inventory was filed and real estate sold at private sale which was never confirmed. Nothing further has been done. The record clearly supports the findings of the disciplinary hearing panel that respondent neglected legal matters entrusted to him in each of the foregoing instances. DR 6-101(A)(3) (230 Kan. cxxii) provides that a lawyer shall not “[njeglect a legal matter entrusted to him.” This standard has been clarified by case law and more particularly by ABA Comm, on Ethics and Professional Responsibility, Informal Op. 1273, (1973), which defines neglect as follows: “Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect usually involves more than a single act or omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error in judgment made in good faith.” The misconduct in the instant case does not involve an isolated instance or an inadvertent error, nor does it involve an erroneous judgment made in good faith. Rather it involves a consistent and repeated practice of undertaking a responsibility to clients, and then totally ignoring that responsibility. The extent of the neglect is extreme and has reached proportions never before considered by this court. The courts have held that an attorney’s pattern of conduct in the case of a single client can amount to a violation of DR 6-101(A)(3). State Bar v. Grubbs, 396 Mich. 275, 240 N.W.2d 233 (1976); Matter of Kennedy, 97 Wash. 2d 719, 649 P.2d 110 (1982). Similarly this court has held that the consistent practice of accepting cases and neglecting to perform or complete the legal services contemplated is a violation of DR 6-.101(A)(3). State v. Alvey, 215 Kan. 460, 524 P.2d 747 (1974). There can be no doubt as to respondent’s violations of numerous provisions of the Code of Professional Responsibility as adopted by this court. S. Ct. Rule 225 (230 Kan. cxi). The disciplinary hearing panels in this case recommended indefinite suspension in each instance. Recommendations of the Board for Discipline of Attorneys are advisory only and are not binding upon this court. S. Ct. Rule 212(f) (230 Kan. cv). Misconduct by the respondent has been clearly established and it is the duty of this court to determine the appropriate discipline. Determination of the discipline to be imposed, though always difficult, is unusually troublesome in the present case. Respondent does not stand charged with any form of dishonesty, self-dealing, or other reprehensible conduct involving moral turpitude and performed for his own enrichment. Rather he stands charged with procrastination, a human frailty we all share in varying degrees. The hearings on these complaints were held in August and November of 1981, and the panel reports recommending indefinite suspension were not filed with this court until November of 1982. Respondent, in his brief and in his argument before this court, suggests that private censure be imposed, along with some period of supervised probation during which he be allowed to complete the estates in question and make progress reports to the court. Respondent made a similar suggestion at the time of the evidentiary hearings over a year and one-half ago. It now appears that of the twelve cases contained in the Windscheffel complaint, three have been closed and there has been no additional progress in the other nine. The cases considered by the panel span more than twenty years and many still remain unresolved. In Mendicino v. Magagna, 572 P.2d 21 (Wyo. 1977), the court considered a case quite similar to ours. The court stated: “The present status of these estates would not be particularly shocking to this court were it not for the fact that most of them have been accumulating dust in the files of the courthouse as a result of procrastination and dilatory conduct for a period of from six to twenty-eight years. Although the respondent has sought to give an appearance of making an effort in recent years to finally dispose of these important pieces of his clients’ business and has, in fact, disposed of approximately twenty-two estates since 1975, we are still unable to sanction or tolerate either his refusal or his inability to finalize his task. It is true, and we want it made clear, that there have been no charges of dishonesty, misrepresentation of fact, or sinister motive brought against the respondent in connection with these estates. We note, also, that there have been no allegations that any client actually suffered a pecuniary loss as a result of the respondent’s conduct. For the most part, the assets of these estates have been paid over to the beneficiaries. Nevertheless, we cannot tolerate this kind of negligent disregard of the public’s business which has been entrusted to a member of this Bar. A member of the legal profession is never justified in delaying his or his client’s business by reason of laziness, procrastination, or a cavalier approach to the client’s interests. See, In re Mayne’s Estate, Wyo., 345 P.2d 790, 795. “It is for all who are members of the legal profession in Wyoming and elsewhere to scrupulously and diligently discharge our obligations to the clients who entrust us with their business. Lawyers and judges everywhere are, themselves, on public trial in this day and age. The entire judicial branch of the government is suspect — our diligence is being questioned — our integrity is at issue — the very system of attorney-client relationship which has its genesis in trust, is now fraught with public misgiving.” p. 23. Respondent’s repeated failure to assume his responsibilities as a lawyer is demonstrated by his continued failure or refusal to take action to complete the various probate proceedings when he has had ample opportunity to do so. In spite of repeated warnings fropr this court through the office of the Disciplinary Administrator, respondent continues to neglect his legal commitments and duties- The record in this case adequately reflects respondent’s inability or refusal to accept and perform the obligations of the legal profession. Despite the recommendations of the hearing panels that respondent be disciplined by indefinite suspension, a majority of the members of this court are of the opinion respondent should be disbarred. Continued neglect of a client’s legal matters in violation of the Code of Professional Responsibility cannot and will not be tolerated. It Is Therefore Ordered and Adjudged that William V. Dixon, Jr., be and he is hereby disbarred and the Clerk of the Supreme Court is directed to strike the name of William V. Dixon, Jr., from the rolls of attorneys admitted to practice law in the State of Kansas. It Is Further Ordered that William V. Dixon, Jr., pay the costs of this action and that he forthwith comply with Supreme Court Rule 218 (230 Kan. cvii). Herd, J., not participating.
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The opinion of the court was delivered by McFarland, J.: Plaintiff Kurt K. Rajala was injured when he was intentionally struck by a fellow employee, defendant Phillip E. Doresky. The trial court entered summary judgment in favor of defendant on the basis plaintiff s exclusive remedy was under the Workmen’s Compensation Act (K.S.A. 44-501 et seq.). Plaintiff appeals therefrom. Before proceeding further the following should be noted. The facts are not in dispute. The parties were both employees of the Welcome Home Restaurant in Johnson County on August 10, 1981, and were on the job when defendant attacked plaintiff. Following the incident, plaintiff made claim for and received workers’ compensation benefits. Thereafter plaintiff filed this personal injury action against defendant. Plaintiff concedes this action is barred by K.S.A. 44-501 and K.S.A. 44-504(a), reproduced in pertinent part as follows: 44-501. “Except as provided in the workmen’s compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable thereunder 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.) 44-504(a). “(a) When the injury or death for which compensation is payable under the workmen’s compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the workmen’s compensation act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person.” (Emphasis supplied.) The two issues on appeal relate solely to the validity of the two statutes. Issue No. 1. ARE K.S.A. 44-501 AND 44-504(o), WHICH PRECLUDE CIVIL DAMAGE ACTIONS BY AN EMPLOYEE AGAINST A FELLOW EMPLOYEE FOR INJURIES SUSTAINED DURING THE COURSE OF EMPLOYMENT, VIOLATIVE OF THE KANSAS CONST. BILL OF RIGHTS, § 18? Section 18 of the Kansas Bill of Rights states: “Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” In Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, aff'd on rehearing 93 Kan. 257, 144 Pac. 249 (1914), the Workmen’s Compensation Act was challenged on the ground the exclusivity of the remedy provisions were violative of the Kansas Const. Bill of Rights, § 18. As noted in Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 429, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978), the Supreme Court in Shade upheld the act on the basis workers’ compensation coverage was optional. The Kansas Court of Appeals in Boyd held: “K.S.A. 44-501, providing that no employer or other employee of such employer shall be liable for any injury for which compensation is recoverable under the Workmen’s Compensation Act, is not unconstitutional because coverage is compulsory.” Syl. ¶ 4. It is true immunity of a fellow employee was not at issue in either Shade or Boyd. In fact, fellow employee immunity did not become a part of the Workmen’s Compensation Act until 1967. However, we do not view this as significant. The Workmen’s Compensation Act removes certain common law remedies for injured employees but provides a statutory substitute therefor. This is basically a matter of public policy which will be discussed in the next issue. We conclude K.S.A. 44-501 and 44-504(a), which preclude a person from maintaining a civil damage action against a fellow employee for any injury for which compensation is recoverable under the Workmen’s Compensation Act (K.S.A. 44-501 et seq.), are not violative of the Kansas Const. Bill of Rights, § 18. Issue No. 2. DOES THE FELLOW EMPLOYEE IMMUNITY OF K.S.A. 44-501 and 44-504(a) VIOLATE PUBLIC- POLICY? In Tully v. Estate of Gardner, 196 Kan. 137, 409 P.2d 782 (1966), this court held the heirs of a deceased employee could maintain a wrongful death action against a fellow employee under K.S.A. 44-504 as it then existed, reproduced in pertinent part as follows: “‘When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person’” 196 Kan. at 139. (Emphasis in original.) In so holding, this court commented: “Gardner’s attorneys assert that if suits of this character are permitted against co-employees, certain consequences will result which they brand as being socially undesirable. The matters to which they make reference embrace,questions of public policy which properly should be addressed to the legislative branch of government for its consideration.” 196 Kan. at 140. At the next regular session of the legislature (1967), this issue was addressed and K.S.A. 44-501 and 44-504 were amended to extend immunity from civil liability to fellow employees. We note the 1967 modifications of the Workmen’s Compensation Act followed considerable compromise by employers, insurance carriers and employee groups before they unanimously supported the new law. See House J. 1967, p. 360, comment of Rep. Payne Ratner, Jr. Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Brinkmeyer v. City of Wichita, 223 Kan. 393, 573 P.2d 1044 (1978). Creditable arguments may be made on each side of the question of whether a fellow employee should be immunized from civil liability for intentional torts. The Kansas Legislature has determined the better public policy is to preclude a person from maintaining a civil damage action against a fellow employee for any injury for which com pensation is recoverable under the Workmen’s Compensation Act (K.S.A. 44-501 et seq). It is not the prerogative of this court to modify such legislative determination by judicially carving out an exception for intentional torts. The judgment is affirmed.
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WHEREAS, on the 28th day of February, 1983, Bruce Theodore Hurd entered a voluntary plea of nolo contendere to one charge of theft of $100.00 or more in violation of K.S.A. 21-3701, such violation being a class D felony, and WHEREAS, the District Court of Shawnee County, Kansas, accepted the plea and found the defendant guilty, and WHEREAS, on the 28th day of March, 1983, the court sentenced Bruce Theodore Hurd pursuant to K.S.A. 1982 Supp. 21-4501(d), and WHEREAS, on the 6th day of April, 1983, pursuant to Rule 217, 230 Kan. cvii, Bruce Theodore Hurd voluntarily surrendered his certificate to practice law and the court, after due consideration, finds that such certificate should be accepted, NOW, THEREFORE, IT IS ORDERED AND DECREED that the privilege of Bruce Theodore Hurd to practice law in the State of Kansas is hereby revoked and the Clerk of the Supreme Court is directed to strike the name of Bruce Theodore Hurd from the roll of attorneys. IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports and that the Clerk shall comply with the requirements of Rule 217.
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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 finding Vernon D. Reves (defendant-appellant) guilty of driving under the influence of alcohol or drugs. K.S.A. 8-1567. The appellant contends 1982 Senate Bill No. 699 (L. 1982, ch. 144), which amended K.S.A. 1981 Supp. 8-1567 governing alcohol or drug-related traffic offenses and penalties therefor, violates art. 2, § 16, of the Kansas Constitution and is invalid. This provision of the constitution, as amended in 1974, reads in part: “No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes. The subject of each bill shall be expressed in its title. . . . The provisions of this section shall be liberally construed to effectuate the acts of the legislature.” The appellant contends the act contains more than one subject and points to the title of the act as evidence thereof. The title reads: “An Act relating to certain alcohol and drug-related traffic offenses; relating to penalties for certain prohibited acts; providing for the establishment of an alcohol and drug safety action program; amending K.S.A. 8-255, 22-2908, 22-2910,22-3609a and 22-3610 and K.S.A. 22-2909 and 22-2911, as amended by 1982 House Bill No. 3036, and K.S.A. 22-3609, as amended by 1982 Senate Bill No. 822 and K.S.A. 1981 Supp. 8-285, 8-1001, 8-1005 and 8-1567 and repealing the existing sections.” The act itself contains 23 sections and is quite lengthy. It is necessary to discuss the various provisions of the act in order to determine whether or not more than one subject is addressed therein. The act amended several existing statutes and enacted eight new statutes. Included in the amendments to existing statutes were numerous minor changes in wording which, with the exceptions noted below, are unimportant to the issue and need not be reviewed in detail. Section 1 amended K.S.A. 8-255, governing procedures and grounds for suspension of drivers’ licenses,. to provide that “[e]xcept as provided by K.S.A. 1981 Supp. 8-1001 and amendments thereto, the hearing [on a license suspension or revocation] shall be held in the licensee’s county of residence or county adjacent thereto '. . . .” K.S.A. 1981 Supp. 8-1001, amended by Section 3, establishes a motor vehicle operator’s implied consent to submit to a blood alcohol test and the procedure for such test. The amended portion reads: “(c) If the person so arrested refuses a request to submit to a test of breath or blood, it shall not be given and the person’s refusal to submit to the test shall be admissible in evidence against the person at any trial for driving under the influence of alcohol. The arresting officer shall make a report verified on oath to the division of vehicles of the refusal, stating that prior to the arrest the officer had reasonable grounds to believe that the person was driving under the influence of alcohol. Upon receipt of the report, the division immediately shall notify the person of the right to be heard on the issue of reasonableness of the failure to submit to the test. If, within 20 days after such notice is mailed, the person makes a written request for a hearing, the division shall hold a hearing in the county where the alleged violation occurred, or in a county adjacent thereto, within the time and in the manner prescribed by K.S.A. 8-255 and amendments thereto. Notice of the time, date and place of hearing shall be given to the person by restricted mail, as defined by K.S.A. 60-103. If a hearing is not requested or if after the hearing, the division finds that the refusal was not reasonable, and after due consideration of the record of motor vehicle offenses of the person, the division shall suspend the person’s license or permit to drive or nonresident operating privilege for a period of not less than 120 days and not more than one year.” Section 2 amended K.S.A. 1981 Supp. 8-285 which defines the term “habitual violator” as a person who has been convicted in the past five years of three or more of the offenses listed in the statute. It was amended to include: “For the purpose of part (a)(2) of this section [driving under the influence of alcohol or drugs] in addition to the definition of‘conviction’ otherwise provided by law, conviction includes, but is not limited to, a diversion agreement entered into in lieu of further criminal px'oceedings, or a plea of nolo contendere, on a complaint, indictment, information, citation or notice to appear alleging a violation of K.S.A. 1981 Supp. 8-1567 and amendments thereto or an ordinance of a city in this state or law of another state, which ordinance or law prohibits the acts prohibited by that statute.” Section 4, amending K.S.A. 1981 Supp. 8-1005, concerns the admission of and weight to be given evidence of a driver’s blood alcohol content in a prosecution for driving under the influence of alcohol or drugs. Section 5 extensively revised K.S.A. 1981 Supp. 8-1567, prohibiting driving under the influence of alcohol or drugs and penalties therefor. In addition to fines and imprisonment, the penalties include requiring the offender to enroll in and to successfully complete an alcohol and drug safety action program or a treatment program, as provided in Section 10 (now K.S.A. 8-1008). Depending on the number of previous convictions of this offense, the driver will also have his license restricted, suspended or revoked. Subsection (h) provides that the court report every conviction, plea of guilty, and diversion agreement entered into in lieu of further prosecution to the division of motor vehicles. Subsection (i) reads: “For the purpose of determining whether a conviction is a first, second or third or subsequent conviction for the purpose of sentencing under this section, the term ‘conviction’ includes pleading guilty to a violation of this section, pleading nolo contendere to a violation of this section, being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section. For such purpose ‘conviction’ also includes pleading guilty to an ordinance which prohibits the acts that this section prohibits, being convicted of such an ordinance or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such an ordinance. For the purpose of this section, only convictions occurring in the next preceding five years shall be taken into account.” Subsection (n) allows cities to enact ordinances prohibiting driving under the influence of alcohol or drugs, but such ordinances may not provide penalties which exceed or are less than the penalties prescribed by the statute. Sections 6, 7, 8, 9, and 11 deal with diversion agreements entered into in lieu of prosecution by a person charged with violation of 8-1567. Section 6 amended K.S.A. 22-2908, which sets forth the factors to be considered by the county or district attorney in determining whether a defendant should be offered a diversion agreement. The amendment added the following provision: “(2) A county or district attorney shall not enter into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 1981 Supp. 8-1567 and amendments thereto if the defendant has previously participated in diversion upon a complaint alleging a violation of that statute or an ordinance of a city in this state which prohibits the acts prohibited by that statute or has previously been convicted of or plead nolo contendere to a violation of that statute or an ordinance of a city in this state which prohibits the acts prohibited by that statute.” K.S.A. 22-2909, amended by Section 7, sets forth provisions which are to be included in a diversion agreement. The statute was amended to require that a stipulation be contained in the agreement of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the agreement and criminal proceedings are resumed, the proceedings, including those on appeal, shall be conducted on the record of the stipulation of facts. As part of the agreement the defendant is also required to pay the minimum fine for a first offense or perform community service in accordance with 8-1567, and complete an alcohol and drug safety program or treatment program. K.S.A. 22-2910, concerning the admissibility of diversion agreements in evidence, was amended by Section 8 to allow certain evidence concerning the diversion agreement to be admissible in a prosecution for violation of 8-1567 resumed for failure to comply with the terms of the agreement. Section 9 amended K.S.A. 22-2911 to require that a record of participation in a diversion program entered into in lieu of prosecution for a violation of 8-1567 be forwarded to the division of vehicles for future use in habitual violator proceedings or prosecutions for violation of 8-1567. Section 11 (now K.S.A. 8-1009) directs when a prosecuting attorney is to make a determination of whether a diversion agreement is to be offered in a prosecution for a violation of either 8-1567 or an equivalent municipal ordinance. Sections 12, 13, 14, 15, 16, and 17 deal with diversion agreements entered into in lieu of prosecutions for violation of municipal ordinances prohibiting acts prescribed by 8-1567. Section 12 (now K.S.A. 12-4413) defines the terms used in Sections 11 to 18. Section 13 (now K.S.A. 12-4414) sets forth when diversion agreements should be offered in municipal prosecutions for alcohol or drug-related traffic offenses, requires guidelines to be established by the city attorney for the implementation of a diversion program and establishes a defendant’s right to counsel in such prosecutions. Section 14 (now K.S.A. 12-4415) is the equivalent of Section 6 (K.S.A. 22-2908), setting forth the factors to be considered by the city attorney in offering diversion programs in municipal prosecutions. Section 15 (now K.S.A. 12-4416) sets forth the provisions to be included in the diversion agreements in municipal prosecutions for alcohol or drug-related traffic offenses, and is similar to Section 7 (K.S.A. 22-2909). Section 16 (now K.S.A. 12-4417) prohibits a guilty plea as a condition of diversion and renders evidence of a proposed agreement inadmissible in a prosecution of the charges. Section 17 (now K.S.A. 12-4418), is identical to Section 9 (K.S.A. 22-2911), except that it applies only to diversion agreements in municipal prosecutions for alcohol and drug-related traffic offenses, omitting subsection (c) of Section 9. Section 10 (now K.S.A. 8-1008) establishes a state alcohol and drug safety action program to be administered by the secretary of social and rehabilitation services for evaluation, supervision and monitoring of all persons who plead nolo contendere to or are convicted of a violation of K.S.A. 8-1567 or an equivalent municipal ordinance. Subsection (c) provides that presentencing reports and drug evaluation reports shall be conducted on anyone convicted of 8-1567, which shall be considered by the court prior to sentencing. Subsection (d) establishes a fund for the program and establishes a fund for the program and assesses a fee against persons convicted of the offense to support the fund. Sections 18,19 and 20, amending K.S.A. 22-3609,22-3609a and 22-3610 respectively, deal with appeals from municipal court or district magistrate judges to the district court. The amendments provided that an appeal to the district court in a prosecution for violation of 8-1567 or an equivalent municipal ordinance, which is resumed upon failure of the defendant to fulfill the terms of a diversion- agreement, shall be conducted upon the stipulation of facts contained in the agreement relating to the charge. The remaining provisions provide for severability of the act, repeal of existing statutes and the effective date of the act. The requirements of art. 2, § 16, of the Kansas Constitution were discussed in State ex rel. Stephan v. Thiessen, 228 Kan. 136, 143, 612 P.2d 172 (1980): “ ‘In order to correctly interpret that provision of § 16, article 2 of the constitution, which provides that “No bill shall contain more than one subject, which shall be clearly expressed in its title,” its object must be taken into consideration; and the provision must not be construed or enforced in any narrow or technical spirit, but must be construed liberally on the one side, so as to guard against the abuse intended to be prevented by it, and liberally on the other side, so as not to embarrass or obstruct needed legislation.’ “ ‘Under this provision of the constitution, the title of an act may be as broad and comprehensive as the legislature may choose to make it; or it may be as narrow and restricted as the legislature may choose to make it. It may be so broad and comprehensive as to include innumerable minor subjects, provided all these minor subjects are capable of being so combined and united as to form only one grand and comprehensive subject; or it may be so narrow and restricted as to include only the smallest and minutest subject.’ “ ‘And while the title to an act may include more than one subject, provided all can be so united and combined as to form only one single, entire, but more extended subject; yet, neither the title to the act nor the act itself can contain more than one subject, unless all the subjects which it contains can be so united and combined as to form only one single subject.’ “ ‘Where a section of an act is assailed as being in contravention of said provision of § 16, article 2 of the constitution, it is sufficient if it is germane to the single subject expressed in the title and included therein, provided the act itself does not contain more than this single subject.’ “ ‘Where an act contains two separate and independent subjects, having no connection with each other, and the title to the act is broad enough to cover both, held, that probably, as a general rule, the act is unconstitutional and void.’ ” In State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 697, 273 P.2d 198 (1954), it was held that art. 2, § 16, should not be construed narrowly or technically to invalidate proper and needful legislation, and that where the subject of the legislation is germane to other provisions, the act is not objectionable as containing more than one subject or as containing matter not expressed in the title. The purpose of the constitutional section was described in Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 622, 549 P.2d 864 (1976), as including: “[T]he prevention of a matter of legislative merit from being tied to an unworthy matter, the prevention of hodge-podge or log-rolling legislation, the prevention of surreptitious legislation, and the lessening of improper influences which may result from intermixing objects of legislation in the same act which have no relation to each other.” A thorough discussion of what violates a constitutional prohibition against more than one subject in an act is found in 73 Am. Jur. 2d, Statutes § 125: “The constitutional prohibition of more than one subject in an act does not impose any limitation on the comprehensiveness of the subject, which may be as comprehensive as the legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject and not several. To constitute plurality of subject, an act must embrace two or more dissimilar and discordant subjects, that by no fair intendment can be considered as having any legitimate connection with or relation to each other. Within the meaning of the constitutional provision, matters which apparently constitute distinct and separate subjects are not so where they are not incongruous and diverse to each other. Generally speaking, the courts are agreed that a statute may include every matter germane, referable, auxiliary, incidental, or subsidiary to, and not inconsistent with, or foreign to, the general subject or object of the act. The constitutional provision is not intended, nor should it be so construed as, to prevent the legislature from embracing in one act all matters properly connected with one general subject or object, but the term ‘subject’ or ‘object’ as used in these provisions is to be given a broad and extended meaning, so as to allow the legislature full scope to include in one act all matters fairly, reasonably, naturally, logically, properly, or directly or indirectly connected with, or related to, each other or the same subject or object. It has been said that there can be no surer test of compliance with the constitutional requirement of singleness of subject than that none of the provisions of an act can be read as relating or germane to any other subject than the one named in the title.” See also 82 C.J.S., Statutes § 218. It has further been held that a court should not declare a statute violative of art. 2, § 16, of the Kansas Constitution unless invalidity is manifest. State v. Roseberry, 222 Kan. 715, 717, 567 P.2d 883 (1977). See also 73 Am. Jur. 2d, Statutes § 123; 82 C.J.S., Statutes § 218, p. 362. The appellant contends 1982 Senate Bill No. 699 contains a myriad of subjects, including the separate and distinct “subjects” of suspension and revocation of drivers’ licenses for all types of traffic offenses, admissibility of blood alcohol test results and presumptions to be attached thereto in prosecutions for alcohol-related traffic offenses, the forfeiture of drivers’ licenses for failure to submit to alcohol blood tests, prohibition against driving under the influence of alcohol or drugs, the use of diversion agreements for all criminal prosecutions in the district court, establishment and funding of an alcohol and drug safety action program, diversion programs in all municipal prosecutions, and appeal procedures in all municipal prosecutions. The appellants’ argument construes the requirements of art. 2, § 16, in the strictest and most narrow sense and would require the nullification of Senate Bill No. 699 in its entirety as unconstitutional. A review of Senate Bill No. 699 reveals that, with the exception of minor and innocuous changes in the wording of existing statutes, all of the revisions to existing statutes and newly enacted provisions contained in the act relate in some way to the comprehensive subject of alcohol and drug-related traffic offenses and prosecution thereof. The act does include minor “subjects” such as the use of diversion agreements in lieu of prosecution for certain offenses in both district court and municipal prosecutions and the establishment of an alcohol and drug safety action program for persons convicted of driving under the influence of alcohol or drugs, but these all relate to the comprehensive subject of alcohol and drug-related traffic offenses, which is the subject expressed in the title of the act. In enacting Senate Bill No. 699 the Legislature sought to provide a comprehensive scheme for the stricter enforcement and prosecution of alcohol or drug-related traffic offenses and the enhancement of penalties therefor. T o accomplish this end it was necessary for the legislature to amend existing statutory provisions relating generally to subjects other than alcohol and drug-related traffic offenses, including suspension and revocation of drivers’ licenses, admissibility of evidence of a driver’s blood alcohol content or refusal to take a blood alcohol test, the use of diversion agreements by county or district attorneys in lieu of prosecution for various criminal offenses, and the record on appeal in municipal and district court prosecutions resumed upon failure to comply with a diversion agreement. The establishment of an alcohol and drug safety action program and treatment program directly relates to the amendment of K.S.A. 8-1567 requiring a person convicted of driving under the influence of alcohol or drugs to enroll in such a program as part of the penalty imposed. The provisions allowing municipal ordinances to be enacted which prohibit acts proscribed by 8-1567, and the use of diversion agreements in prosecutions for violation of such ordinances, ensure consistency in the enforcement and prosecu tion of all alcohol and drug-related traffic offenses in the district and municipal courts, and therefore are directly related to the subject of the act. These provisions are all germane to the broad encompassing subject of alcohol and drug-related traffic offenses. None of the revisions to existing statutes or newly enacted provisions contained in the act can be said to be so diverse or dissimilar as to have no legitimate connection or relation to the subject of alcohol or drug-related traffic offenses. The 1974 amendment to art. 2, § 16, of the Kansas Constitution expressly provided that “[t]he provisions of this section shall be liberally construed to effectuate the acts of the legislature.” The appellant’s motion to dismiss the complaint on the grounds that 1982 Senate Bill No. 699 contained more than one subject was properly overruled. A laundry list of other constitutional challenges to Senate Bill No. 699 is contained in the conclusion to the appellant’s brief. These points were neither briefed nor argued before the trial court, other than their inclusion in a similar fashion in the conclusion of the appellant’s motion to dismiss. Two of these challenges, that K.S.A. 8-1001 violates the 5th and 14th amendments to the United States Constitution and § 10 of the Kan. Const. Bill of Rights by allowing evidence of an accused’s refusal to take a blood alcohol test to be admissible in a prosecution for driving under the influence of alcohol, and that K.S.A. 8-1567 violates the separation of powers doctrine were addressed by this court in State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983), where it was held these statutes were not unconstitutional. None of the points listed by the appellant in the conclusion of his brief were adequately raised before the trial court or briefed on appeal, and therefore are not properly before the court for review. The judgment of the lower court is affirmed.
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The opinion of the court was delivered by Prager, J.; This is an action arising from a dispute over the assessment of an apartment complex located in Johnson County for ad valorem tax purposes. As the opinion will demonstrate, most of the issues presented in the trial court and on appeal involve questions of jurisdiction, procedure, and the scope of appellate review of decisions of the taxing authorities rather than error in the assessment of the property. In determining the case, the Honorable Lewis C. Smith filed a well-reasoned, comprehensive memorandum decision which sets forth at length the decisive facts, outlines the issues, and states the considerations for the court’s decision and judgment. We include here those portions of the memorandum decision involving issues which have been raised on the appeal. MEMORANDUM DECISION Statement of Facts: 1. The real estate involved herein consists of land and improvements comprising an apartment complex located at 87th Street and Mastin in Overland Park, Kansas, and commonly known as The Clines Apartments. 2. Appellee, Capitol Federal Savings & Loan Association (Capitol Federal) was mortgagee of the Clines property and ultimately through foreclosure became owner. 3. On April 9, 1976, Robert C. Esrey, theretofore appointed by the District Court of Johnson County, Kansas, in Case No. 49,941, as receiver and agent for the land and improvements described as The Clines Apartments, together with Capitol Federal, filed an equalization appeal in Docket No. 76-1 to the County Board of Equalization (County Board) of Johnson County, Kansas, from the assessment of said property for the year 1976. 4. On April 21,1976, the equalization appeal was heard by said County Board. As a result of taxpayer’s appeal, a change of assessment was made upon finding that an error had been made in computing the square footage of the improvement. As a result thereof, the County Board made and entered its decision in said equalization appeal on May 12, 1976, reducing the valuation of the land from $251,600 to $223,200, and the valuation of the improvements from $2,096,800 to $1,821,000 or a total reduction of $2,348,400 to $2,044,400 (i.e. reduction of 13%). 5. On June 4, 1976, Capitol Federal and Robert C. Esrey, as receiver, filed an appeal to the State Board of Tax Appeals (BOTA) sitting as the State Board of Equalization, alleging the valuation on the subject properties should have been reduced by an additional amount. 6. On August 11, 1976, evidence was presented before BOTA by all the parties involved herein and the Board, having con- eluded the hearing, took the appeal under advisement, granting the parties leave to submit suggested findings of fact and requested conclusions of law. 7. On or about January 5, 1976, Capitol Federal served by mail its aménded petition and cross-petition adding a tax protest count relating to ad valorem taxes for the years 1970, 1971, 1972, 1973,1974, and the first half of 1975 in its then pending action for foreclosure involving The Clines Apartments (Case No. 49,941). Capitol Federal’s amended petition asserted a claim in the District Court of Johnson County, Kansas, for refund of taxes paid under protest for the first half of 1975 and for the said prior years. The amended petition and cross-petition were brought pursuant to K.S.A. 79-2005. 8. On August 17, 1976, the District Court of Johnson County, Kansas, concluded that said tax protest failed and, sustaining the motion of the county, dismissed the amended petition for failure to state a claim upon which relief could be granted. 9. On September 14, 1976, the taxpayer, Capitol Federal, filed a memorandum in the equalization appeal pending before BOTA. The taxpayer, for the first time in the equalization proceeding, sought a refund of taxes paid under protest. The request for the refund was brought pursuant to K.S.A. 74-2439 and K.S.A. 79-1701 et seq. 10. On or about February 3,1977, BOTA made and entered its order, copies of which were mailed to the parties on February 8, 1977, which order described the issues as follows: “5. That the issues of this appeal are: “(1) Is the taxpayer entitled to further reduction in the fair market value of the property here in question greater than the reduction granted to it by the County Board of Equalization after there being conducted a reappraisal of the property? “(2) Is the taxpayer eligible for a refund of taxes pursuant to K.S.A. 1975 Supp. 79-1701 et seq. due to clerical error for the year 1975?” 11. With regard to the first issue, as articulated by BOTA, it was determined: “13. That no substantial, competent evidence which would support further reduction in the fair market value was presented to this Board which would permit it to alter the decision of the Johnson County Board of Equalization.” Accordingly, BOTA denied the taxpayer’s appeal from the determination of the County Board. 12. With regard to the second issue, as articulated by BOTA, it was determined: “14. That this Board does have the power and authority to correct clerical errors as hereinbefore outlined in Paragraph 8. Further, that the record shows substantial differentiation between figures used to establish the 1976 value, the reappraisal having been made and those figures used to establish the 1975 fair market value. That, therefore, the taxpayer is entitled to relief on this claim of error that the County has had, and has taken, the opportunity to make its views known as to this Board’s authority on this issue. Therefore, the Motion for Refund is sustained.” 13. With regard to the second issue, BOTA further determined: “15. That the 1976 appraisal valuation presently placed against the land and improvements is correct as determined by the County Board of Equalization of Johnson County, Kansas, and was made in conformity with the applicable provisions of the Kansas Statutes Annotated. And, that the tax levied upon this property for the year 1975 was erroneously calculated not having taken into consideration the true and correct square footage of the improvements located upon the property here in question and, as such, the taxes levied for 1975 ought to be computed based upon these corrected figures as was the 1976 valuation. Any refund due and owing to the taxpayer should then be made or credited to succeeding tax liabilities.” 14. On March 1, 1977, the receiver served a copy of a notice of appeal to the district court of Johnson County and filed the original with BOTA. On the same day he served and filed an application for rehearing contending that the BOTA should have ordered a refund of taxes paid for the years 1971 through 1974; and asking BOTA to grant a rehearing on the question of uniform and equal assessment as it relates to the subject properties. 15. On March 8, 1977, Johnson County filed a motion for a rehearing concerning Paragraphs 14 and 15 of said order and the order of refund for the tax year 1975. 16. On March 10, 1977, Johnson County served and filed a notice of appeal from that part of the order of BOTA whereby BOTA ordered Johnson County to refund or credit 1975 real estate taxes, said appeal being docketed as Case No. 68,767 in the District Court of Johnson County, Kansas. 17. On March 17, 1977, BOTA made and entered an order granting a limited rehearing pertaining to the ability of BOTA to refund and the amount due and owing. 18. On April 6, 1977, Robert C. Esrey, as receiver, and Capitol Federal filed a notice of appeal in the District Court of Johnson County from that part of the order of BOTA dated February 3, 1977, and the order of BOTA denying rehearing on said matter dated March 17, 1977, wherein BOTA denied taxpayer’s relief in the application for relief from the assessment of The Clines Apartments. This appeal was docketed as Case No. 69,248. 19. On May 24, 1977, a hearing was held, pursuant to the order for limited rehearing before BOTA. On August 3, 1977, BOTA made and entered an order wherein BOTA, affirming its determination in the prior order dated February 3, 1977, further determined: “1." That the 1976 appraised valuation presently placed against the land and improvements is correct as determined by the County Board of Equalization of Johnson County, Kansas, and was made in conformity with the applicable provisions of the Kansas Statutes Annotated. This reaffirms our findings in the prior Order dated February 3, 1977. “2. That this Board does have the power and authority to correct clerical errors, as outlined in the prior Order in this docket, and that the records show substantial differentiation between figures used to establish the 1976 value, a reappraisal having been made, and those figures used to establish the fair market value of this complex at the time of the completion of its construction. That, therefore, the taxpayer is entitled to relief on their claim of error as admitted by the County, and that the County has had, and has taken, the opportunity to make its views known on the subject of this Board’s authority to make such corrections and issue refunds. “3. That as a finding of fact, after having reviewed the property cards maintained by Johnson County, Kansas, reflecting the completion date of the property in question, this Board determines that said property was completed for purposes of taxation as of the 1st day of January, 1974. “4. That the clerical error complained of by the appellant is one which has applicability solely to the apartment complex in its completed form, which would be during tax years 1974 and 1975. “5. That this Board did not with specificity determine in its prior Order the tax years to which the clerical error complained of would have reference. “6. That this Board now determines that a refund is due and owing to the taxpayer for the tax levied upon the property for the years 1974 and 1975 (both taxes having been paid in 1975) was erroneously calculated not having taken into consideration the true and correct square footage of the improvements located upon the property here in question and, as such, the taxes levied for 1974 and 1975 should be recomputed based upon the correct figures as was the 1976 valuation. Any refund due and owing to the taxpayer should then be made or credited to the succeeding tax liabilities.” 20. On September 2, 1977, Robert C. Esrey and Capitol Federal filed a notice of appeal in the District Court of Johnson County, Kansas, which was docketed as Case No. 72,082. Appellants appealed from the order of BOTA dated August 3, 1977, wherein BOTA denied taxpayer relief from the assessment of The Clines Apartments. Taxpayer also appealed from that part of BOTA’s order which denied a refund on the taxes paid for the years 1972 and 1973 based upon clerical error admitted by the assessor of Johnson County. 21. On September 7, 1979, Johnson County filed its notice of appeal in the District Court of Johnson County, Kansas, docketed as Case No. 72,139. Johnson County appeals from that part of BOTA’s order dated August 3, 1977, wherein BOTA determined that a refund was due and owing for taxes levied for 1974 and 1975 and ordered Johnson County to refund or credit the 1974 and 1975 real estate taxes. Johnson County also appeals from that part of BOTA’s order dated February 3, 1977, wherein BOTA determined that a refund was due and owing for taxes levied in 1975, and ordered Johnson County to refund or credit same. 22. On June 20, 1978, Administrative Judge of the District Court of Johnson County, finding that the parties had stipulated that the said cases numbered 68,767, 69,248, 72,082, and 72,139 involved certain common questions and that said matters should be consolidated for all further proceedings, made and entered an order consolidating said cases in Court No. 6 of the District Court of Johnson County, Kansas. 23. In a collateral proceeding entitled In re Tax Protest of Rice, 228 Kan. 600, 620 P.2d 312 (1980), taxpayers Ronald and Julia Rice made payment, under protest, of several years’ taxes on Shawnee County real estate. The taxpayers timely perfected an appeal to BOTA which granted relief to the taxpayers for the years 1973 through 1976. On appeal to the Shawnee County District Court, the county, relying upon the Johnson County District Court case, Capitol Federal Savings & Loan Association v. Western Lumber and Building Supply, Inc., Case No. 49,941, argued that delinquent taxes could not be protested under K.S.A. 79-2005. The Shawnee District Court disagreed with this contention, and in a split decision, the Supreme Court of Kansas agreed, finding that it is the prerogative of the legislature to prohibit the protesting of delinquent taxes and the statute (79-2005) would not support such a strained construction. Therefore, the opinion rendered by the Honorable Buford L. Shankel of Johnson County District Court was effectively overruled, though not through the direct appeal process. ISSUES Based upon the foregoing facts, a number of procedural and substantive issues have been raised: I. Whether BOTA had jurisdiction to consider the taxpayer’s motion for refund of taxes paid under protest. A. Whether the doctrine of res judicata precluded BOTA from considering the tax refund claim alleged by the taxpayer at a time when the same claim was pending before a court of competent jurisdiction and prior to determination by said administrative board, the court, in Case No. 49,941 rendered judgment denying relief to the taxpayer. B. Whether this court, to avoid manifest injustice, should vacate or set aside the decision rendered in Case No. 49,941. C. Whether BOTA, sitting as the State Board of Equalization pursuant to K.S.A. 79-1409 can consider issues concerning a tax refund in accordance with K.S.A. 79-1701 et seq. D. Whether taxpayer’s claim for refund of taxes paid under protest in accordance with K.S.A. 74-2439 and 79-1701 et seq. was first required to be presented to the Board of County Commissioners. II. Whether BOTA’s order of refund was made on the basis of substantial and competent evidence. IV. Whether BOTA’s order sustaining the findings of the County Board was unreasonable, arbitrary or capricious. DISCUSSION I. Jurisdiction A. The dismissal of taxpayer’s amended petition in Case No. 49,941 operated as an adjudication “on the merits” within the meaning of K.S.A. 60-241 and as such it was conclusive as to any other action or proceeding involving the same cause of action, subject only to the right to have the same vacated or set aside in a proper proceeding. The first issue is concerned with whether res judicata applies to the factual setting presented herein for the reason that at the time BOTA issued its order granting the taxpayer a refund of protested taxes, a previous decision had been rendered by a court of competent jurisdiction involving the same facts, same parties and same issues (Case No. 49,941). In asserting the taxpayer was precluded from raising the tax protest claim before BOTA, the County focuses on the taxpayer s amended petition in the foreclosure proceeding (Case No. 49,941) and the procedural avenue employed by the taxpayer. As previously set forth in the facts, taxpayer’s amended petition was filed pursuant to K.S.A. 79-2005, which provides: “(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 . . . It is argued by the County that within thirty days after the payment of the taxes under protest, taxpayer made an election under the statute to commence an action in the district court by filing an amended petition rather than filing an application with BOTA. Since the taxpayer elected its remedy under K.S.A. 79-2005 to commence the judicial proceeding, it is asserted that said action was res judicata as to BOTA proceedings. The taxpayer approaches the res judicata issue from a different perspective. In an attempt to escape the application of K.S.A. 79-2005, it is contended that a taxpayer has at least two routes in which to obtain-relief from BOTA. It is asserted that a taxpayer can proceed under the remedies provided by K.S.A. 79-2005 or choose to seek relief to BOTA- under separate remedial statutes — K.S.A. 74-2439 and 79-1701 et seq. In'the present case, the taxpayer chose to take both courses of action, seeking the same relief from the two tribunals. Therefore, taxpayer argues that the county’s contentions with regard to K.S.A. 79-2005 are without merit because the taxpayer did not appear before BOTA by way of K.S.A. 79-2005. From this procedural vantage point the taxpayer argues that the doctrine of res judicata is not applicable to the present situation. It appears that both parties have placed considerable emphasis on the particular statute used in obtaining relief and arrive at conflicting conclusions. Indeed, the county emphasizes the taxpayer was properly before the District Court of Johnson County in Case No. 49,941 in accordance with K.S.A. 79-2005. The appellees’ remedies were, therefore, exhausted by the statute and res judicata precluded the bringing of the tax protest issue before BOTA. Likewise, appellees-seek to elude the application of res judicata by arguing they proceeded under separate remedial statutes. However, the parties fail to recognize that applica tion of the doctrine of res judicata is unconcerned with the procedural avenue employed to acquire jurisdiction in a particular tribunal. On the contrary, the doctrine prevents a second assertion of the same claim or cause of action. Goetz v. Board of Trustees, 203 Kan. 340, 454 P.2d 481 (1969). Thus, regardless of which statute the taxpayer used to proceed to BOTA on its tax protest issue, the fact remains that the same facts, same parties, and same issues had previously been litigated before a court of competent jurisdiction. Moreover, it is a well-established rule that where a court has jurisdiction of the parties to an action and of the subject matter thereof and renders a judgment within its competency, such judgment is final and conclusive, unless corrected or modified on appeal. McFadden v. McFadden, 187 Kan. 398, 402, 357 P.2d 751 (1960). It is further a fundamental rule that where a court of competent jurisdiction renders a judgment within its competency, even if erroneous, that judgment is final and conclusive unless corrected or modified on appeal, and it may not be attacked collaterally. In re Estate of Johnson, 180 Kan. 740, 308 P.2d 100 (1957). In the present case, without considering whether taxpayer could proceed to BOTA under the separate remedial statutes, once the judgment was rendered by the District Court of Johnson County in Case No. 49,941 it became a final order and could not be attacked collaterally in an administrative proceeding. The proper procedure was for the taxpayer to seek reversal of the judgment through the appeal process. The remaining procedural obstacle which would prevent the application of the doctrine of res judicata is if the dismissal rendered in Case No. 49,941 was not “on the merits.” As taxpayer properly points out in a supplemental brief to the court: “If a judgment of dismissal is on the merits, it operates under the doctrine of res judicata to preclude subsequent relitigation of the same cause of action; if it is not on the merits, it does not so operate.” 46 Am. Jur. 2d, Judgments § 479. Thus, the novel issue before this court is whether a dismissal for failure to state a claim upon which relief can be granted under K.S.A. 60-212(h)(6) is one “on the merits,” thereby precluding subsequent relitigation. Taxpayer contends that the Kansas Supreme Court has previously decided this issue in the case Burris v. Burris, 140 Kan. 208, 34 P.2d 127 (1934). In that case the court held that a ruling on a demurrer to a pleading did not operate to bar a new suit or cause of action. Without question, a 60-212(fc)(6) motion is the modern equivalent to a general demurrer. However, the holding in Burris can clearly be limited to its facts and has no precedential effect on the case presented here. First, in Burris, unlike in this case, the trial court did not enter judgment against the plaintiff other than to sustain the demurrer. Moreover, the plaintiff in Burris was permitted to dismiss his suit without prejudice and within the appropriate time filed a second cause of action. Rather than seeking to resolve this issue through resort to case law decided in the days of code pleading, the court will look to the modern Code of Civil Procedure to resolve this issue. Case No. 49,941 was dismissed by the District Court of Johnson County upon motion by the county pursuant to K.S.A. 60-212(h). Although it is frequently unclear whether the court has dismissed under 60-212(b)(l.) or 60-212(h)(6), in the present case the court concluded that the facts, as alleged in the amended petition, were insufficient to support a claim for relief. Therefore, clearly the court rendered the decision pursuant to 60-212(h)(6) — failure to state a claim. The basic difference among the various 60-212(h) motions is that 60-212(h)(6) alone necessitates a ruling on the legal sufficiency of plaintiff s claim; the others deal with procedural defects. Because of this, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. In Case No. 49,941, the court considered the legal sufficiency of taxpayer’s case and concluded, that even if each allegation were proven, as a matter of law, “a taxpayer may not protest the payment of taxes after the taxes have become delinquent.” Although the decision was later declared to be an erroneous ruling of law (In re Tax Protest of Rice, 228 Kan. 600), there is nothing in the decision to indicate the dismissal was rendered without prejudice, thereby precluding its prospective application. This court must, therefore, conclude that the judgment in Case No. 49,941 was “on the merits,” with res judicata effect. In support of this conclusion, the court relies on the literal language of K.S.A. 1982 Supp. 60-241(£>), which states in relevant part: “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under K.S.A. 60-219, operates as an adjudication upon the merits." (Emphasis supplied.) The trial court’s dismissal of taxpayer’s amended petition in Case No. 49,941 falls directly under the wording of K.S.A. 1982 Supp. 60-241(6). Additionally, numerous federal cases have held that a dismissal for failure to state a claim operates as an adjudication on the merits. See, e.g., Teltronics v. L M Ericsson Telecommunications, 642 F.2d 31 (2d Cir. 1981); Mortensen v. First Federal Sav. and Loan Ass’n, 549 F.2d 884 (3rd Cir. 1977); Exchange Nat. Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (2d Cir. 1976); Timberlane Lbr. Co. v. Bank of America, N.T. & S.A., 549 F.2d 597 (9th Cir. 1976); Hubicki v. ACF Industries, Incorporated, 484 F.2d 519 (3rd Cir. 1973); Brennan v. Rhodes, 423 F.2d 706 (6th Cir. 1970); Weissinger v. United States, 423 F.2d 795 (5th Cir. 1970); and see 2A Moore’s Federal Practice, ¶ 12.09 (2d ed. 1968). Since all requirements for the application of res judicata are satisfied, the dismissal of appellees’ first complaint is conclusive as to any other action or proceeding involving the same cause of action, subject only to the right to have the same vacated or set aside in a proper proceeding. B. In order to avoid manifest injustice the court finds that the decision reached in Case No. 49,941, only as it pertains to the dismissal of taxpayer’s amended petition for refund of taxes, should be vacated and set aside in accordance with K.S.A. 60-260(6)(6). The essential purposes of the taxation statutes are to furnish an adequate and sufficient remedy to the taxpayer in case of an illegal or unjust assessment for taxes and, at the same time, to provide an expeditious method by which the various branches of government affected can obtain the revenue necessary to their maintenance. Taxpayer had a remedy that was plain, simple, adequate, and complete by proceeding before the District Court of Johnson County pursuant to K.S.A. 79-2005. However, due to an erroneous ruling of law, the taxpayer was denied the right to fully litigate the legal merits of its claim. The court is cognizant of the fact that res judicata is a doctrine grounded on the idea that the finality of an authoritative determination serves the interests of society as well as the parties by bringing an end to litigation on a claim. However, this factor must be weighed against the long-standing policy of deciding legal controversies “on their merits,” coupled with the court’s function to prevent manifest injustice whenever possible. K.S.A. 60-260(b) reads in pertinent part: “On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: “(6) any other reason justifying relief from the operation of the judgment.” This rule, in its entirety, attempts to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts. Decisions under the parallel federal rule of civil procedure reflect the view that Rule 60 is to be “liberally construed ... in order that judgments will reflect the true merits of a case.” 11 Wright & Miller, Federal Practice and Procedure: Civil § 2852, p. 143 (1973). Likewise, the liberality with which Rule 60 (b) and particularly Clause 6 thereof should be applied is stated as follows in 7 Moore’s Federal Practice, ¶ 60.27(1), p. 342 (2d ed. 1982): “Like Rule 60(b) generally, clause (6) should be liberally applied to situations not covered by the preceding five clauses so that, giving due regard to the sound interest underlying the finality of judgments, the district court, nevertheless, has power to grant relief from a judgment whenever, under all the surrounding circumstances, such action is appropriate in the furtherance of justice.” In view of the foregoing principles, the court is of the opinion that application of K.S.A. 60-260(b)(6) to the facts of Case No. 49,941 requires the decision, as it pertains to taxpayer’s amended petition for refund of protested taxes, should be set aside. The court reaches this decision so that the ultimate result will address the true merits of taxpayer’s cause and substantial justice will be done. C. There exists no statutory provision which limits the Board of Tax Appeals, sitting as the State Board of Equalization, from considering a tax refund issue in accordance with K.S.A. 79-1701 et seq. At the outset it should be noted that the power of an administrative board, like BOTA, to consider matters of taxation is limited as permitted by statute. It may review questions affecting the assessment and valuation of property, and whether such assessment is uniform and equal within the province of article 11 section 1 of the Kansas Constitution. The question posed by the issue presented here concerns the court’s inquiry into the jurisdiction of BOTA to grant a refund of taxes paid under protest. Johnson County contends that BOTA, sitting as the State Board of Equalization, did not have the statutory authority to refund the taxes in the equalization appeal, Docket No. 23-76-E. It is alleged by the county that there is no provision for a refund of taxes in an equalization appeal before the County Board or the State Board of Equalization. As previously indicated in the statement of facts, this matter was brought to the attention of the County Board on April 21, 1976, and culminated in a decision to reduce the assessed valuation on taxpayer’s property on May 12, 1976. The power of the County Board to do so is provided in K.S.A. 79-1602, which states that such boards shall: “[Mjake such changes in the assessment of property as shall be necessary in order to secure uniform and equal assessment of all property. “The board shall hear and determine any appeal made by any taxpayer as to the assessment and valuation of any property in the county which may be made to the board by the owner of such property or his or her agent or attorney, and shall perform the duties hereinbefore set out in this section.” As the county properly points out, there is no provision for a refund in an equalization appeal before the County Board. Thereafter, as previously pointed out, taxpayer appealed the decision of the County Board to BOTA in accordance with K.S.A. 79-1609. The jurisdiction of BOTA to sit as the State Board of Equalization is provided in K.S.A. 79-1409, which provides: “The state board of tax appeals shall constitute a state board of equalization, and shall equalize the valuation and assessment of property throughout the state; and shall have power to equalize the assessment of all property in this state between persons, firms or corporations of the same assessment district, . . . and between the different counties of the state, and the property assessed by the director of property valuation in the first instance. And any person feeling aggrieved by the action of the county board of equalization may, within forty-five (45) days after the decision of said board, appeal to the state board of equalization for a determination of such grievance.” The county submits that since K.S.A. 79-1409 contains no provision authorizing a refund of taxes paid under protest with respect to the State Board of Equalization, no such authority exists. Viewing this statute in isolation, the county is quite correct in its assertion. However, in construing statutes the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Rogers v. Shanahan, 221 Kan. 221, 565 P.2d 1384 (1976); Harris v. Shanahan, 192 Kan. 629, 390 P.2d 772 (1964). The general enumerated powers of BOTA are provided in K.S.A. 74-2439, which provides: “Except as otherwise provided by law, the state board of tax appeals shall have the following powers and duties: “(a) Constituting, sitting and acting as the state board of equalization as provided in K.S.A. 79-1409; “(d) correcting errors and irregularities under the provisions of article 17 of chapter 79 of Kansas Statutes Annotated; . . Clearly, there is nothing in K.S.A. 79-1409 which limits the above-cited powers of BOTA. There exists no statutory “line of demarcation” between BOTA’s power to act as a state board of equalization and its power to correct errors provided for in article 17 of chapter 79. The correction of errors referred to in subsection (d) of K.S.A. 74-2439 is in reference to K.S.A. 79-1702. K.S.A. 79-1702, employed by BOTA in this case to order a refund to taxpayer, provides in part: “If any taxpayer or any municipality or taxing district shall have a grievance not remediable under the provisions of K.S.A. 79-1701 or 79-1701a, or amendments thereto, or which was remediable thereunder and reported to the proper official or officials within the time prescribed but which has not been remedied by such official or officials, such grievance may be presented to the state board of tax appeals and if it shall be satisfied from competent evidence produced that there is,a real grievance, it may direct that the same be remedied either by canceling the tax if uncollected together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected.” (Emphasis supplied.) A strict reading of the statute reveals BOTA has the authority to refund unlawfully collected taxes. Considering all of the statutes together it is apparent BOTA’s authority to act on matters of equalization is additional to, and not exclusive of, its other powers. This statutory interpretation is well supported by the relevant case law. In Atchison, T. & S.F. Rly. Co. v. Drainage District, 133 Kan. 586, 590, 1 P.2d 253 (1931), it was said: "Moreover, if the railway property was unfairly assessed the statute provides a remedy which was open to defendant, as to all aggrieved taxpayers (R.S. 79-1404, 79-1409,79-707, 79-1702) and that matter furnished no basis for this action either to enjoin the assessment or to recover the tax already paid." (Emphasis supplied.) Further, in Beacon Publishing Co. v. Burke, 143 Kan. 248, 53 P.2d 888 (1936), the county assessor assessed plaintiffs stock in the form of “Escaped Assessments” for the years 1929-1933. Thereafter, plaintiff proceeded before the board of county commissioners sitting as the county board of equalization and protested against the so-called escaped assessments and requested the board to equalize said alleged escaped assessment. Following the board’s refusal to take any action to remedy this situation, plaintiff duly applied to the state tax commission (BOTA) sitting as the state board of equalization. This action was taken to employ the powers of the board as enumerated in R.S. 1923, 79-1409 (1933 Supp.) (K.S.A. 79-1409). In the same proceeding, plaintiff requested the state tax commission to take jurisdiction of said cause and award plaintiff relief in accordance with R.S. 1923, 79-1701 and 79-1702. In an opinion written by Mr. Justice Hutchison, the pertinent statutes (i.e. 79-1427, 79-1409 and 79-1702) and decisions dealing with the powers of the state tax commission- were considered and obedience to the order of the commission was required by mandamus. It has thus been seen that the powers, duties, and supervisory responsibilities of BOTA are coextensive with the state’s entire scheme of taxation. Therefore, the county’s argument that the state board of equalization may not concern itself with matters of tax refund is without merit. BOTA is the paramount, lawfully constituted taxing authority in the state (Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P.2d 147 [1971], cert. denied 406 U.S. 967 [1972]) and its powers as enumerated in K.S.A. 74-2439 are not mutually exclusive. Moreover, BOTA is afforded specific statutory authority to order the correction of errors and grant refunds — chapter 79, article 17, Kansas Statutes Annotated. The county also asserts that BOTA did not have jurisdiction to consider taxpayer’s refund claim because taxpayer had elected its remedy under K.S.A. 79-2005 and was precluded from filing an application with BOTA. 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 thirty (30) days thereafter, commence an action in court or file an application with BOTA. Although the county suggests otherwise, it has long been recognized in this jurisdiction that K.S.A. 79-2005 is not the exclusive means of seeking a refund of taxes from BOTA. Indeed, the Kansas Supreme Court, in 1935, recognized that K.S.A. 79-1702 could serve as a substitute for K.S.A. 79-2005. Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P.2d 936 (1935). In an opinion affirming the district court’s decision .requiring the county treasurer to comply with an order issued by the state tax commission, the supreme court, considering whether the commission could order a refund of taxes illegally levied and paid, said: “On this question of law, certain pertinent sections of the tax law will require examination. R.S. 79-1702, in substance, provides that where a taxpayer has a grievance not otherwise remediable he can have redress through the state tax commission, which is given power, among other matters, to order a refund of the amount found to have been unlawfully charged and collected. R.S. 1933 Supp. 79-2005 also directs what preliminary steps a protesting taxpayer shall take to perfect his right to recover taxes illegally exacted. Of what avail would it be for him to conform to these steps if they were not intended by the legislature to lead to their logical fruition?” p. 624. This rule of law has been supported on several occasions, finding the remedy provided under K.S.A. 79-2005 is not an exclusive remedy. Panhandle Eastern Pipe Line Co. v. Herren, 207 Kan. 400, 403, 485 P.2d 156, modified 208 Kan. 119, 490 P.2d 416 (1971); 9 Kansas Digest, Taxation § 543 (1971). Likewise, the county’s assertion that taxpayer’s failure to file its application for refund within 30 days precluded BOTA from assuming jurisdiction is equally without merit. Nothing in K.S.A. 79-1701 et seq. can be construed to set a 30-day time limitation. Additionally, the BOTA hearing was commenced pursuant to K.S.A. 74-2439 and 79-1701 et seq. and not 79-2005. Therefore, the statutory time limitation set forth in the latter statute is not applicable to the factual situation presented herein. In the final analysis, upon considering all the relevant statutes and applicable case law, the court must conclude BOTA had jurisdiction to consider the equalization and refund issues presented by the taxpayer in the same proceeding. D. The BOTA had proper jurisdiction to grant taxpayer a refund of unlawfully assessed taxes pursuant to K.S.A. 79-1702 even though the claim was not formally presented before the County Board of Equalization. The county next contends that BOTA did not have jurisdiction to refund the taxes to taxpayer in accordance with K.S.A. 79-1701 et seq. because the claim for refund must have first been presented to the board of county commissioners for determination. Before considering the merits of the county’s contention, it must briefly be mentioned that the BOTA decision in this regard was rendered pursuant to K.S.A. 79-1702 even though taxpayer’s grievance was predicated upon K.S.A. 79-1701a which generally applies to the Board of County Commissioners. Upon reviewing the entire record and the order issued by BOTA, it becomes quite apparent that BOTA relied on the powers conferred by K.S.A. 79-1702 to refund the disputed taxes. This issue is basically one of statutory construction in which both parties have interpreted the respective statutes in a light most favorable to their respective position. Although the court finds considerable merit in the arguments advanced by both sides, it adopts neither approach. On the contrary; a strict interpretation of K.S.A. 79-1702 leads the court to conclude BOTA did indeed have jurisdiction, irrespective of the county board’s consideration.of the issue. Once again, K.S.A. 79-1702 provides, in part: “If any taxpayer or any municipality or taxing district shall have a grievance not remediable under the provisions of K.S.A. 79-1701 or 79-1701a, or amendments thereto, or which was remediable thereunder and reported to the proper official or officials within the time prescribed but which has not been remedied by such official or officials, such grievance may be presented to the state board of tax appeals. . . . [I]t may direct that the same be remedied ... by ordering a refund of the amount found to have been unlawfully charged and collected.” (Emphasis supplied.) The first question to be asked is whether the grievance complained of by the taxpayer is remediable under K.S.A. 79-1701 or 79-1701a. The court must answer this question in the negative. It is clear that the taxpayer sought relief before BOTA for an error committed in the “valuation and assessment process” on the part of the county assessor. Looking over the various “clerical errors” which are remediable under K.S.A. 79-1701, there is no provision for an error of the type complained of in the present case. Therefore, applying the literal language of the statute (79-1702), the taxpayer did not have a “grievance remediable under the provisions of K.S.A. 79-1701 or 79-1701a.” As such, in accordance with K.S.A. 79-1702, BOTA had jurisdiction to consider the grievance without prior county board consideration and it ultimately had the power to order a refund. At this point, the court’s analysis of the jurisdictional issue must conclude because proper jurisdiction has been accomplished. The court is mindful of the fact that BOTA’s order of February 3, 1977, contains language which could be construed to indicate that BOTA applied K.S.A. 79-1701 and found a clerical error enumerated within the statute applied to the factual situation presented here. However, BOTA appears to be well aware of its general powers as provided in K.S.A. 74-2439, including K.S.A. 79-1702. This court is not prepared to vacate the order simply because BOTA attempted to pigeonhole the issue presented herein into one of the errors found in 79-1701. On the contrary, the result reached (i.e., finding proper jurisdiction) was the correct one, although the procedure used in reaching the result may have been factually incorrect. Lest the county believe the court’s interpretation of K.S.A. 79-1702 is a unique or novel one, the court can only suggest the party review the following cases. In each instance this statute was applied to seek review before BOTA and the error complained of was not included among those listed in K.S.A. 79-1701. Thompson v. Chautauqua County Comm’rs, 147 Kan. 151, 75 P.2d 839 (1938); Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620; Beacon Publishing Co. v. Burke, 143 Kan. 248. Finally, it must be noted that K.S.A. 79-1702 has been amended to effectively eliminate a taxpayer’s use of this statute when concerning errors in valuation and assessment. See K.S.A. 1980 Supp. 79-1702. II. The BOTA’s order of refund to taxpayer was made on the basis of substantial and competent evidence. As the record before this court discloses, the taxpayer’s appeal to BOTA from the decision of the county board of equalization was filed on June 4, 1976. On August 11, 1976, an evidentiary hearing was held before BOTA to consider the merits of said equalization appeal. Thereafter, on September 14, 1976, for the first time taxpayer sought to inject the issue of the request for refund of taxes paid under protest. Johnson County opposed consideration of the request for refund in the memorandum of Johnson County in Opposition to Appellant’s Motion for Refund served on December 8, 1976. After considering this memorandum and taxpayer’s reply memorandum, BOTA made and entered its order in the equalization appeal on February 3, 1977, wherein it concluded, in part: “14. That this Board does have the power and authority to correct clerical errors as hereinbefore outlined in Paragraph 8. Further, that the record shows substantial differentiation between figures used to establish the 1976 value, the reappraisal having been made, and those figures used to establish the 1975 fair market value. That, therefore, the taxpayer is entitled to relief on this claim of error and that the County has had, and has taken, the opportunity to make its views known as to this Board’s authority on this issue. Therefore, the Motion for Refund is sustained.” Further, “15. . . . And, that the tax levied upon this property for the year 1975 was erroneously calculated not having taken into consideration the true and correct square footage of the improvements located upon the property here in question and, as such, the taxes levied for 1975 ought to be computed based upon those corrected figures as was the 1976 valuation. Any refund due and owing to. the taxpayer should then be made or credited to succeeding tax liabilities.” (Emphasis supplied.) Given this set of facts, Johnson County asserts that neither was a claim of any “clerical error” made at the evidentiary hearing on August 11, 1976, nor was evidence supporting such claim presented. Additionally, Johnson County submits BOTA failed to make any finding in the order of February 3, 1977, enumerating the evidence supporting the alleged error. Thus, it is asserted that BOTA’s order of February 3, 1977, was not based on substantial competent evidence and should be vacated by this court. This issue can be readily resolved by resort to the applicable statutes and the record presently before the court. First, the court will concern itself with Johnson County’s argument that taxpayer’s claim for refund was not presented at the evidentiary hearing on August 11, 1976. Although not expressly stated, the county’s argument in this regard is evidently questioning BOTA’s ability to consider taxpayer’s refund issue when no claim of refund was made at the evidentiary hearing, but was raised at a later date- — September 14, 1976. The court is not directed to any statute, case, or treatise on the subject of administrative law in an effort to determine the proper procedure herein. Nevertheless, the court finds K.S.A. 79-1702 helpful in this regard. Once again, K.S.A. 79-1702 gives a taxpayer who feels aggrieved by an illegal or unequal assessment the right to appeal to BOTA to have its grievance heard. There is no time limitation imposed by this statute. Thus, the fact that taxpayer in the present case filed its grievance in September, 1976, is of no consequence. K.S.A. 79-1702 further provides that BOTA must be satisfied from competent evidence that a real grievance exists. However, the statute does not condition its application on evidence being supplied only from a previous equalization proceeding. Johnson County’s assertion that no evidence supporting BOTA’s refund order was presented is equally without merit. Upon reviewing the entire record, the court is of the opinion that the merits of the refund are more than adequately reflected. Before the county board, the witness for the assessor, Mr. Roger Harte, speaking in the presence of and on behalf of the assessor, stated that because of certain “mechanical and clerical errors” in the assessment of the improvements, the square footage computations of the assessment cards were brought up to date. As a direct result of this information, the county board of equalization ordered a reduction in the assessed valuation by an amount equal to 13%. Relying on this admission of error, coupled with the fact that the county had indeed reduced the subject property’s valuation by 13%, BOTA determined that a refund was due and owing to the taxpayer. This result is fully supported in Paragraph 15 of the February 3, 1977, order, which states: “, . . that the tax levied upon this property for the year 1975 was erroneously calculated not having taken into consideration the true and correct square footage of the improvements located upon the property here in question and, as such, the taxes levied for 1975 ought to be computed based upon these corrected figures as was the 1976 valuation.” After reviewing the complete record presented herein, the court is of the opinion that the evidence submitted before BOTA was sufficient to conclude that errors had been made in the calculation of the square footage of the subject improvements. As such, it was totally proper for BOTA to refund the excessive taxes paid in 1974 and 1975. IV. The record before the court fails to show that the orders of BOTA in denying taxpayer’s appeals from the County Board of Equalization to BOTA were unreasonable, arbitrary or capricious. In cases 69,248 and 72,082 taxpayer appeals from the orders of BOTA to this court pursuant to K.S.A. 74-2426. As both parties are well aware, this court has ample authority to grant complete relief to a taxpayer who feels aggrieved by reason of discrimination in assessment of property. However, the parties must also be aware that the assessment and valuation of property are administrative functions, not judicial ones. Therefore, this court will not substitute its judgment for that of the assessing authority in the absence of fraud or conduct so oppressive, arbitrary, or capricious as to amount to fraud. Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P.2d 982 (1968). Moreover, in reviewing the decision reached by BOTA in Docket No. 23-76-E, the court is limited to consideration of the evidence submitted before BOTA in reaching its conclusion. The record before BOTA reflected that The Clines Apartment complex was begun in 1969. At that time, land value was taxed with an improvement assessment added in 1970. Following the contractor’s failure to complete the project, the property was subjected to foreclosure proceedings in 1971. A receiver was appointed and the remaining units left uncompleted by the contractor were finished. Thereafter, the improvement assessment was increased for 1972, reduced in 1973, raised in 1974 and this last assessment remained until taxpayer appealed to the Johnson County Board of Equalization contending the property was not being uniformly and equally assessed in accordance with art. 11 sec. 1 of the Kansas Constitution. Upon finding that errors had been made in calculation of square footage of the improvements, the county assessor reappraised the property, and as a result of said reappraisal, recommended a reduction of 13% from the 1976 valuation. By order of the county board made on May 12, 1976, the fair market value was reduced. From that order, the taxpayer properly perfected an appeal to BOTA. At the evidentiary hearing of August 11, 1976, and thereafter upon rehearing, taxpayer argued that the facts disclose an additional 10% reduction in the assessed valuation was necessary in order to bring the property in uniformity with comparable properties in the taxing district, Taxpayer’s assertion for an additional 10% reduction was based solely upon the taxes levied on comparable properties when compared against the valuation of The Clines Apartments. Likewise, taxpayer’s appeal to this court is premised on the idea that the real estate assessment on The Clines Apartment project is greater than comparable properties in the taxing district in Johnson County. However, as BOTA properly points out, there are numerous factors which must be considered in attempting to establish fair market value and basing the valuation on a simple comparison of the tax levies of “comparable properties” results in an inaccurate calculation. Thus, the court must agree with BOTA that taxpayer failed to present substantial, competent evidence which would support an additional reduction in the fair market value of The Clines. In the final analysis, taxpayer has failed to provide the court with any evidence presented before BOTA which would tend to support a finding of unreasonableness or arbitrariness on the part of the administrative board. As such, the court must find that taxpayer’s appeals from the orders of BOTA as they relate to the equalization and assessment of The Clines should be denied. In addition to the foregoing, upon the filing of taxpayer’s motion to vacate and set aside the order of dismissal in Case No. 49,941 entered August 17, 1976, by the Honorable Buford L. Shankel, and the taxpayer’s motion for reassignment of that case to this court, the attorney representing the commissioners in the original case, No. 49,941, desired the opportunity to be heard and to present briefs in opposition to taxpayer’s motion. These have been submitted, filed, and reviewed by the court. The court finds that the defenses asserted by James Bouska, attorney for said commissioners, although eloquently stated on the issues of res judicata, estoppel, and collateral estoppel, have been discussed in the foregoing opinion of the court. In substance, the court has been impressed with and has utilized the meaning and interpretation given to K.S.A, 60-260(fc) enlarging time in extenuating or unusual circumstances. The court finds the facts in this case fit that criteria. DECISION After due consideration of the evidence and testimony presented before BOTA as well as the arguments advancéd by the parties, and memoranda submitted, the court finds as follows: 1. The dismissal of taxpayer’s amended petition in Case No. 49,941 operated as an adjudication on the merits within the meaning of K.S.A. 1982 Supp. 60-241; 2. To avoid manifest injustice, the court finds the decision reached in Case No. 49,941, only as it pertains to the dismissal of taxpayer’s amended petition, should be vacated and' set aside in accordance with K.S.A. 60-260(h)(6); 3. The Board of'Tax Appeals', sitting as the State Board of Equalization, is not precluded from considering a tax refund issue pursuant to K.S.A. 79-1701 et seq.;' 4. It was not necessary for taxpayer to present the tax refund issue béfore the county board prior to seeking relief from BOTA; 5. The BOTA’s order of refund to taxpayer was made on the basis of substantial and competent evidence and the court agrees with BOTA that any refund due and owing to taxpayer should be made or credited to' succeeding tax liabilities in accordance with the decision rendered in the BOTA order in Case No. 68,767 in the District Court of Johnson County, Kansas; 7. The Board of Tax Appeals, in denying taxpayer’s appeal from the county board, was not arbitrary, capricious, or unreasonable. After a careful analysis of the reasons given by the district court in the portions of its memorandum opinion, set out above, we have concluded that the opinion assigns sound and controlling reasons for its order and judgment and effectively answers the questions raised and argued on this appeal. We know of no good reason why this opinion should be burdened with extended discussion and consideration of contentions which have already been correctly disposed of in the trial court’s memorandum decision. We approve the district court’s disposition of the case as set forth above. On the issue óf res judicata and the trial court’s setting aside the order of dismissal in the protest case (No. 49,941), we wish to point out that at the time that Judge Shankel entered his order of dismissal of Capitol Federal’s amended petition on August 17,1976, the county board of equalization had already entered its administrative decision granting a 13% reduction in the 1976 assessment and the matter was already on appeal to BOTA. At that time, the protest action was in fact subject to the prior determination of the county board of equalization in the equalization proceeding. Hence, the order of the district court setting aside the order of dismissal under K.S.A. 60-260(h)(6) was entirely appropriate. We also wish to emphasize that the decision of the district court in this case entered on April 14, 1982, did not involve an interpretation of the amendments to K.S.A. 79-1701a, K.S.A. 79-2005, and K.S.A. 79-1606 enacted by the 1982 legislature. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Holmes, J.: Southwestern Bell Telephone Company (Bell) has appealed from a judgment of the district court which affirmed an administrative order of the State Corporation Commission (KCC) in a proceeding wherein The Boeing Company (Boeing) sought relief from the application of certain tariffs for service rendered to Boeing at its military aircraft complex at Wichita. The Boeing complex at Wichita covers several acres of land and is divided into three major segments by Oliver Street and its intersection with MacArthur Road. Attached as an appendix is a map or drawing of the area. The portion designated “A” includes the general administration building, along with others, and houses the main telephone service equipment for the complex. Service by Bell to portion “A” is charged at what is called an “on-premises” rate while the connecting service to areas “B” and “C” is charged at the “off-premises” rate. The amount charged by Bell under its adopted tariffs is considerably more for “off-premises” service than for the “on-premises” service. Boeing filed a formal complaint with the KCC contending that the off-premises rate being charged for areas “B” and “C” was improperly applied and that the on-premises rate applied to the entire complex. The KCC agreed, and upon appeal, the district court affirmed the KCC order. Bell has appealed that decision. At the outset it might be well to again set out the appropriate scope of review as provided by the controlling statute, K.S.A. 66-118d. The statute provides, in part: “Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the original order or decision or the order or decision on rehearing inquired into and determined, and the court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable.” (Emphasis supplied.) The judicial scope of review in the district court and on appeal is limited to the determination of the lawfulness and reasonableness of the KCC order. It has been generally held that a finding of unlawfulness under various administrative appeals statutes applies to the procedural aspects of the proceedings before the agency and the determination of whether the action taken was within the authority of the agency. City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. 149, Syl. ¶ 4, 652 P.2d 717 (1982); Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 511, 561 P.2d 779 (1977). There is no contention in this case that the KCC order suffered any procedural infirmity or was beyond the authority of that agency to address. The KCC and the district court based their decisions upon an interpretation of what constitutes a “public highway” as defined in the Bell tariff under attack. The Bell tariff on file with the KCC since 1953 defines premises to be: “PREMISES: “B. All of the buildings occupied by the same customer, provided that: 1. All of the buildings are located on the same plot of ground which is not intersected by a public highway. NOTE: A public highway is considered to mean a vehicular thoroughfare which is governmentally owned.” (Emphasis added.) Service to all stations on the premises are billed at one rate. If some of the customer’s stations are off-premises, as defined by the tariff, then a different rate applies. Bell has considered Oliver Street and MacArthur Road to be governmentally owned vehicular thoroughfares and has thus charged Boeing at an off-premises rate for extension telephone service to the areas east of Oliver Street and south of MacArthur Road. Public utilities in this state, including Bell, are required to file their tariffs with the KCC. K.S.A. 66-108. Rates, fares, tolls, charges, etc. exacted by a public utility from its customers are required to be just, reasonable, not unjustly or unreasonably discriminatory and not unduly preferential. K.S.A. 66-107; 66-110. Tariffs are those terms and conditions which govern the relationship between the utility and its customers. Tariffs may be and usually are initially the handiwork of the regulated utility. Carter v. American Telephone & Telegraph Company, 365 F.2d 486, 496 (5th Cir. 1966). Tariffs duly filed, however, generally bind both the utility and the customer. Teleco, Inc. v. Southwestern Bell Telephone Co., 511 F.2d 949, 953 (10th Cir. 1975). Tariffs filed with regulatory agencies must comport with any conditions, schedules and provisions authorized by the agency and amended tariffs and schedules of rates are not effective unless approved by the KCC. Sunflower Pipeline Co. v. Kansas Corporation Commission, 3 Kan. App. 2d 683, Syl. ¶¶ 4-7, 600 P.2d 794 (1979). Tariff approval is not given in “desultory fashion or through routine procedures,” but must be based upon investigation and hearing at least when the proposed tariff changes existing tariffs. Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, Syl. ¶ 6, 426 P.2d 60 (1967); K.S.A. 66-117. It is the position of Boeing that the Note in the Bell tariff precludes it from applying the off-premises rate to the Boeing complex. While no one could argue that Oliver Street and MacArthur Road are not public highways and vehicular thor oughfares, Boeing contends they are not “governmentally owned” and therefore all the buildings on, and services to, the Boeing Wichita complex are on one plot of ground and are subject to the on-premises rate for telephone service. Oliver Street and MacArthur Road came into being as “public highways,” by virtue of the Law of Kansas, 1872, ch. 181. That act declared, “That all section lines in the counties of Republic, Jefferson, Cloud, McPherson, Butler, Montgomery, Chase, Mitchell, Osborne, Miami, Sedgwick, Sumner, Neosho, Cherokee, Labette and Crawford be and are hereby declared public highways.” The common law of this state, however, has declared for many years that such public highways only grant an easement to the public on the land. The fee title, according to the vintage case of Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603 (1873), is never “owned” by the government but continues vested in the abutting landowner(s). In Beckwith the court held: “In this state it would seem that by the laying out and establishing of a road or highway the public acquire only an easement in the land. The fee in the land never passes to the public, but remains in the original owner.” Syl. ¶ 2. In J & S Building Co. v. Columbian Title & Trust Co., 1 Kan. App. 2d 228, 563 P.2d 1086 (1977), the Court of Appeals recognized the distinction between public highways in which the public merely had an easement and those in which the public, through the government, owns fee title. The court .stated: “The distinction to be drawn between common law dedication on the one hand and statutory dedication on the other was recognized early in the law of this state as illustrated in two cases decided in 1873. In Comm’rs of Shawnee County v. Beckwith, 10 Kan. 603, a non-platted, non-city highway was held to be owned in fee by the adjoining landowners, but in Atchison & N.R. Co. v. Garside, 10 Kan. 552, the fee of a street dedicated under what is now K.S.A. 12-406 was said to vest ‘absolutely’ in the county. It has long been established that the fee of a statutorily dedicated street vests in the county in trust, while control of the street rests in the city. (Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610.)” p. 234. Thus, it is obvious that the fee title to public highways in Kansas may or may not be governmentally owned, depending upon the circumstances which established the highway. The KCC based its order on the finding that “governmentally owned” as used in the Boeing tariff could only apply to the fee ownership as contemplated by the common law. Two experts, both prominent real estate attorneys in Wichita, testified at length about the title to the Boeing real estate. Both were of the opinion that as Boeing owns the property on both sides of Oliver Street and MacArthur Road, the bare fee simple title to the property occupied by the highways was vested in Boeing. The expert witness for Bell, however, was of the opinion that “governmentally owned” as used and contemplated in the Bell tariff could and did apply to something other than fee simple title to the property. The controlling question before this court is the reasonableness of the construction applied to the Bell tariff by the KCC. While we have found no Kansas cases which speak to the rules of construction in interpreting public utility tariffs, authorities from other states are generally in accord that such rules are similar to those adopted for the construction of statutes. The KCC in determining that the public highways running through the Boeing complex were not governmentally owned relied solely upon one isolated phrase contained in K.S.A. 77-201 Second. K.S.A. 77-201 sets forth general rules to be followed in the construction of statutes. It provides in part: “Second. Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.” In its order the KCC made, inter alia, the following findings.: “9. The testimony at hearing served to narrowly focus the issue before the Commission in this proceeding. The Bell tariff for on-premises Private Line Service, (Private Line Service Tariff Section 1.5, 5th Revised Sheet 21, ‘Definitions’) reads in pertinent part: Premises B. All of the buildings occupied by the same customer, provided that; 1. All of the buildings are located on the same plot of ground which is not intersected by a public highway. NOTE: A public highway is considered to mean a vehicular thoroughfare which is governmentally owned. (TR.I, p. 68) Boeing claims that all the buildings in its complex are located on the same plot of land that is owned in its entirety by Boeing. Boeing presently owns the land in fee simple subject to an interest held by the City of Wichita in connection with the issuance of industrial revenue bonds. Boeing argues that the public thoroughfares therefore cannot be governmentally owned, and the on-premises tariff should apply. Bell advances a contrary interpretation of the term governmentally owned: that the county owns the road surface and that such ownership is sufficient to warrant application of the off-premises tariff to Boeing. “10. Much simplified, the task before the Commission in determining which tariff must be applied to Boeing is to interpret the term ‘governmental ownership’ as it appears in the tariff. Kansas courts have provided little guidance for interpreting tariffs, but previous decisions of regulatory bodies and courts of other jurisdictions offer ample assistance: 1) A legally established tariff should be construed in the same manner as a statute. Coca-Cola Co. v. Atchison, Topeka & Santa Fe Ry. Co., 608 F.2d 213 (5th Cir. 1979); W. P. Brown & Sons Lumber Co. v. Louisville & N. Ry. Co., 7 F. Supp. 593 (D. Ky. 1934). Kansas does have rules for statutory construction which include: (a) words will be given their ordinary meaning, K.S.A. 77-201 Subd. 2; Stephens v. Van Arsdale, 227 Kan. 676 (1980); Lincoln Am. Cor. v. Victory Life Ins. Co., 375 F. Supp. 112 (D. Kan. 1974); and (b) a legal presumption exists in favor of the natural and popular meaning of words used in the statute, State ex rel. Schneider v. Kennedy, 225 Kan. 13 (1978). It should be noted, however, that in construing statutes words which have acquired peculiar and appropriate meaning in law shall be so construed. K.S.A. 77-201 Subd. 2. 2) Consistent with Kansas’ rules for statutory construction, tariff schedules are to be construed as a whole, including footnotes, from the ordinary and popular meaning of the words used. Raymond City Coal & Trans. Corp. v. New York Central Ry. Co., 103 F.2d 56 (1939). Special interpretations are to be used in construing words which have acquired peculiar meaning through trade usage or which have a peculiar meaning indicated by the context of the tariff. Id. 3) Tariffs should be interpreted without resort to subtle or forced language constructions. Re New York Edison Co. 5 PUR (NS) 313 (1934). 4) Tariffs should be construed consistent with the intent of the framers of the tariff. Re Eastern Airlines (C.A.B.) Docket No. 4158, April 18, 1950. Interpretation of tariffs should be reasonable and, preferably, consistent with the purpose of the tariff. Coca-Cola Co. v. Atchison, Topeka & Santa Fe Ry. Co., 608 F.2d 213 (5th Cir. 1979). 5) Ambiguities or situations where two or more tariffs are applicable should be resolved against the utility. Strickland Transportation Co. v. United States, 334 F.2d 172 (5th Cir. 1964). This rule has been applied to tariffs of electric utilities, Re New York State Electric & Gas Corp., 5 PUR NS 51 (1934), to railroads, Indiana Harbor Belt Ry. Co. v. Stern (Jacob) & Sons, 37 F. Supp. 690 (1941), and to motor carriers, Bolin Drive-A-Way Co. v. U.S., 283 F.2d 697 (1960); however, the rule has not been applied to interpret the tariff of a telephone company. “11. The pivotal rule in this instance appears to be the second rule listed above requiring the use of particular legal meanings which may have attached to the term in question. The question of ownership of roads and highways has been prevalent in Kansas Law for over 100 years, and the term ownership has acquired a particular meaning in this context. The question is now well-settled that owners of property abutting a county road — as is the case here — own all the land in the roadway subject to an easement for use as a public highway. Commissioners of Shawnee County v. Beckwith, 10 Kan. 603, 607 (1873); J. & S. Building Co. v. Columbian Title & Trust Co., 1 Kan. App. 2d 228, 232-233 (1977). Even though the ordinary layman’s understanding may be that the roads running through Boeing’s property are ‘owned’ by government (i.e., the county) (Tr.I, p. 48), the exception to the rule of ordinary interpretation must be applied here. Application of this meaning compels the conclusion that the roads in the Boeing complex are not governmentally owned because ownership rests with Boeing. Consequently, the roads intersecting Boeing’s property are not the kind of public highways that would prevent Boeing from receiving the on-premises tariff.” (Emphasis in original.) In Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980), this court stated: “Words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute.” p. 684. We are of the opinion that the KCC placed undue weight upon the application of K.S.A. 77-201 Second to the facts in this case. While it is true that the statute states that one of the rules of construction is that words which “may have acquired a peculiar and appropriate meaning in law, shall be construed” accordingly, an application of the rule which results in inconsistent and absurd results or is contrary to common usage and understanding is to be avoided. This particular element of the statute is not to be singled out and applied to the exclusion of all other rules of statutory construction which must also be considered and given appropriate weight. As pointed out by the KCC in its order, the construction placed upon the term “governmentally owned public highway” is “perhaps foreign to the layman.” Oliver Street and MacArthur Road are major thoroughfares in the Wichita area and although subject to some measure of traffic control by Boeing for the movement of its aircraft and employee traffic, they are maintained and principally controlled by the public through its appropriate governmental entity. There can be no doubt that the government owns the improvements in the roadbed and adjacent thereto and is responsible for maintenance and control of the public easement. We are of the opinion that the extent of government ownership of the public highway necessary to invoke the Bell off-premises tariff does not require and does not contemplate fee title ownership. Testimony was introduced that when it is necessary to provide services across a public highway, the expense to Bell is considerably more than that incurred in crossing a private roadway. In the case of a private roadway, the expense is borne by the owner but when a public highway or thoroughfare is crossed, the expense is borne by Bell. The reasonableness prong of judicial review in this type of case is generally satisfied when the order of the KCC is based upon substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2, 565 P.2d 597 (1977); Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 538 P.2d 702 (1975). Bell challenges the order of the KCC in this court by saying that the court has authority to substitute its judgment for that of the KCC. Bell claims that the construction of the tariff in issue is a question of law and that the court may substitute its judgment for that of the KCC on a question of law. It has been said that in regard to questions of law addressed initially by an administrative agency the court is the final authority. Richardson v. St. Mary Hospital, 6 Kan. App. 2d 238, 242, 627 P.2d 1143, rev. denied 229 Kan. 671 (1981); Ryan, Judicial Review of Administrative Action - Kansas Perspectives, 19 Washburn L.J. 423, 432 (1980). The issue before this court is strictly one of law; whether the term “governmentally owned public highway” as used in the Boeing tariff means that the government must own the fee title to the highway area or whether the public ownership of the easement subject to governmental control is sufficient. The public through its governing body has substantial ownership interests in a public highway which are generally recognized and understood by members of the public. To construe the Bell tariff in such a manner that section line roads in certain counties as specified in the Laws of Kansas, 1872, ch. 181, § 1, are not governmentally owned public highways while other roadways established by plat or other statutes are, would indeed lead to incongruous results. No such construction of the tariff is required or warranted by the ordinary rules of construction or by the specific provision of K.S.A. 77-201 Second. Such a construction of the language and tariff in question is unreasonable as a matter of law. The judgment of the district court is reversed and the case is remanded with directions to vacate or set aside the order of the KCC pursuant to the provisions of K.S.A. 66-118d. APPENDIX BOEING MILITARY AIRPLANE COMPANY A DIVISION OF THE BOEING COMPANY
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The opinion of the court was delivered by Miller, J.: This is an action for the partition of real property, the title to which is held in joint tenancy. The plaintiffs are Robert and James Hall, and James’s wife, Nina. The defendant is Beverly J. Hamilton, sister of Robert and James. Robert, James and Beverly are the owners as joint tenants of the property which is the subject of this action, a lot in Prairie Village, Kansas, upon which there is a single family dwelling. The defendant, who occupies the residence, opposed partition, and upon the entry of an order of partition by the Johnson District Court, she appeals. The issues, simply stated, are: Is joint tenancy real estate subject to involuntary partition? Did the trial court err in assessing attorney fees? The real property in question was originally owned by Newton and Maurine Hall, parents of the parties to this action. Mr. and Mrs. Hall conveyed the property by warranty deed to their three children, Robert, James and Beverly, as joint tenants with the right of survivorship and not as tenants in common, in 1969. Mr. and Mrs. Hall continued to live in the home. Mr. Hall died in January, 1973. Shortly thereafter, and at the request of Mrs. Hall, Beverly moved into the home. She resided with and cared for her mother until the mother died in December, 1980. Beverly continues to reside in the home; she refuses to consent or agree to the sale of the property, and as a result her brothers have b'een unable to either rent or sell it. The brothers commenced this action for partition of the property in May, 1981. Both sides moved for summary judgment. The trial court overruled defendant’s motion and granted plaintiffs’ motion for summary judgment. It appointed commissioners, who found that the property could not be partitioned in kind, and appraised it at $44,950. The plaintiffs jointly elected to take the property at the appraised valuation, and the court confirmed that election. It then fixed the amount of expenses to be paid out of the proceeds, including court costs, commissioners’ fees and title policy expense. Attorneys for plaintiffs sought fees of $4,444.19 and present and former counsel for the defendant sought the allowance of fees totalling $10,196.65. The trial court determined that the total of the attorney fees sought would be approximately 32% of the value of the property and that the allowance of this amount would be unconscionable and inequitable. For this reason, the court allowed total attorney fees of only $6,000 to be taxed as costs. The court directed that this amount be divided so that two-thirds or $4,000 would go for the payment of plaintiffs’ attorney fees and one-third or $2,000 would go to the payment of defendant’s attorney fees. Finally, the trial court ordered that a sheriff s deed issue to the plaintiffs. Defendant appeals from the order of partition, and from the trial court’s order reducing the amount of attorney fees claimed and dividing the reduced amount two-thirds to plaintiffs’ attorneys and one-third to defendant’s counsel. Plaintiffs cross-appeal from the order allowing attorney fees. The first issue, although divided in the briefs into several arguments, is simply whether real property held in joint tenancy may be the subject of involuntary partition. The trial court ruled that this court’s opinion in the case of Miller v. Miller, 222 Kan. 317, 564 P.2d 524 (1977), is determinative of this issue; defendant seeks to distinguish the Miller case, and contends that the trial court erred in relying upon it. In our unanimous opinion in Miller, we said: “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. “Justice Wedell, quoting from Fry v. Dewees, 151 Kan. 488, 99 P.2d 844, in Holland v. Shaffer, 162 Kan. 474, 178 P.2d 235, said: “As a general rule, a tenant in common of a fee-simple estate in real property is entitled to partition as a matter of right. Such right, however, is subject to the full power of the court to make a just and equitable partition between the parties and to secure their respective interests.” ’ (p. 479.) “He went on to say: “ . . 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 thereof 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. . . .’ (p. 480.) “A joint tenant is a cotenant owning an undivided interest in property, and partition may be had as between joint tenants to the same extent as between tenants in common. “The trial courts necessarily exercise wide judicial discretion in partition actions, but that discretion is exercisable primarily in the area of making a fair and just division between the parties. Courts may deny partition in order to prevent the remedy from becoming an instrument of fraud or oppression (Holland v. Shaffer, supra, p. 482) but we do not have that situation in the case before us. The claimed inequitable conduct of the plaintiff does not amount to fraud, and has no direct bearing upon the partition action. We conclude that the trial court did not abuse its discretion in directing partition of the property.” 222 Kan. at 320. Appellant contends that the quoted language in Miller is dicta. We do not so read the opinion. The action was one in partition; one joint tenant defaulted and another objected in part to partition; and the latter appealed from the trial court’s final order. Whether the remedy was available was not directly challenged as it is in this case, but that issue was a matter of prime importance which had to be determined before the other issues on appeal could be decided. Appellant also attempts to distinguish the Fry v. Dewees, 151 Kan. 488, 99 P.2d 844 (1940) and Holland v. Shaffer, 162 Kan. 474, 178 P.2d 235 (1947) cases, cited in the Miller opinion, arguing that they involve partition of mineral rights and thus are not applicable here.- The quoted portions, however, state general principles of law which are applicable to the issues considered in Miller, and to the case at bar. Appellant also contends that the trial court erred in relying on K.S.A. 60-1003 as establishing a “right” to partition. That statute establishes the procedure to be followed in a partition proceeding; it does not purport to establish substantive rights to partition. The right of a joint tenant, however, to sever his interest, to dispose of his share by conveying it to a third person, or to seek partition under the appropriate statutes, is widely recognized. Judge Gard, in his Kansas Code of Civil Procedure 2d Annot. § 60-1003 (1979), makes the following observations on the issue presented here: “Doubt has been expressed among lawyers now and then as to the use of judicial partition between joint tenants of real property, and the question raised of whether the joint ownership must first be served by mutual consent or by a conveyance of one of the joint owners. There has never been any real doubt on this matter, and a partition action will lie as between joint owners, both under this statute and under the former law. See Berry v Berry’s Estate, 168 K 253, 212 P2d 283, quoting 14 Am Jur (1st ed) § 14, Cotenancy. See 20 Am Jur 2d, Cotenancy and Joint Ownership § 20.” p. 41. In Berry v. Berry, 168 Kan. 253, 212 P.2d 283 (1949), we said: “The authorities are virtually unanimous in agreeing that a joint tenant may at his pleasure dispose of his share and convey it to a stranger and that such conveyance will result in a severance or termination of the joint tenancy. McDonald v. Morely, 15 Cal. (2d) 409, 101 P.2d 690, 129 A.L.R. 810, and Annotation commencing at 129 A.L.R. 813. See, also, 14 Am. Jur., Cotenancy, § 14, p. 86, where it is said: “ ‘A joint tenancy may be severed, either voluntarily, as by a partition of the property, or a conveyance of the interest of any joint tenant, or involuntarily, as by an execution sale of any interest that is subject thereto.’ ” 168 Kan. at 256. William L. Burdick, in his Law of Real Property (1914), states the rule as follows: “Joint estates may be so created that partition of them cannot be had; but, in absence of such a provision, any joint estate, except estates in entirety, may be divided at the suit of one of the tenants without the consent of the others.” p. 274. (Emphasis supplied.) Estates in the entirety were abolished in Kansas in 1891 (see K.S.A. 58-501 and G.S. 1935, 22-132). In the case at hand, there is no indication that the instrument creating the joint tenancy contained any provisions restricting the rights of the joint tenants to seek partition of the property. 20 Am. Jur. 2d, Cotenancy and Joint Ownership § 20, discusses partition of joint tenancy real property as follows: “A joint tenancy terminates where a complete partition of the property has been obtained, whether by decree of court or otherwise. . . . [T]he mere commencing of an action for partition of joint-tenancy property does not serve to terminate the tenancy; only the judgement or decree has that effect.” ■ The general rule is stated in 68 C.J.S., Partition § 28: “Joint tenancies and tenancies in common are subject to partition. Partition can be had only of property which is held in cotenancy, and there can be no partition of property which is not held in joint tenancy, tenancy in common, or coparcenary.” In support of these statements that partition can be had of property held in joint tenancy, cases are cited from eighteen states; we have not found any current authorities to the contrary. See Yunghans v. O’Toole, 199 Neb. 317, 258 N.W.2d 810 (1977); Nichols v. Nichols, 43 Wis. 2d 346, 168 N.W.2d 876 (1969); and Stout v. Stout, 564 S.W.2d 89 (Mo. App. 1978), all of which support the rule last stated above. Appellant asserts that a holding that a joint tenant may force partition upon unwilling cotenants will be responsible for all sorts of rifts in the social fabric, but appellant cites no authority to support that argument. On the contrary, given the facts presented at bar, it is clear that partition represents the only equitable solution. Partition in this case accomplishes the goal of avoiding “compelling unwilling persons to use their property in common.” It also prevents one joint tenant from enjoying the benefit of the property to the practical exclusion or detriment of the others. It is undisputed that any joint tenant may sever his or her joint tenancy interest in real property by conveying the interest to a third person, or by mortgaging the joint tenancy interest, or — in some jurisdictions — by leasing that interest. Once the joint tenancy interest is severed, a tenancy in common results. Requiring a joint tenant to sever the joint tenancy interest before bringing an action in partition would serve no useful purpose, and it is often said that the law will not require the doing of a useless act. Severance is accomplished in the partition action by the court’s order of partition; we see no need to require a prior severance. We adhere to our ruling in Miller, hold that joint tenancy interests in real property are subject to involuntary partition, and conclude that the trial court did not err in ordering partition of the jointly held real estate. We now turn to the matter of the determination and assessment of attorney fees. K.S.A. 60-1003(c)(5) makes the following provisions regarding attorney fees in partition actions: “The court making partition shall tax the costs, attorney fees and expenses, including an allowance for preparation or bringing up to date of an abstract of title or title insurance to the real estate involved in the action, which may accrue in the action, and apportion the same among the parties according to their respective interests, and may award execution therefor, as in other cases.” As we noted earlier, the trial court reviewed the attorney fees claimed by the parties and, though not finding the fees claimed excessive or unreasonable, found that it would be unconscionable and inequitable to allow the assessment of the total fees requested against the property. The court also found that “the prosecution of this action by the plaintiffs and its defense by the defendant, all cotenants, and even though adversarial in nature, was still for the common benefit of all the cotenants, both plaintiffs and defendant.” The court then fixed the fees and allowed them in the stated amounts “as a matter of equity and good conscience.” Defendant objects to the court’s ruling, arguing that the statute imposes a mandatory obligation upon the trial court to assess all reasonable attorney fees against the partitioned property. Since the court did not find the fees unreasonable, defendant concludes that the trial court was without power to adjust the fees. Defendant also argues that the two-thirds, one-third division of the fee award is contrary to the statute. Further, defendant argues that if the court was correct in reducing the amount claimed for attorney fees, the court should have prorated the reduced amount upon the basis of the attorney fees claimed, and thus defendant’s counsel should have been awarded approximately 70% of the reduced amount, leaving approximately 30% to plaintiffs’ counsel. Alternatively, defendant argues that it would have been more equitable to divide the reduced amount equally between plaintiffs’ attorneys and defendant’s attorneys rather than the two-thirds, one-third division adopted by the trial court. Plaintiffs, by way of cross-appeal, also argue that the trial court’s order regarding attorney fees was erroneous. They contend that the common benefit doctrine is controlling, and that only those attorneys whose services were for the common benefit of all cotenants should be compensated from the common fund. A review of the law in this area is helpful in resolving these issues. We have held many times that, “The reasonable value of attorneys’ fees rests within the sound judicial discretion of the trial court and its determination will not be disturbed in the absence of an abuse of discretion.” Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, Syl. ¶ 10, 443 P.2d 681 (1968); Brown v. Continental Casualty Co., 209 Kan. 632, 641, 498 P.2d 26 (1972). Trial courts have often been held to be experts on the subject of the value of legal services, and the judge may apply his or her own knowledge gained from professional experience in determining the value of the legal services rendered. City of Wichita v. Chapman, 214 Kan. 575, Syl. ¶ 6, 521 P.2d 589 (1974). Syllabus ¶ 7 of that opinion is also particularly applicable. It reads: “The circumstances to be considered in determining the amount of a reasonable attorney fee are the amount and character of the services rendered; the labor, time and trouble involved; the nature and importance of the litigation or business in which the services were rendered; the responsibility imposed; the amount of money or the value of the property affected by the controversy, or involved in the employment; the skill and experience called for in the performance of the services; the professional character and standing of the attorney and the results secured.” Of the cases decided under K.S.A. 60-1003(c)(5) and its predecessors, we should consider Sarbach v. Newell, 35 Kan. 180, 10 Pac. 529 (1886), a partition action in which the plaintiff objected to the order directing payment of costs and attorney fees. The plaintiff was the owner of a 2/11 interest in the property, without the enhancement of a stone building thereon; defendants owned the 9/11 interest, including the enhancement attributable to the building. The trial court ordered that the amount attributable to the stone building be first paid out of the proceeds to the defendants; that the attorney fees and costs be then paid out of the remaining proceeds; and that the balance remaining be then distributed to the parties according to their respective interests. Plaintiff appealed, contending that the expenses, costs and attorney fees should be paid first out of the entire sale proceeds, and that the remainder should then be divided according to the interests of the parties. The amount allowed as attorney fees was ordered divided equally between attorneys for the plaintiff and the defendants; there was no objection on appeal to that portion of the trial court’s order. The Supreme Court reversed. Justice Valentine, speaking for a unanimous court, said: “The statute relating to costs in actions for partition reads as follows: “ ‘Sec. 628. The court making partition shall tax the costs, attorney’s fees and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, and may award execution therefor, as in other cases.’ (Civil Code, § 628.) [G.S. 1868, Ch. 80, § 628.] “We think the claim of the plaintiff is substantially correct, both under the statute and under the order of the supreme court made at its January term, 1833. (Sarbach v. Newell, 30 Kas. 104.) The costs, attorney’s fees and expenses should first be paid out of the entire proceeds of the sale of the property, and then the parties should receive their respective shares out of the remainder of the proceeds. By such a distribution and apportionment, the costs, attorney’s fees and expenses, as well as the amounts to be paid to the parties, would be apportioned ‘among the parties according to their respective interests.’ ” 35 Kan. at 184-85. In Eresch v. Guipre, 142 Kan. 747, 51 P.2d 1016 (1935), this court discussed the common-benefits doctrine but did not actually base its decision upon it. There, the plaintiff brought the action to partition some 560 acres of land in Cloud County and a quarter section of land in Mitchell County. The trial court found that the Mitchell County land was not subject to partition but was owned by one of the appellees, Andrew Guipre. Title to that quarter section was quieted in his name. The remaining or Cloud County land was partitioned. All costs were ordered apportioned among the parties in accordance with their respective interests. Appellees objected to that portion of the order which appor tioned that part of the costs incurred in litigating the question as to the ownership of the Mitchell County land. This court said: “R.S. [1923,] 60-2113 provides: “ ‘The court in making partition shall tax the costs, attorney fees and expenses which may accrue in the action, and apportion the same among the parties according to their respective interests,’ etc. “In discussing this section of the code, it is said in Dassler’s Kansas Civil Code, Annotated (2d ed.): “ ‘The costs, attorney fees and expenses made by one claiming an interest in the property and failing to establish same, should not ordinarily be allowed and taxed against the property involved. The basic principle that should govern in the allowance and apportionment of costs, attorney fees and expenses, to be paid from the property or its proceeds, would seem to be that the same be such as were necessarily incurred for the benefit of the cotenants, in order to effect a partition of the property. Outside of such, the costs, attorney fees and expenses should be taxed and paid as in other civil actions.’ (p. 959.) “None of our decisions are cited in support of the text, although many cases supporting the statement may be found in the annotation in 73 A.L.R. 21, 26, where the common-benefit doctrine and the effect of the title at issue are discussed. (See Sarbach v. Newell, 35 Kan. 180, 10 Pac. 529, which treats costs in partition actions.) “It will be observed that as to the Mitchell county land there was no partition, and so far as these lands are concerned, appellants had no title. Had the action been brought solely to try title, appellants would not have been entitled to costs unless they had prevailed. (R.S. [1923] 60-3704, 60-3705.) We are of the opinion that the costs incurred in determining the title to the Mitchell county lands should be adjudged in favor of appellees and against appellants.” 142 Kan. at 753-54. We have not failed to review the cases from other states cited by counsel, but we do not find them persuasive. The common-benefit doctrine is the subject of many varying interpretations based upon common law and statutory differences between the states. Each jurisdiction has adopted its own rules for the allowance or refusal to allow attorney fees in partition actions, and we see no compelling reason to adopt or base our holding here upon the rules adopted elsewhere. The allowance of attorney fees in a partition action in this state is a matter resting in the sound judicial discretion of the trial court. The court is not required, by our statute, to allow every fee which is claimed; the court must exercise its discretion in the fixing and allowance of fees. A trial court is not required to allow — as the trial court below declined to allow — fees in amounts which it finds to be unconscionable and inequitable. That portion of K.S.A. 60-1003(c)(5) which requires the apportionment of fees and costs “among the parties according to their respective interests” does not require the trial court to fix and allow the fee of an attorney solely upon the fractional interest the attorney’s client has in the partitioned property; that is but one factor to be considered. Similarly, the common benefit attributable to the services is but a single factor to be considered. In fixing and allowing reasonable, fair and just attorney fees in partition actions, the trial courts should take into consideration many factors. Among others, these frequently include the facts of the particular case; the amount of work reasonably required to be done by the attorneys; the benefit common to all of the parties or co-owners as a result of the work of counsel; the amount and character of the services rendered; the labor, time and trouble involved; the nature, difficulty and importance of the issues; the skill and experience called for in the performance of the services; the professional character and standing of the attorneys; the extent and value of the property; the interests of the respective parties; the responsibility necessarily imposed upon and shouldered by the respective attorneys; and the results secured. Once fees, costs and expenses are determined, payment out of the entire proceeds of sale of the property, as approved in Sarbach, ordinarily will effectively apportion the costs “among the parties according to their respective interests.” We note here that the partition statute grants to the trial court the “full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties.” K.S.A. 60-1003(d). Resting the matter of attorney fees in the trial court’s discretion is consistent with the provisions of this statute. . The experienced trial judge below expressed his recognition of a number of the factors listed above; and no doubt considered many others. We find no abuse of discretion. The judgment is affirmed.
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The opinion of the court was delivered by Herd, J.: This is an action to quiet title to real estate. The appeal is from the trial court’s order quieting the title in favor of the landowner by holding an oil and gas lease thereon had terminated due to nonproduction. Edna Pray is the landowner. In 1977 she entered into a contract for deed with Frank Carney pursuant to which Mr. Carney would purchase the land in question. Previously, on August 7, 1973, Edna Pray and Premier Petroleum, Inc., had executed an oil and gas lease covering Pray’s property. The lease contained the standard provisions with a primary term of two years “and as long thereafter as oil and gas, or either of them, is produced from said land by the lessee, or the premises are being developed or operated.” The lease also contained a “shut-in” royalty clause which provided: “The lessee shall pay lessor as royalty Vs of the proceeds from the sale of gas as such at the mouth of the well where gas only is found and where such gas is not sold or used, lessee shall pay or tender annually at the end of each yearly period during which such gas is not sold or used as royalty, an amount equal to the delay rental provided in the next succeeding paragraph hereof, and while said royalty is so paid or tendered this lease shall be held as a producing lease under the above term paragraph hereof . . . .” In January of 1974, during the primary term of the lease, Premier began drilling operations on the property. The well, Pray No. 1, was completed in March of 1974. On August 7, 1975, Premier filed an “Affidavit of Production” stating “a gas well producing or capable of producing gas in paying quantities” had been completed on the Pray property. Premier’s efforts to market the gas from Pray No. 1 were fruitless since it was the only gas well in the area and was three miles from a gas line. This prompted Premier to avail itself of the shut-in royalty provision. Each year through 1979 shut-in gas royalties were paid. In 1980 and 1981, however, Carney and Pray refused to accept the shut-in royalty payments. Carney and Pray filed this quiet title action in June of 1980 on the theory the gas well was not capable of producing in paying quantities because the cost of connecting to the pipeline rendered it unprofitable. The trial court agreed and ruled in favor of the appellees, holding the lease had expired by its own terms. This appeal followed. The sole issue here is whether the cost of connecting a gas well to a pipeline can be used in determining the well’s capability of producing in paying quantities. This case pertains to a typical habendum clause of an oil and gas lease. Under such a habendum clause oil or gas must be produced in “paying quantities” during the primary term, in this case two years, in order to perpetuate the lease. Although the phrase “in paying quantities” does not specifically appear in oil and gas leases, it is implicitly a part of the habendum clause. Texaco, Inc. v. Fox, 228 Kan. 589, 592, 618 P.2d 844 (1980); Wrestler v. Colt, 7 Kan. App. 2d 553, 555, 644 P.2d 1342 (1982). Thus, the presence of oil or gas producing in “paying quantities” within the primary term is a condition precedent to the perpetuation of the lease. Problems inherent in the production of gas impose additional burdens on the lessee. Frequently, the lessee discovers gas in paying quantities, but because of no pipeline in the vicinity has no market and is unable to produce the gas. If no market is available by the end of the primary term a strict application of the habendum clause would terminate the lease for lack of production. This problem has its origin in the physical characteristics of natural gas. Unlike oil, gas cannot be economically stored above ground or transported by truck. Pipeline facilities are required to deliver gas to market. See 4 Kuntz, Law of Oil & Gas § 46.1 (1972), and 2 Summers, Oil & Gas § 299 (rev. ed. 1959). As a remedy gas leases include a “shut-in” royalty clause. This enables the lessee, under appropriate circumstances, to keep a nonproducing lease in force by the payment of shut-in royalties. Absent the shut-in royalty provision venture capital to explore for gas in new areas, known as wildcatting, would not be available. The future supply of gas is dependent upon this risky and expensive business. Even though the construction of a shut-in royalty clause depends on the specific terms of the lease in question, certain general characteristics of shut-in royalty clauses should be noted. First, such clauses actually modify the lease’s habendum clause to provide for a type of “constructive production.” Davis v. Laster, 242 La. 735, 756-57, 138 So. 2d 558 (1962). As such they become an integral part of the habendum clause of an oil and gas lease. See 4 Kuntz, Law of Oil & Gas § 46.6(b) (1972). Second, although initially devised to prevent a lessee from having to forfeit his lease at the end of the primary term, the shut-in royalty clause actually works for the benefit of both lessor and lessee. In Miller v. Nordan-Lawton Oil and Gas Corp. of Texas, 403 F.2d 946, 948 (5th Cir. 1968), Judge Griffin Bell stated: “Shut-in or in lieu royalties were devised to benefit both the lessor and lessee from the standpoint of insuring exploration for and the production of minerals in paying quantities so that both parties may reap the expected benefits. A clause embracing such a provision is for the purpose of protecting the lessor where there are wells capable of producing in paying quantities but where no market can be found for such production.” Similarly, the fact the lease is held by payment of shut-in gas royalties does not excuse the lessee from his duty to diligently search for a market and to otherwise conduct himself as would a reasonable and prudent lessee under the same or similar circumstances. Indeed, the implied covenant to reasonably develop the leasehold is applicable. Masterson, The Shut-in Royalty Clause in an Oil and Gas Lease, 4 Rocky Mtn. Min. L. Inst. 315, 330 (1958). Here, however, the complaint against the lessee is not for breach of these provisions. In fact, the evidence indicates the lessee diligently searched for a market. Finally, although the shut-in royalty clause does not normally specify the shut-in gas well must be capable of producing in paying quantities, such a requirement is implied. As noted, the shut-in royalty clause is a savings clause allowing for constructive production. Such clauses provide that upon payment of the shut-in royalty it will be considered gas is being produced within the meaning of the habendum clause. In order to achieve the desired result, namely a profit, production, whether actual or constructive, must be in paying quantities. 4 Kuntz, Law of Oil & Gas § 46.4(e) (1972). This court has had many chances to examine the phrase “paying quantities” within the meaning of the standard habendum clause of an oil and gas lease. Most recently, in Texaco, Inc. v. Fox, 228 Kan. at 592, the court held the term was synonymous with “commercial quantities” as found in the thereafter clause of the mineral reservation in a real estate deed. Later, quoting Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, Syl. ¶ 3, 553 P.2d 885 (1976), the court specifically defined “paying quantities”: “ ‘It is generally accepted that the phrase “in paying quantities” in the “thereafter” provision (extension clause) of an oil and gas lease’s habendum clause means production of quantities of oil and gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs, or equipping costs, are never recovered, and even though the undertaking as a whole may thus result in a loss to the lessee.’ ” 228 Kan. at 593. In Reese the court recognized there were two possible constructions of the term “paying quantities.” The first is used when determining whether there has been a breach of express or implied covenants to develop. In that situation, the court said, “paying quantities” means oil or gas has to be found in such quantities “that an ordinarily prudent person, experienced in the business of oil or gas production, would, taking into consideration the surrounding conditions, expect a reasonable profit over and above the entire cost of drilling, equipping and operating the well or wells drilled.” 220 Kan. at 312. On the other hand, where “paying quantities” is used in the habendum clause to express a condition upon which the lease might continue, the definition quoted in the Texaco case is used. In that situation “paying quantities” “refers to operations of the lease after drilling has been accomplished during the primary term and production has been established. From the standpoint of grammatical construction of the lease and from the standpoint of the purpose of the habendum clause, the cost of drilling and preparing a well for production, and the ultimate profit to be expected from any particular well, are not taken into account in determining whether or not the lease is producing in paying quantities. “Expenses which are taken into account in determining ‘paying quantities’ include current costs of operations in producing and marketing the oil or gas. Most of the costs so incurred are easily identified as being direct costs, and present no difficulty.- In this connection the lessee is held accountable for the production of the lease as a prudent operator working for the common advantage of both the lessor and the lessee. All direct costs encountered, whether paid or accrued, in operating the lease as a prudent operator are taken into account. These direct costs include labor, trucking, transportation expense, replacement and repair of equipment, taxes, license and permit fees, operator’s time on the lease, maintenance and repair of roads, entrances and gates, and expenses encountered in complying with state laws which require the plugging of abandoned wells and prevention of pollution.” 220 Kan. at 312-15. Here the trial court applied the test set out in Reese and held the lease in question terminated by its own terms. He reasoned: “10. In order to market the gas from this well, Defendants would have to spend additional money for surface equipment, constructing a pipeline to the market and installing a compressor thereon and would incur additional expenses for operating the well, the cost of which would exceed the gross revenues that could be received from selling all of the recoverable gas located under said Lease. (Testimony of Messrs. Watson, Robinson and Myers). “11. Since the cost of operating this Lease and marketing the gas exceed the gross revenues from the sale of said gas, said well is not capable of producing gas in commercial quantities and the Lease cannot be perpetuated by the payment of shut-in gas royalties.” The real bone of contention is whether the cost of building a pipeline to transport the gas from Pray No. 1 should be included in considering whether the well is capable of producing in paying quantities. Appellees’ expert witness, R. Douglas Myers, testified it would cost approximately $80,000 per mile to lay a three-inch pipeline from Pray No. 1 to the nearest market, which is a Getty Oil pipeline three miles away. He also testified the cost of compression equipment on this pipeline would be approximately $118,000. Appellants’ expert, Dale Robinson, offered another opinion. He testified that considering only normal operating expenses the annual working interest profit on Pray No. 1 would be approximately $134,000.00 per year, almost twenty-five times that of a marginal well. Indeed Mr. Myers and appellees’ counsel both agreed if normal operating expenses were taken into account the well would produce in commercial quantities. However, if the costs of transporting the gas from Pray No. 1 to the nearest market are figured against the lessee the well is not capable of producing in paying quantities. Was it proper for the trial court to include the cost of transporting the gas to the nearest market in determining whether the well was capable of producing in paying quantities? We think not. First, it is contrary to normal procedure. Mr. L.A. Watson, a witness for both parties, testified that 85% of the time the purchaser of the gas brings the transportation line to the well. Further, the trial court’s holding essentially negates the effectiveness of the shut-in royalty clause included in this lease. Involved here is precisely the type of situation contemplated by the clause — a well capable of producing a profit is drilled but for the time being no market exists. This is much different from cases such as Reese where no shut-in royalty clause is involved and a determination of production in paying quantities can be made simply by looking at the performance of the well. See also Kahm v. Arkansas River Gas Co., 122 Kan. 786, 253 Pac. 563 (1927). A case such as the one at bar, on the other hand, necessarily involves some speculation. This speculation should not include the cost of taking the gas to market when the parties have foreseen in the lease the possibility a market might not exist. We hold capital expenditures for building a pipeline are improper considerations for determining whether a gas well will produce in paying quantities under a shut-in royalty clause. Pipeline-costs fall in the same category as costs of drilling and equipping a well and according to Reese should not be taken into account in making such a determination. The judgment of the trial court is reversed.
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The opinion of the court was delivered by Prager, J.: This case arose out of a landlord-tenant dispute in which the landowner defendant, Heinz C. Wallace, without compliance with statutory notice requirements and during the tenant’s absence from the premises, nailed shut the door to the tenant’s house and cut off the electricity. The tenant, Claude Geiger, sued the landlord for actual and punitive damages and received a judgment from the trial court sitting without a jury in the amount of $1,168 actual damages and $1,000 punitive damages. The landlord appealed. The only evidence presented in the case was the testimony of plaintiff, Claude Geiger, and of defendant, Heinz C. Wallace. At the end of the trial, the matter was taken under advisement and briefs were filed by counsel. In due course the trial court filed a Memorandum Decision which contained the following findings: “That the testimony of the plaintiff is generally accepted by the Court and the Court disregards as not being acceptable to this Court the testimony of the defendant, Heinz C. Wallace. The Court can just not believe the testimony of said defendant. “This is a landlord-tenant case and oral tenancy was created when the plaintiff on or about April 3, 1982 rented an apartment for himself, his wife, and two children in Junction City, Kansas and the defendant was in charge of said apartment. The plaintiff as tenant paid $160.00 as the first month’s rent and an additional $80.00 as security deposit. The plaintiff then with his family took possession. Later and about May 2, the rent for May not being paid, the defendant for the landlord placed a cardboard notice on the front door of the apartment advising the tenant that he should visit with the landlord about payment within the next twenty-four hours. The physical evidence of this notice was never introduced into evidence at the trial. Plaintiff did introduce as plaintiff s exhibit #1 an eviction notice as posted by the Sheriff probably on May 6, 1982 which notice as prepared by the defendant told the tenant his rent must be paid in full by May 5, or he would be evicted from the premises. “On or about the morning of May 6,1982 the tenant, his wife, and children left the apartment premises around mid-morning and did not return to said premises until about evening of the same day. The tenant thereupon found the apartment premises had been denied him in that the front door was nailed shut from the inside. The tenant then somehow got to the second floor area and thru a balcony was able to obtain entry into his apartment. He removed some things and then left with his family and after about an hour and a half time had lapsed he found another location for he and his family to use as living quarters. The electricity to the first apartment had been turned off and these services and their use were under the direct control of the defendant. “Further as a part of the original rental understanding which Was oral the plaintiff was to pay utilities as used in his apartment which were under the name of the defendant landlord and the defendant introduced certain claimed utility bills at the trial however some of them showed that they were for services to May 21, and yet the plaintiff as tenant lived in the apartment dwelling with his family only until May 6, 1982. “The Court further finds that under the claim of Count #1 of plaintiff s petition the Court finds that the landlord caused diminished electrical services to be furnished to this apartment and that the landlord through the defendant excluded the plaintiff from the said rental premises without legal cause or without legal action all in violation ofK.S.A. 58-2563 and that the plaintiff is under Count #1 awarded damages in the sum of $1,000.00 for having been forced out of his apartment with his family at a time after dark in early May, 1982. The Court grants the plaintiff further relief in that under Count #1 he should have had the utility deposit of $80.00 returned to him and the Court grants him damages in addition of $120.00 as provided by K.S.A. 58-255(c) less $32.00 rent for the first six days rent in May making a total award under Count #1 of $1,168.00. “Under Count #2 the plaintiff requests punitive damages and the Court does award the plaintiff $1,000.00 punitive damages based upon the evidence be lieved by the Court that the landlord or his representative nailed the front door of the plaintiffs apartment shut from the inside and for the further reason of reduced electrical services the Court feels that these punitive damages must be awarded to let the landlord know that such actions will not be accepted by the Court and especially where the defendant says that he looks after or has control of rental units numbering eight or nine and that the defendant should be and he is assessed the costs of this action.” The first point raised by the defendant on the appeal is, in substance, that the plaintiff failed to prove the allegations of his petition by a preponderance of the evidence and that the trial court erred in believing the testimony of the plaintiff rather than the testimony of the defendant. It was undisputed that the defendant never gave the plaintiff any statutory three-day notice as required by K.S.A. 1982 Supp. 58-2564(h) which provides in substance that the landlord may terminate the rental agreement if rent is unpaid when due and the tenant fails to pay rent within three days after written notice by the landlord of nonpayment and such landlord’s intention to terminate the rental agreement if the rent is not paid within the time provided therein. There is evidence in the record to support the findings of the trial court that the defendant, his wife, and his children left the apartment premises on the morning of May 6,1982, and returned to the premises that evening to find that the defendant had nailed the door shut from the inside and turned off the electricity. There was thus substantial competent evidence to support the findings of the trial court that the defendant, as landlord, unlawfully excluded his tenant, the plaintiff, from the premises and that he had willfully diminished services to the tenant by causing the termination of electrical services as prohibited by K.S.A. 58-2563 which provides as follows: “If the landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount not more than one and one-half (1 !4) months’ periodic rent or the damages sustained by the tenant, whichever is greater. If the rental agreement is terminated, the landlord shall return that portion of the' security deposit recoverable by the tenant under K.S.A. 58-2550.” (Emphasis supplied.) Thus the only real fact question presented to the trial court was the amount of damages which should be awarded to the plaintiff under all the circumstances. The defendant’s second point on the appeal is stated by the defendant as follows: Whether K.S.A. 58-2563 allows for damages above and beyond those statutorily delegated under the Kansas Residential Landlord and Tenant Act, and, if not, whether the district court committed reversible error in awarding damages under Count I of the petition above and beyond those allowed under K.S.A. 58-2563? It is the position of the defendant that, when a landlord violates K.S.A. 58-2563, the court cannot award the tenant more than one and one-half times the monthly rent without regard to the damages actually sustained. We note that, under K.S.A. 58-2563, the tenant may recover “not more than one and one-half (IV2) months’ periodic rent or the damages sustained by the tenant, whichever is greater.” In our judgment, the statutory intent is clear. A tenant may recover up to one and one-half (U/2) months’ periodic rent unless the court finds actual damages in a greater amount, in which event, the actual damages are the measure of the tenant’s recovery. If the amount of actual damages are less than the statutory amount, then the tenant is entitled to recover the statutory amount. If'the actual damages are in excess of the statutory amount, the tenant may recover his actual damages. The defendant challenges the amount of the actual damages awarded to the plaintiff in the case. The trial court awarded total actual damages in the amount of $1,168. The court awarded plaintiff damages in the amount of $168 because the landlord had not complied with the provisions of K.S.A. 1982 Supp. 58-2550 by failing to return the tenant’s security deposit in the amount of $80. K.S.A. 1982 Supp. 58-2550(fe), (c), and (e) provide: “(h) Upon termination of the tenancy, any security deposit held by the landlord may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant’s noncompliance with K.S.A. 58-2555 and the rental agreement, all as itemized by the landlord in a written notice delivered to the tenant. If the landlord proposes to retain any portion of the security deposit for expenses, damages or other legally allowable charges under the provisions of the rental agreement, other than rent, the landlord shall return the balance of the security deposit to the tenant within fourteen (14) days after the determination of the amount of such expenses, damages or other charges, but in no event to exceed thirty (30) days after termination of the tenancy, delivery of possession and demand by the tenant. If the tenant does not make such demand within thirty (30) days after termination of the tenancy, the landlord shall mail that portion of the security deposit due.the tenant to the tenant’s last known address. “(c) If the landlord fails to comply with subsection (b) of this section, the tenant may recover that portion of the security deposit due together with damages in an amount equal to one and one-half (IV2) the amount wrongfully withheld. “(e) Nothing in this section shall preclude the landlord or tenant from recovering other damages to which such landlord or tenant may be entitled under this act.” (Emphasis supplied.) It should be noted that K.S.A. 1982 Supp. 58-2550(h) provides that upon termination of the tenancy a landlord may apply the security deposit to the payment of accrued rent, “all as itemized by the landlord in a written notice delivered to the tenant.” In this case, it is undisputed that the landlord failed to furnish the tenant with an itemized statement showing the nature of the items deducted from the security deposit. Thus the landlord obviously failed to comply with the notice section of the statute. The trial court allowed the tenant to recover $168 consisting of the $80 security deposit plus one and one-half the amount of the deposit ($120) making a total of $200 less a credit of $32 for the six days in which the tenant remained in possession of the premises. We find no error in the allowance of these actual damages for failure of the landlord to return the security deposit. The allowance of $168 for that item was thus correct. As additional actual damages, the trial court awarded plaintiff the sum of $1,000 because the plaintiff was forced out of his rented apartment with his family without legal cause or legal action in violation of K.S.A. 58-2563. It appears that this allowance included $20 for food which spoiled when plaintiff was excluded from the apartment, and an additional sum for the plaintiff being forcibly excluded from the apartment. We find that the trial court was in error. As noted above, in determining actual damages, K.S.A. 58-2563 permits a tenant, who has been unlawfully excluded from the premises or whose services have been willfully diminished by the landlord, to recover an amount not more than one and one-half of the month’s periodic rent or the damages sustained by the tenant, whichever is greater. We have carefully examined the evidentiary record and concluded that the plaintiff failed to prove actual damages in excess of one and one-half times the $160 rent, which would be $240. The only other evidence in the case presented on the issue of damages was the testimony of the plaintiff that he was mad when he found the door nailed shut and that he was asking $1,000 for nailing the door shut and keeping them out. The evidence showed that after plaintiff found the door locked, he found a place to live within about an hour after he left the apartment and that he was claiming the $1,000 damages for the one hour it took to find a place to live. Plaintiff admitted on the stand that the sum of $1,000 was a little steep for that. Under the circumstances, we hold that the evidence was insufficient to show actual damages in excess of $20 for the spoiled food and that the trial court should have properly awarded the statutory damages in the amount of one and one-half times a month’s periodic rent which would total $240. We, therefore, modify the judgment to change the award of actual damages from $1,168 to the sum of $240 plus damages in the amount of $168 because the landlord willfully withheld the security deposit, making a total of $408 actual damages. The defendant’s third point on the appeal is that the trial court erred as a matter of law in awarding exemplary or punitive damages to the plaintiff under Count #2 of plaintiff s petition. The defendant contends that punitive damages may not be recovered by a tenant for a violation of the Kansas Residential Landlord and Tenant Act, specifically, K.S.A. 58-2563. We note that under K.S.A. 58-2563, where the landlord unlawfully excludes the tenant from the premises or willfully diminishes services to the tenant by terminating his electrical services, the tenant may recover the “damages sustained by the tenant.” Under existing Kansas law. a tenant who has been willfully ousted from the premises by the landlord may recover punitive damages if the landlord has acted willfully and wantonly in violation of the tenant’s rights. In Walterscheid v. Crupper, 79 Kan. 627, 100 Pac. 623 (1909), the owner of a dwelling house removed a portion of the roof of the house for the purpose of rendering it uninhabitable and for the purpose of compelling the tenant to vacate. The tenant brought an action for damages and this court held that the case was properly one for the allowance of exemplary damages. The court noted that the factual circumstances in the case indicated that the defendant had acted willfully and wantonly and it was a case where the defendants had taken the law into their own hands, in utter disregard of the plaintiffs rights. The court described the action of the landlord in the words used by an Illinois court in a similar case: “ ‘The whole conduct of the parties was an outrage upon individual rights and upon the law, and all the circumstances indicate wantonness and malice. In such a case exemplary damages were properly awarded, and no court should weigh the testimony nicely for the purpose of reducing the amount.’ (Jasper et al. v. Purnell, 67 Ill. 358, 360.)” p. 630. Later Kansas cases have recognized that as a general rule in an action for breach of contract damages are limited to pecuniary loss sustained and the breach of a contract alone does not form a basis for recovery of punitive damages. However, a party may recover punitive damages under an exception to the rule, when some independent tort results in additional injury and such tortious act indicates malice, fraud or wanton disregard for the rights of others. This rule is followed in Hess v. Jarboe, 201 Kan. 705, 443 P.2d 294 (1968), which involved an action by a tenant against a landlord to recover damages by reason of an ouster from certain farm and pasture land. We find nothing in the residential landlord and tenant act (K.S.A. 58-2540 et seq.) which precludes a tenant from recovering punitive damages in an appropriate case. In the case now before us, it is clear that the defendant took the law into his own hands in utter disregard of the tenant’s rights. The conduct of the defendant clearly showed wantonness and malice. Under the circumstances, an award of punitive damages was proper. The trial court awarded the sum of $1,000 for punitive damages. We cannot say that this award was excessive, and we uphold it. The plaintiff contends in his brief that he should be awarded attorney fees and expenses incurred on the appeal as authorized by Supreme Court Rule No. 7.07 (230 Kan. lxii), because the appeal was taken frivolously or for the purpose of harassment or delay. As noted above, the defendant has prevailed as to that portion of his appeal relating to actual damages. The issues presented on the appeal are novel, and we cannot say that the appeal was taken by the defendant frivolously. We, therefore, decline to award attorney fees and expenses on the appeal to the plaintiff. The judgment of the district court is modified as set forth in the opinion to reduce the amount of actual damages awarded the plaintiff and, as modified, the judgment of the district court is affirmed.
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The opinion of the court was delivered by Miller, J.: The Sumner District Court dismissed the com plaint in this criminal case with prejudice, holding that under K.S.A. 21-3108(2)(a), this prosecution subjects defendant to double jeopardy. The State of Kansas appeals, pursuant to K.S.A. 22-3602(h)(l). The issue presented is whether defendant’s conviction of traffic charges bars his prosecution on criminal charges, separately filed but arising out of the same sequence of events. The facts, for the purpose of this appeal, are not disputed. The defendant, a truck driver, was stopped for speeding on the Kansas Turnpike in Sumner County by a trooper of the Kansas Highway Patrol on September 23, 1981. While at the scene, the trooper called for aid and a deputy sheriff came to assist him. Apparently the relationship which developed between the officers and the defendant was not one of cordiality. Ultimately, the officers arrested the defendant and took him to the Sumner County jail on charges of disorderly conduct, obstructing legal process, and battery of law enforcement officers. The trooper issued to defendant a uniform citation and notice to appear, K.S.A. 8-2106, charging him with traffic charges: exceeding the speed limit, K.S.A. 8-1336, and failing to produce and surrender his daily log for inspection, K.S.A. 66-1,129, 66-1,130 and K.A.R. 1981 Supp. 82-4-7a. The uniform citation and notice to appear was filed with the clerk of the district court on September 23, 1981, and became the complaint charging the traffic offenses. K.S.A. 8-2108. This was docketed as Case No. 81 TR 4070, and will be referred to as the traffic case. Meanwhile, the county attorney filed with the clerk of the district court on September 25, 1981, a formal complaint charging the defendant with disorderly conduct, K.S.A. 21-4101, obstructing legal process, K.S.A. 21-3808, and two counts of battery of a law enforcement officer, K.S.A. 21-3413. This was docketed as Case No. 81 CR 351, and is the criminal case now before us. On September 25, the defendant was released upon posting bond for his appearance. On October 23, 1981, the defendant entered a plea of guilty to the speeding charge, and a plea of nolo contendere to the log book charge; the trial court accepted the pleas and imposed fines; defendant paid the fines and court costs, and the traffic case was thus terminated. In the criminal case, No. 81 CR 351, the defendant obtained several continuances and then on January 13, 1982, filed a motion to dismiss the criminal charges on the grounds that the traffic charges and the criminal charges all grew out of the same acts and transaction; that a trial on the criminal charges will require a reexamination of some of the issues of fact determined — and admitted — in the traffic case; and that the criminal charges could have been included along with the traffic charges in a single complaint. The defendant argued that his presence in Sumner County, at a certain milepost on the Kansas Turnpike on the day in question, was one of the elements of each of the criminal charges against him and remaining for trial. Counsel called to the court’s attention the cases of In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979), and State v. Becker, 1 Kan. App. 2d 671, 573 P.2d 1096 (1977). The trial judge, after recessing to review the cited cases, announced his decision as follows: “The Court after careful examination of the statute and the authorities cited to the Court believes that the spirit and the purpose for the adoption of K.S.A. 21-3108 would be violated by allowing the defendant to be prosecuted in regard to this matter; that in fact it would constitute a violation of the statute submitting him to double jeopardy. The legislative history . . . as discussed in the cases cited show that [the statute] was specifically directed towards a double prosecution .... This case is one arising out of one transaction. Kansas is apparently in the forefront of adopting the rules that apply to require the joinder of events occurring in a single transaction; and under those circumstances the Court believes that the . . . defendant’s motion is correct and that the motion should be sustained and so rules.” One preliminary matter requires our attention. The State contends that the defendant waived his right to raise the double jeopardy claim by failing to make a motion to dismiss within twenty days of his arraignment. The defendant was arraigned in district court on the three criminal charges on December 1, 1981, and a plea of not guilty was entered. His motion to dismiss was not filed until January 13, 1982, some forty-three days later. The State’s argument is based upon K.S.A. 22-3208(4), which provides: “The motion to dismiss shall be made at any time prior to arraignment or within 20 days after the plea is entered.” A review of the files and records in this case, and of the transcript of the oral argument of counsel when the motion to dismiss was argued to the trial court, discloses that this issue was not raised before or presented to that court. Ordinarily, this court will not consider an issue raised for the first time on appeal and not presented to the trial court. See State v. Puckett, 230 Kan. 596, 598, 640 P.2d 1198 (1982); Boswell, Inc. d/b/a Reno County Adult Care Home v. Harkins, 230 Kan. 610, 613, 640 P.2d 1202 (1982); and State v. Estes, 216 Kan. 382, 385, 532 P.2d 1283 (1975). Certain exceptions to the rule are enumerated in Puckett, 230 Kan. at 598-99, but none of them are applicable here. We see no reason to make any further exception here and we decline to consider this issue. The controlling issue on this appeal involves the double jeopardy provisions of K.S.A. 21-3108(2)(o), which read: “(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution: “(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as -other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely . . . .” Three elements must be present to bar a subsequent prosecution under this portion of K.S.A. 21-3108(2)(a). First, the prior prosecution must have resulted in a conviction or an acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. State v. Calderon, 233 Kan. 87, 661 P.2d 781 (1983); State v. Mahlandt, 231 Kan. 665, Syl. ¶ 2, 647 P.2d 1307 (1982); and In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979). The first and third elements are present here. The traffic case resulted in the defendant’s conviction, by way of pleas of guilty and nolo contendere, of speeding and failing to produce his daily log book for inspection; and the criminal charges of disorderly conduct, obstructing legal process, and battery of law enforcement officers could have been included within the same complaint. The offenses all arose during the same transaction or sequence of events, and it is likely that the initial stop and speeding charge precipitated the subsequent offenses. See K.S.A. 22-3202(1). The determinative issue is whether the second element is met: Was evidence of the present crimes introduced in the prior prosecution? As Chief Justice Schroeder notes in his opinion in State v. Calderon, the cases which have construed K.S.A. 21-3108(2)(a) or its forerunner, K.S.A. 62-1449 (Corrick), have focused upon the admission of evidence at a prior trial as the necessary factor bringing the statute into play. See In re Berkowitz, 3 Kan. App. 2d at 742-43; Coverly v. State, 208 Kan. 670, 672-73, 493 P.2d 261 (1972); State v. McCarther, 198 Kan. 48, 50, 422 P.2d 1012 (1967); Struble v. Gnadt, 164 Kan. 587, 590, 191 P.2d 179 (1948); Claflin v. State, 154 Kan. 452, 119 P.2d 540 (1941); State v. Momb, 154 Kan. 435, 119 P.2d 544 (1941); and State v. Brown, 146 Kan. 525, 73 P.2d 19 (1937). Here, there is nothing in the record to indicate that there was any evidence introduced before the court when defendant’s pleas were entered in the traffic case; there is nothing to indicate that there was any mention of any of the three offenses charged in the criminal case now before us. We hold that the second element of the statute, the introduction of evidence of the present crime in the prior prosecution, is wholly absent from this record. We have been discussing the applicability of K.S.A. 21-3108(2)(a), and its earlier version, K.S.A. 62-1449 (Corrick). Of the latter statute, Justice O’Connor made the following observations in State v. Ward, 198 Kan. 61, 63, 422 P.2d 961 (1967): “The statute was intended to supplement the existing law upon the subject of jeopardy, and by its language applies only where there is a trial and evidence of other offenses is admitted.” (Emphasis in original.) The same may also be said of K.S.A. 21-3108(2)(a). Although the statutory language has been changed and “prosecution” substituted for “trial,” the operative fact is still the evidence admitted in the former proceeding. In addition to the statutory provision, however, we also have the constitutional mandate barring prosecution in cases of prior jeopardy. The doctrine of former jeopardy as a bar to a second prosecution for the same crime is ancient and is said to be one of the universal maxims of the common law. See 22 C.J.S., Criminal Law § 238; and 4 Blackstone, Commentaries 335-36 (15th ed. 1809). It is found in various forms in statutes and in most if not all of the state constitutions. The Fifth Amendment of the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . Section 10 of our Kansas Bill of Rights states: “No person shall be . . . twice put in jeopardy for the same offense.” What is jeopardy? K.S.A. 21-3108(l)(c) says in part: “A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.” The statute discusses jeopardy in the context of a contested trial, usually following a plea of not guilty. But is the accused not also in jeopardy when he or she has been convicted of an offense without a contested trial? The answer must be in the affirmative. In Cox v. State, 205 Kan. 867, 473 P.2d 106 (1970), we said at Syl. ¶ 5: “It is the general rule that an accused is in jeopardy within the meaning of the guarantee against double jeopardy contained in our constitutions when he is put on trial in a court of competent jurisdiction upon an indictment or information sufficient in form and substance to sustain a conviction, and a jury has been empaneled and sworn or a plea of guilty has been entered.” (Emphasis supplied.) It is the general rule that a valid plea of guilty to an indictment, information, or complaint, with its entry on the record, is jeopardy. See discussion in 22 C.J.S., Criminal Law § 248, and cases collected under note 96. The courts appear to be equally divided on the question of whether a plea of nolo contendere, offered, accepted by the court, and entered on the record, bars a later prosecution for the same offense. See 22 C.J.S., Criminal Law § 248, notes 11 and 11.5. A plea of nolo contendere is attended with the same formalities as a plea of guilty. K.S.A. 1982 Supp. 22-3210. Nolo contendere may only be pleaded with the consent of the court. K.S.A. 22-3208(1). The plea is a formal declaration that the accused does not contest the charge. When a court accepts such a plea, it may adjudge the defendant guilty of the charge. K.S.A. 22-3209(2). Once a plea of nolo contendere has been accepted by the court and a finding of guilty has been entered thereon, the accused stands convicted of the offense. While a plea of nolo contendere, unlike a plea of guilty, may not be used as an admission in any other action based on the same act, for all other purposes a conviction based on a plea of nolo contendere is just like any other conviction. State v. Holmes, 222 Kan. 212, 563 P.2d 480 (1977). We hold that when a defendant has been convicted on a sufficient information or complaint, in a court of competent jurisdiction, either upon a plea of guilty or a plea of nolo contendere and the plea has not been withdrawn, the accused has been in jeopardy and is entitled to the protection afforded by our constitution from additional prosecution for the same or an included offense, based upon the same facts. For example, one convicted upon a plea of guilty or nolo contendere of manslaughter may not later be charged with murder if the later charge is based upon the same act. Likewise, a similar conviction of attempted murder would bar a prosecution for aggravated battery, and a conviction of rape would bar a prosecution for incest, when the later prosecutions were based upon the same operative facts. The pleas to the traffic charges in this case, however, do not establish or substantially prove the criminal charges pending against the defendant. The operative facts are different. This case is readily distinguishable from the case of State v. Becker, 1 Kan. App. 2d 671, 573 P.2d 1096 (1977), where the defendant entered a plea of guilty to the charge of driving left of center in a separate traffic case, and that conviction was held to bar a subsequent prosecution for aggravated assault on a law enforcement officer arising out of the identical conduct. The Court of Appeals, in its opinion in Becker, noted that “exactly the same conduct was the basis of two separate prosecutions.” 1 Kan. App. 2d at 673. Such is not the case here. The defendant contends that the State is barred by the rule of collateral estoppel from relitigating one common issue — the defendant’s presence at milepost 19.3 on the Kansas Turnpike in Sumner County at the time and place the crimes allegedly occurred in Sumner County, Kansas. Defendant relies on the following quotation from the opinion of the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 443, 25 L.Ed.2d 469, 90 S.Ct. 1189 (1970): “ ‘Collateral estoppel’ . . . means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” The court, however, goes on to explain that “[T]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” 397 U.S. at 444. (Emphasis supplied.) In Ashe, the single issue in dispute before the first trial jury was whether Ashe was one of several robbers. It determined that he was not. That issue was thus determined, and could not be relitigated. In the case now before us, the exact location within Sumner County is not a critical issue of the criminal prosecution. The speeding charge — to which defendant pleaded guilty — no doubt arose some distance prior to defendant’s arrival at the spot where he was stopped. All that is necessary to support the speeding charge is that the offense occurred within Sumner County, in order to give the trial court venue. Defendant’s presence within that county on the date specified does not tend to prove or establish the commission of the four criminal charges. Applying the rule with “realism and rationality,” we conclude that neither the defendant’s guilty plea to the traffic offense of speeding and his conviction thereof nor his log book conviction by way of his plea of nolo contendere prevents the State from proceeding with trial of the four criminal charges, which are entirely separate and distinct. In the Berkowitz opinion we find the following illuminating discussion: “Where the same evidence is common to two or more distinct offenses but standing alone does not substantially prove them, its use in one prosecution will not bar a subsequent prosecution for a different offense and its use therein. . . . The object of the statute is simply to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged, and then prosecuting the defendant — -in effect retrying him — for the same offense in a trial where it is charged.” 3 Kan. App. 2d at 743. We conclude that neither the provisions of K.S.A. 21-3108(2)(a) nor the double jeopardy provisions of the Kansas and the United States Constitutions prevent the State from prosecuting Fisher on the criminal charges, and that the trial court erred in dismiss ing the complaint. The judgment is reversed, and the case is remanded to the district court for further proceedings in conformity with this opinion.
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The opinion of the court was delivered by Schroeder, C.J.: This is an appeal by Bernd B. Szoboszlay (plaintiff-appellant) in an action brought under the Small Claims Procedure Act, K.S.A. 61-2701 et seq., against Mrs. Esta Glessner (defendant-appellee). The appellant contends the trial court erred in failing to award him attorney fees as provided by K.S.A. 1982 Supp. 61-2709 in an appeal taken by Mrs. Glessner from a judgment entered against her in the small claims action. The facts pertinent to this appeal are brief and undisputed. On March 20, 1981, the appellant filed a small claims action against his landlord, Mrs. Glessner, for the return of his security deposit. A judgment of $150 was entered in favor of the appellant (tenant) by the district magistrate judge on April 7, 1981. Mrs. Glessner appealed to the district court pursuant to K.S.A. 1982 Supp. 61-2709(c) and counterclaimed for damages in the amount of $1,140. In his answer to the counterclaim the appellant prayed for reasonable attorney fees, return of his security deposit and damages under K.S.A. 1982 Supp. 58-2550(c) (Residential Landlord and Tenant Act). On July 29, 1981, Associate District Judge Melvin M. Gradert affirmed the judgment entered in the small claims proceeding, but modified the amount of the judgment by reducing it to $124.02 due to additional rent owed by the tenant in the amount of $25.98. No provision was made for attorney fees and the appellant (tenant) filed notice of appeal to the Court of Appeals with the clerk of the district court on August .27, 1981. The appellant was issued an order by the Court of Appeals to show cause why the appeal should not be dismissed for lack of jurisdiction for failure to file the notice of appeal within the ten-day limit set forth in K.S.A. 61-2102(c) for appeals in limited action cases. The appellant responded that K.S.A. 1982 Supp. 61-2709(fo) under the Small Claims Procedure Act provides that a decision of a district judge or associate district judge entered in a de novo appeal in a small claims proceeding may be appealed “in the manner provided by article 21 of chapter 60,” which would allow 30 days to file a notice of appeal. The parties were directed to file briefs on the issue of jurisdiction which would be determined along with the merits. Due to the apparent conflict in the Code of Civil Procedure for Limited Actions regarding the time limit within which a notice of appeal to the appellate courts must be filed in limited action cases, this case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c). Was this appeal timely filed under the applicable statute? The filing of a timely notice of appeal is jurisdictional. State v. Moses, 227 Kan. 400, Syl. ¶ 8, 607 P.2d 477 (1980). While the question of jurisdiction was not raised by either party we have often held it is the duty of this court to raise the question of jurisdiction on its own motion, and where the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal. In re K-Mart Corp., 232 Kan. 387, Syl. ¶ 1, 654 P.2d 470 (1982); State v. Moses, 227 Kan. 400, Syl. ¶ 7. The issue of jurisdiction in this case arises by reason of two statutes contained in the Code of Civil Procedure fot Limited Actions, found in chapter 61 of the Kansas Statutes Annotated, governing the time within which a notice of appeal must be filed. K.S.A. 61-2101, the general appeal provision fot chapter 61 actions, provides: "(a) All appeals from actions pursuant to this chapter shall be by notice of appeal specifying the order, ruling, decision or judgment complained of, and shall be filed with the clerk of the court from which the appeal is taken within ten (10) days after the entry of such order, ruling, decision or judgment . . . .” The statute governing appeals in actions under the Small Claims Procedure Act, K.S.A. 1982 Supp. 61-2709, reads in part: “(a) An appeal may be taken from any judgment under the small claims procedure act. All appeals shall be by notice of appeal specifying the party or parties taking the appeal and the order, ruling, decision or judgment complained of and shall be filed with the clerk of the district court within 10 days after entry of judgment. All appeals shall be tried and determined de novo before a district judge or associate district judge, other than the judge from which the appeal is taken. . . . (b) Any order, ruling, decision or judgment rendered by a district judge or associate district judge on an appeal taken pursuant to subsection (a) may be appealed in the manner provided in article 21 of chapter 60 of the Kansas Statutes Annotated.” (Emphasis added.) K.S.A. 60-2103 provides that an appeal shall be taken within 30 days of the entry of judgment. Simply stated the issue is whether actions brought under the Small Claims Procedure Act are ah forded the longer appeal time provided in article 21 of chapter 60 while appeals in other limited action cases are required to be filed within the shorter time set forth in 61-2102. This court has recognized on numerous occasions that the right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. In re K-Mart Corp., 232 Kan. 387, Syl. ¶ 2. The provisions of the pertinent statutes must be construed to determine which time limit set forth in those statutes for filing an appeal is applicable in the present case. In doing so we are mindful of the fundamental rule of statutory construction, to which all others are subordinate, that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 630, 629 P.2d 187 (1981); In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981). The historical background and changes made in a statute are to be considered by the court in determining the legislative intent, and any changes and additions made in existing legislation raise a presumption that a change in meaning and effect was intended. Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 6, 654 P.2d 445 (1982). In order to ascertain the legislative intent, courts are not permitted to consider only an isolated part or-parts of an act but are required to consider and construe together all parts thereof in pari materia. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982). When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Randall v. Seemann, 228 Kan. 395, Syl. ¶ 1, 613 P.2d 1376 (1980); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, Syl. ¶ 2, 557 P.2d 1286 (1976). Prior to its amendment, K.S.A. 61-2709 provided that an appeal could be taken from a judgment under the Small Claims Procedure Act “in the manner prescribed by the code of civil procedure for limited actions.” The statute was amended in 1977 to overcome constitutional infirmities created by the unification of the district courts in 1976 where no provision existed for a hearing de novo in small claims proceedings in which the parties could be represented.by counsel. See Heinemann^Legislation 1977, 46 J.K.B.A.- 69, 90 (1977); The statute now provides a two-step appeal process in small claims actions. A judgment rendered in a small claims proceeding may first be appealed within ten days for a trial de novo before a different district judge or associate, district judge. Under K.S.A. 1982 Supp.-61-2709(h) an appeal may then be taken to the appellate courts- “in the manner provided in article 21 of chapter 60” from the judgment entered, in the de novo adjudication. The statute is couched in terms familiar to all lawyers and judges in this state and is not ambiguous. It is a fundamental principle of statutory construction that words in common usage are to be given their natural and;ordinary meaning in arriving at the proper construction of a statute. Stephens v. Van Arsdale, 227 Kan. 676, 684, 608 P.2d 972, (1980); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. at 214. It has generally been recognized that the phrase “in the same manner” has a well-un derstood meaning in legislation and that meaning is not one of restriction or limitation, but of procedure. It means by similar proceedings, so far as such proceedings are appliable to the subject matter. See Terry v. Ferreria, 51 So. 2d 426, 427 (Fla. 1951); La Monica v. Krauss, 191 Misc. 589, 590, 76 N.Y.S.2d 520 (1948); Belakjon v. Hilstad, 76 N.D. 298, 309, 35 N.W.2d 637 (1949); Commonwealth v. Hildebrand, 139 Pa. Super. 304, 307, 11 A.2d 688 (1940). The phrase “in the same manner” has been interpreted by other courts to include the element of time as well as other procedures required for effectuating an appeal or other statutorily prescribed acts. See Brownfield v. Social Security Comm. of Missouri, 236 Mo. App. 333, 335, 155 S.W.2d 905 (1941); Wykoff et al. v. W. H. Wheeler & Co. et al., 40 Okla. 559, 563, 139 Pac. 319 (1914). The statute is not rendered ambiguous by the mere fact 61-2102 provides a shorter appeal time applicable to other limited action proceedings. K.S.A. 61-2702 provides: “This act shall apply to and be an alternative procedure for the processing of small claims pursuant to the code of civil procedure for limited actions,- and the provisions of this act shall be part of and supplemental to the code of civil procedure for limited actions . . . Except as otherwise specifically provided or where a different or contrary provision is included in this act, the code of civil procedure for limited actions shall be applicable to the processing of small claims and judgments under this act.” (Emphasis added.) It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls. Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 432, 601 P.2d 1100 (1979). Also, where there is a conflict between the provisions of two or more statutory sections, the latest legislative expression controls. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981). Applying the aforementioned principles of statutory construction, the only reasonable conclusion which can be reached is that the statute means what it plainly says; that is, that the 30-day time limit for filing appeals set forth in 60-2103 applies to appeals taken from the judgment of a district judge or associate district judge entered in de novo adjudications in small claims proceedings pursuant to 61-2709(c). While K.S.A. 61-2102 provides the general procedure for appeal applicable in limited action proceedings, 61-2709 sets forth the appeal procedure applicable to a specific group of limited actions —- those cases filed under the Small Claims Procedure Act. The method for taking an appeal from a judgment under the Act was changed from “in the manner prescribed by the code of civil procedure for limited actions” to “in the manner provided in article 21 of chapter 60” by the 1977 amendment of 61-2709. It is presumed the legislature intends to change the law when it amends the provisions of a statute. Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 7. There is nothing in the statute to indicate “in the same manner” is not to be accorded its commonly understood meaning and interpreted as including the time requirement for filing an appeal prescribed by 60-2103. It is presumed the legislature acted with full knowledge and information as to the subject matter of the statute, as to prior and existing legislation on the subject of the statute, and as to judicial decisions with respect to prior and existing law. Rogers v. Shanahan, 221 Kan. 221, 225, 565 P.2d 1384 (1976). While we are aware the purpose of the Act as expressed in K.S.A. 61-2712 is to provide a forum for the speedy trial of small claims, we are satisfied the legislature intended that the 30-day time limit for filing an appeal set forth in 60-2103 applies to an appeal from a decision of a district judge or associate district judge entered in a de novo adjudication pursuant to 61-2709(c) in a small claims proceeding, The appellee further contends the appeal should be dismissed for the appellant’s failure to comply with Supreme Court Rule 3.05 (230 Kan. 1-li). A stipulation concerning the designation of the contents of the record and the issue to be determined on appeal, signed by both parties and Judge Gradert, was filed with the Clerk of the Appellate Courts on April 27, 1982. This stipulation designated four documents to be included in the record on appeal, one of which, an “[ojrder dated August 6, 1981, with regard to the request for attorneys fees,” was not filed with the record. On September 14,1982, the appellant was ordered by the Court of Appeals to show cause why the appeal should not be dismissed pursuant to Rule 5.05 (230 Kan. liv), “because of appellant’s substantial failure to comply with the rules of the court, and in particular Rule 3.05 governing the time in which to file an agreed statement of fact, and Rule No. 6.01 [230 Kan. liv] governing the time for filing appellant’s brief.” The appellant responded that numerous unsuccessful attempts had been made to have judge Gradert sign the order concerning attorney fees, and requested that the appeal be considered based upon the record available to the court. The appellant was directed to file a brief by November 8, 1982, or the appeal would be dismissed. The appellant’s brief was filed on November 5, 1982. The appellee contends the court lacks jurisdiction over the appeal because of the appellant’s failure to file the stipulation and the contents of the record designated therein within twenty days of filing the appeal as required by Rule 3.05. It has been recognized that the procedural requirements of the rules may be waived and are not jurisdictional. See Chetopa State Bancshares, Inc. v. Fox, 6 Kan. App. 2d 326, 334, 628 P.2d 249, rev. denied 229 Kan. 669 (1981). An appellee’s remedy after an appeal is docketed is a motion in the appellate court to dismiss under Rule 5.05 for substantial failure to comply with the rules. Such a motion is addressed to the sound discretion of the appellate court. Carson v. Eberth, 3 Kan. App. 2d 183, 185, 592 P.2d 113 (1979). Here the Court of Appeals, on its own motion, ordered the appellant pursuant to Rule 5.05 to show cause why the appeal should not be dismissed for substantial failure to comply with the rules. The appellant indicated his reasons for noncompliance and the court allowed the appeal to continue. There has been no showing by the appellee that her rights were prejudiced thereby, and we see no reason to overturn the judgment of the Court of Appeals on this question. Addressing the merits of this appeal, the appellant (tenant) contends the trial court erred in failing to award him attorney fees as provided by K.S.A. 1982 Supp. 61-2709 in the appeal taken by the appellee (landlord) from the judgment entered against her in the small claims proceeding. K.S.A. 1982 Supp. 61-2709(a) provides in part: “If thg appellee is successful on an appeal pursuant to this subsection, the court shall award to the appellee, as part of the costs, reasonable attorneys’ fees incurred by the appellee on appeal.” (Emphasis added.) When amended in 1977 the statute provided that the court “may” award attorney fees incurred by the appellee. In 1979 the statute was amended to provide that the court “shall” award attorney fees on an appeal taken pursuant to 61-2709(a). It has been recognized that the mandatory “shall” is not a hard and fast identifying mark which can forestall the mandatory or directory character to be assigned to any statutory provision (City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 783, 518 P.2d 403 [1974]), and “shall” in a statute is frequently read to mean “may” where the context requires. Paul v. City of Manhattan, 212 Kan. 381, 385, 511 P.2d 244 (1973). However, the obvious intent of the legislature in specifically changing the wording of the statute from the permissive “may” to the mandatory “shall” cannot be overlooked. In appeals taken pursuant to K.S.A. 1982 Supp. 61-2709(c) the trial court is required to award the successful appellee reasonable attorney fees incurred in the appeal. The appellee contends the appellant was not “successful” on appeal because his judgment of $150 awarded in the small claims proceeding was modified to $124.02 by Judge Gradert. The definition of “successful party” as it applies to an award of attorney fees pursuant to 61-2709 was discussed in Schuh v. Educational Reading Services of Kansas, 6 Kan. App. 2d 100, 101, 626 P.2d 1219 (1981): “The term ‘successful party’ has been held to be synonymous with ‘prevailing party.’ Beneficial Standard Properties, Inc. v. Sharps, 136 Cal. Rptr. 549, 67 Cal. App. 3d 227 (1977). The term ‘prevailing party’ is defined in Black’s Law Dictionary 1069 (5th ed. 1979) as: “ ‘The party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered. (Citation omitted.) The party ultimately prevailing when the matter is finally set at rest.’ “With respect to the specific question of attorney fees, it has been stated a prevailing party is the person who has an affirmative judgment rendered in his favor at the conclusion of the entire case.” There it was held that although the appeal was voluntarily dismissed by the appellant the appellee prevailed on appeal and was entitled to recover attorney fees pursuant to 61-2709. The appellee relies on two cases holding that where the amount awarded the plaintiff was reduced on an appeal taken by the defendant, the plaintiff was not the “successful party” and was not entitled to recover attorney fees. See Garrison v. Trotter, 114 Tenn. 526, 86 S.W. 1078 (1905); Trempealeau County v. Marsh, 252 Wis. 278, 31 N.W.2d 519 (1948). However, it has generally been held that where a setoff or counterclaim has been filed the party in whose favor a final judgment is rendered will be entitled to costs. In other words, the plaintiff is entitled to costs if he has a judgment in an amount in excess of the setoff or counterclaim allowed, even though the defendant prevailed to a certain extent on the counterclaim. See 20 C.J.S., Costs § 12; Schuh v. Educational Reading Services of Kansas, 6 Kan. App. 2d at 101, and cases cited therein. See also 20 Am. Jur. 2d, Costs §§ 15, 16. A number of cases have held'that where a plaintiff is substantially successful in his cause of action he is the successful party, although the plaintiff s judgment may have been reduced by an amount awarded the defendant on a counterclaim or on appeal. A situation similar to that presented here was involved in Nesbitt v. District Court, 119 Mont. 198, 173 P.2d 412 (1946). There the plaintiff s judgment was modified slightly on appeal because the verdict was considered by the court to be excessive. The trial court awarded attorney fees to the defendant as the successful party on appeal. The court reversed, stating: “The only apparent basis upon which such order could be supported is that the appellant was the successful party to the appeal. We do not think that such is the case. The appellant was not successful in having the judgment of the trial court reversed or set aside on any of the several specifications of error involving legal questions presented. The judgment was upheld in all respects except that this court found that it was excessive in a small amount which was not supported by the evidence. It is true that as a result of the decision of this court the judgment was reduced in an unsubstantial amount, but this is not to say that such reduction constituted the appellant the successful party on the appeal. By the express terms of the decision, the judgment, as modified, was affirmed. We think that is plain that the respondents were the successful parties on the appeal, and that therefore they are entitled to their costs. It follows that the trial court was in error in awarding costs on appeal to the appellant.” 119 Mont, at 200-01. Other cases involving counterclaims have held that a party is successful” if he obtains a judgment for an amount in excess of the setoff or counterclaim allowed. In Moss Construction Co. v. Wulffsohn, 116 Cal. App. 203, 205, 253 P.2d 483 (1953), the court reasoned: “Under the pleadings and findings the award to plaintiff makes it the victor in the contest. Defendants denied owing any sum whatever to plaintiff and sought by way of counterclaim to recover certain damages. Hence, by all rules of logic when at the conclusion of the trial it was determined that plaintiff was entitled to $2,654.29 after allowing defendants a partial offset, it became necessarily the ‘successful party’ within the meaning of that term as used in the contract. “Not only do logic and reason dictate such a conclusion, but analogous authority points to the same result. It is well established that generally there can be only one final judgment in an action and although a cross-complaint has been filed and matters therein stated are put to issue it is not such a pleading that requires, or permits the rendition of two separate judgments. (Nicholson v. Henderson, 25 Cal. 2d 375, 381 [153 P.2d 945]; Sjoberg v. Hastorf, 33 Cal. 2d 116, 118 [199 P.2d 668].) Hence, there could have been only one judgment entered herein and that was and is the net judgment rendered in favor of plaintiff. Where such is the case it has uniformly been held that the party awarded the net judgment is the prevailing litigant and thus the successful party. (Dobbins v. Horsfall, 58 Cal. App. 2d 23, 27 [136 P.2d 35]; Shelley v. Hart, 112 Cal. App. 231, 243 [297 P. 82].) It follows that since defendants were neither ‘successful’ nor ‘awarded judgment’ the allowance to them of attorney’s fees was erroneous and that counsel fees and costs should have been awarded to plaintiff pursuant to the terms of the contract.” See also Ocean West Contractors v. Halec Const. Co., 123 Ariz. 470, 600 P.2d 1102 (1979); Trollope v. Koerner, 21 Ariz. App. 43, 515 P.2d 340 (1973); Food Pantry v. Waikiki Business Plaza, Inc., 58 Hawaii 606, 575 P.2d 869 (1978). The general rule discussed by the foregoing authorities and cases is the better reasoned rule and should be applied in the present case. Viewing the case in its entirety, it is without doubt the appellant (tenant) was the successful party. The appellee (landlord) was denied recovery in any form on her counterclaim for damages. The appellant’s judgment was expressly affirmed, but was reduced by a small amount for three additional days of rent owed. The appellant prevailed on the main issue presented and therefore was the successful party. The appellee’s claim that no request was made by the appellant for attorney fees is not supported by the record before this court. In his answer to the appellee’s counterclaim the appellant specifically prayed for attorney fees. In addition, the docket sheet from the district court reflects that a letter was sent to Judge Gradert by the appellant’s counsel with a statement of attorney fees attached the day the notice of appeal was filed with the district court. It also appears there was some discussion between the parties and Judge Gradert concerning a proposed order regarding the issue of attorney fees which was designated as part of the record in the stipulation filed by the parties. While this order is not before this court because it apparently was never signed by Judge Gradert, a request for attorney fees was made by the appellant in the pleadings and in post-trial communications between the parties and the court which are documented in the record. The trial court’s reasoning-in failing to award attorney fees to the appellant is not material or necessary to a determination of this issue. K.S.A. 1982 Supp. 61-2709 makes it mandatory on the trial court to award reasonable attorney fees incurred by a successful appellee in an appeal taken pursuant to 61-2709(a). The appellant was the successful appellee in that appeal and is entitled to an award of attorney fees as part of the costs of the action. The judgment of the lower court is reversed in part and remanded with directions to enter judgment in accordance with this opinion awarding attorney fees.
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The opinion of the court was delivered by McFarland, J.: This is a dispute between plaintiff subcontractor, Foley Company, and defendant general contractor, Niro Atomizer, Inc., concerning the confirmation of an arbitration award by the district court. Defendant Niro appeals from the judgment of the district court confirming and refusing to vacate the arbitration award entered in favor of plaintiff Foley. Niro entered into a general construction contract with defendant Grindsted Products, Inc. (which is not a party to this appeal), whereby Niro was to construct a chemical processing facility on premises located in Olathe, Johnson County, Kansas, and leased to Grindsted by defendant Johnson County Airport Commission (also not a party to this appeal). Subsequently on July 5, 1979, Niro entered into a subcontract with Foley whereby Foley was to perform various piping and pipeline portions of the general contract. Foley completed performance of the subcontract on June 9, 1980. Foley then billed Niro for $437,386.85. Niro refused to pay the same and on August 29, 1980, Foley filed a mechanic’s lien statement on the premises. On October 2, 1980, in Johnson County District Court, this action was commenced by Foley to foreclose the mechanic’s lien. On November 18, 1980, Niro filed its motion to stay the mechanic’s lien foreclosure action and to compel arbitration of the dispute pursuant to article XII of the contract which provides: “XII. ARBITRATION: “The Contractor and the Subcontractor agree to attempt to resolve by negotiation any controversy or claim arising out of or relating to this Subcontract or any alleged breach thereof or default thereunder; however, if any such dispute cannot be resolved by negotiation, then such controversy or claim shall be settled by arbitration. Each of the parties shall designate an arbitrator, and the arbitrators so designated shall in turn select a third. The ruling of a majority of such arbitrators will be binding upon all parties. If the parties agree, the dispute may be submitted to an arbitrator mutually agreeable to both parties. Any arbitrator shall be selected from those individuals having expertise in the area of dispute. Such arbitrator shall be required to agree that he will keep confidential any information furnished by the parties hereto which qualifies as confidential information under the terms of this Subcontract. The rules and regulations of the American Arbitration Association shall govern, except to the extent that the arbitrators designated hereunder by a majority decision, shall determine otherwise. In the event the parties cannot agree upon arbitrators, as herein provided, then such arbitration shall be had pursuant to the rules and regulations of the American Arbitration Association. Any judgment or award rendered pursuant to arbitration as herein provided shall be final and binding in all respects upon the parties. It is expressly agreed by the parties that the arbitrators shall apply to each dispute the law of the State of Maryland, and the party not requesting arbitration shall choose the forum where arbitration will occur.” On February 26, 1981, the district court granted Niro’s motion for a stay and ordered the controversy be submitted to arbitration, the forum thereof to be chosen by Foley in accordance with the contractual agreement of the parties. Foley selected Kansas City, Missouri, as the arbitration hearing site. Foley and Niro each selected an arbitrator and the two men, so-designated, agreed upon who should serve as the neutral third arbitrator. All three arbitrators were knowledgeable in the area of mechanical construction involved in the dispute. On August 31 and September 1, 1981, the arbitrators held their arbitration hearing wherein Foley and Niro presented their evidence. The arbitrators met again on September 22, 1981, to consider the evidence and unanimously agreed Foley should be awarded $247,980 plus predecision interest of $44,233 and post-decision interest on the total arbitration award from September 1, 1981, at the rate of 1 lh% per month until the award was satisfied. The award was formalized and entered on October 16, 1981, at which time Mr. Gardner, the arbitrator chosen by Niro, declined to join therein. On November 6, 1981, Foley sought confirmation of the arbitration award in the original Johnson County District Court action herein. Niro sought vacation of the award. On February 23,1982, the district court refused to vacate the arbitration award and confirmed the same. Niro appeals from said judgment. Before proceeding to the issues one preliminary matter warrants attention. The arbitration article (article XII) in the contract herein specifies “the arbitrators shall apply to each dispute the law of the State of Maryland.” Further, subsection C of article XIII of the contract provides: “This Subcontract shall be interpreted and governed by the laws of the State of Maryland.” The arbitration clause further provides: “The rules and regulations of the American Arbitration Association shall govern . . . .” A literal reading of these three cited contractual provisions could well be interpreted to mean the law of Maryland is to be applied by the arbitrators in determining the merits of the controversy, and the arbitration procedures themselves are to be governed by the AAA rules. However, throughout this proceeding the parties have interpreted the “law of the State of Maryland” provision in the arbitration clause to encompass the entire arbitration proceeding, including confirmation and vacation of the arbitration award, with the AAA rules supplemental thereto. Inasmuch as this is the contract construction agreed upon by the parties, this court will proceed on that basis in determining the issues in this case. Both Maryland and Kansas have adopted the Uniform Arbitration Act. Md. Cts. & Jud. Proc. Code Ann. § 3-201 et seq. (T980), K.S.A. 5-401 et seq. The Maryland and Kansas statutory arbitration provisions applicable here are predominately the same, though variations in the format of the Act as published by the two states complicate cross-citations. We have concluded it would be of value to this opinion to cite the relevant Kansas sections of the Act with cross-citations to the comparable portions of the Maryland law. The primary statute with which we are involved is K.S.A. 5-412 (Md. Cts. & Jud. Proc. Code Ann. § 3-224 [1980]), which provides: “(a) Upon application of a party, the court shall vacate an award where:' “(1) The award was procured by corruption, fraud or other undue means; “(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; “(3) The arbitrators exceeded their powers; “(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of K.S.A. 5-405 [§ 3-213], as to prejudice substantially the rights of a party; or “(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under K.S.A. 5-402 [§ 3-208] and the party did not participate in the arbitration hearing without raising the objection; “But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.” We turn now to the issues. For its first issue Niro contends the trial court erred in not vacating the arbitration award on the basis there was evident partiality and misconduct on the part of arbitrator Chamblin. Graham Chamblin was the neutral arbitrator agreed upon by the two arbitrators appointed by the parties. At the beginning of the arbitration hearing Mr. Chamblin was asked if he knew either of the parties and he replied he did not. After the award was entered Niro discovered Chamblin had previously had some business dealings with Foley and bases this issue on that fact. As previously noted one of the grounds specified in K.S.A. 5-412(a)(2) (Md. Cts. & Jud. Proc. Code Ann. § 3-224[b][2] [1980]), for vacation of an arbitration award is: “(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party.” ■ The trial court held: “The record shows that Mr. Chamblin ‘performed a little $200 or $300 job’ for Foley in 1976, and that he was on Foley’s mailing list for bidding purposes (Chamblin’s December 8, 1981 deposition,, pp, 5, 6, 11). This minimal contact and the performance of this insignificant amount of work over five years ago do not constitute sufficient grounds to vacate this arbitration award, especially since the suggestions of Niro do not establish any partiality, corruption or misconduct, let alone such conduct which would overturn the award.” As early as Anderson v. Burchett, 48 Kan. 153, 29 Pac. 315 (1892), the Court recognized some contact between an arbitrator and a party might be unavoidable and was not, by itself, sufficient to set aside an arbitration award. In Anderson one of the arbitrators, a Mr. Kennedy, was indebted to Mr. Rurchettfor $50. The Court found this indebtedness was not sufficient to set aside the award, stating: “Another objection is, that one of the arbitrators was not disinterested and impartial, but was indebted to one of the contesting parties, and had counseled with him respecting the subject-matter of the controversy. Kennedy was indebted to Burchett to the extent of $50; but mere indebtedness of an arbitrator to one of the parties does not disqualify him. [Wallis v. Carpenter & Another, 95 Mass. (13 Allen) 19 (1866).] The indebtedness was small, and it is not shown that it was insecure, or that its payment depended to any extent on the result of this controversy. The interest of Kennedy, if it can be called one, was so remote and contingent that it could not, we think, have influenced him in his action, and nothing was shown in his conduct to indicate partiality or corruption.” 48 Kan. at 155. Both parties have cited cases in their briefs where neutral arbitrators have been held or not held evidently partial. If there is any rule which emerges from these cases it is probably best summarized by a New York Supreme Court, Appellate Division, in Cross Properties, Inc. v. Gimbel Brothers, Inc., 15 App. Div. 2d 913, 225 N.Y.S.2d 1014, aff'd 12 N.Y.2d 806, 236 N.Y.S.2d 61, 187 N.E.2d 129 (1962). “The type of relationship which would appear to disqualify is one from which it may not be unreasonable to infer an absence of impartiality, the presence of bias or the existence of some interest on the part of the arbitrator in the welfare of one of the parties.” 15 App. Div. 2d at 914. The Vermont Supreme Court, in R. E. Bean Constr. Co. v. Middlebury Assoc., 139 Vt. 200, 428 A.2d 306 (1980), relied upon Cross Properties when it commented: “An award should be vacated where undisclosed relationships create an impression of possible bias. However, if that rule is not ‘to emasculate the policy of the law in favor of the finality of arbitration,’ not every relationship will require that an award be vacated. San Luis Obispo Bay Properties, Inc. v. Pacific Gas & Electric Co., 28 Cal. App. 3d 556, 568, 104 Cal. Rptr. 733, 741 (1972). Only relationships from which one could reasonably infer bias, not those which are ‘peripheral, superficial or insignificant,’ will require vacating the award. Cross Properties, Inc. v. Gimbel Brothers, Inc., 15 App. Div. 2d 913, 914, 225 N.Y.S.2d 1014, 1016 (per curiam), aff'd mem., 12 N.Y.2d 806, 187 N.E.2d 129, 236 N.Y.S.2d 61 (1962).” 139 Vt. at 207. See also St. Paul Ins. Companies v. Lusis, 6 Wash. App. 205, 492 P.2d 575 (1971), rev. denied 80 Wash. 2d 1009 (1972), 56 A.L.R.3d 687. Further, the arbitration clause in the contract herein requires each arbitrator to have expertise in the field of the dispute. The record reflects the mechanical contracting community in the Kansas City area involves a relatively small number of individuals. Minimal contacts among members of the group, under such circumstances, are to be anticipated. In Perl v. General Fire & Cas. Co., 34 App. Div. 2d 748, 310 N.Y.S.2d 196 (1970), a New York appellate court recognized some familiarity and expertise on the part of arbitrators may be helpful in resolving disputes in technical areas where knowledge of such industry is important to making a determination when it stated: ‘‘Practically ever since arbitration has come to be an approved method of determining controversies it has been recognized that familiarity with the field in which the dispute lies is a highly desirable qualification for an arbitrator. ‘Knowledge of a business and the methods used therein may be of great value in reaching a just result because of the ability of an arbitrator to apply such knowledge to the facts’ (Matter of Newburger [Rose], 228 App. Div. 526, 529 [240 N.Y.S. 436, aff'd 254 N.Y. 546, 173 N.E. 859 (1930)]). In no other way except by activity in the particular field can such knowledge be gained. So it has been recognized that occasional contacts even with one of the parties to the arbitration are neither grounds for disqualification nor dictate a necessity for disclosure (Matter of Cross Props. [Gimbel Bros.], 15 A D 2d 913, aff'd. 12 N Y 2d 806).” 34 App. Div. 2d at 748. See also St. Paul Ins. Companies v. Lusis, 6 Wash. App. at 210. We conclude this issue is without merit. For its second issue Niro contends the trial court erred in not vacating the arbitration award on the basis there was evident partiality and misconduct on the part of arbitrator Maynard Taber. As to the “evident partiality” portion of the issue we note this ground for vacation is limited to a “neutral arbitrator” (K.S.A. 5-412[a][2], Md. Cts. & Jud. Proc. Code Ann. §3-224[b][2] [1980]). Mr. Taber was appointed by Mr. Foley and was not a neutral arbitrator. Was there misconduct by Mr. Taber? In its brief, defendant summarized its evidence of misconduct by Mr. Taber as follows: “The customary procedure of the neutral arbitrator serving as chairman (as delineated in AAA Rules, Section 14 [Commercial Arbitration, Section 15 Construction Industry]) was not followed in this matter. Rather, Taber, the arbitrator appointed by plaintiff, aggressively assumed the duties of chairman and, as pointed out, Taber was assisted by plaintiff in arranging meetings for the arbitrators and preparing notices.” Initially, it should be noted, Niro has cited this Court to the Commercial Rules of the American Arbitration Association, when the appropriate version for this case was the Construction Industry Rules. Section 15 of the Construction Industry Rules of the AAA, which corresponds to Section 14 of. the Commercial Rules, only requires a neutral arbitrator to serve as chairman when such arbitrator has been appointed by the AAA. Section 15 provides: “If the parties have appointed their party-appointed arbitrators or if either or both of them have been appointed as provided in Section 14, and have authorized such arbitrator to appoint an arbitrator within a specified time and no appointment is made within such time or any agreed extension thereof, the AAA shall appoint an arbitrator who shall act as Chairperson. “If no period of time is specified for appointment of the third arbitrator and the party-appointed arbitrators do not make the appointment within seven days from the date of the appointment of the last party-appointed arbitrator, the AAA shall appoint the arbitrator who shall act as Chairperson. “If the parties have agreed that their party-appointed arbitrators shall appoint the arbitrator from the Panel, the AAA shall furnish to the party-appointed arbitrators, in the manner prescribed in Section 13, a list selected from the Panel, and the appointment of the arbitrator shall be made as prescribed in such Section.” The neutral arbitrator was not appointed by the AAA, consequently Section 15 of the Construction Industry Rules of the AAA has no effect. We conclude this issue is also without merit. The third issue is whether the trial court erred in not vacating the arbitration award on the ground the award was procured by corruption, fraud or other undue means. K.S.A. 5-412(a)(l) (Md. Cts. & Jud. Proc. Code Ann. § 3-224 [b][1] [1980]) provides: “[T]he court shall vacate an award where: . “(1) The award was procured by corruption, fraud or other undue means.” To establish fraud in Maryland or Kansas there must be more than a mere preponderance of evidence, there must be clear and satisfactory evidence, First Nat’l Bank v. U.S.F. & G. Co., 275 Md. 400, 411, 340 A.2d 275 (1975), or clear and convincing evidence. Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 7, 605 P.2d 545 (1980); Weigand v. Union Nat’l Bank of Wichita, 227 Kan. 747, Syl. ¶¶ 2, 3, 610 P.2d 572 (1980). In neither state is fraud presumed. The trial court adequately stated Niro’s contentions relative to this issue and the court’s rationale in refusing to vacate the award thereon as follows: “Niro maintained that Foley made a so-called ex parte communication to the arbitrators on September 21, 1981 and as a result, Niro contends the award was procured by corruption, fraud or other undue means of Foley. The so-called ex parte communication by Foley was in the form of a letter brief by counsel for Foley which cited case law in partial response to counsel for Niro’s statement made during the arbitration hearing that he would submit a brief to the arbitrators. (Tr. 407). These contentions do not support a vacation of the arbitration award under the laws of either Maryland or Kansas especially since the arbitrators did not review, confer with respect to, or even discuss the September 21, 1981 .documents submitted by Foley. “The record discloses that counsel for Foley directed his firm’s messenger to take a copy of the September 21, 1981 letter brief to Mr. Martin’s office at the same time the other copies of the letter brief were delivered to the arbitrators. The record also discloses that Mr. Gardner gave Mr. Martin, counsel for Niro, a copy of the letter brief on September 22, 1981. Under these circumstances, the Court would not consider this to be an ex parte communication. “In addition, Niro has not advanced any proof that the letter brief in any way affected or played a part in the decision rendered by the arbitrators. Mr. Chamblin testified that some documents were delivered to his office the morning of the arbitrators’ meeting but ‘the case is closed ... I paid no attention to them. The case was closed. We were going to meet that evening and make a decision and that was it.’ (Chamblin’s December 8, 1981 deposition, p. 8). Mr. Taber testified that‘I didn’t have time . . . They came during the day, and I was busy, and we met at 4:00 o’clock in the afternoon.’ (Taber’s December 8, 1981 deposition, p. 7). Whether Mr. Gardner read the letter before the meeting is of no consequence because he did not participate in the award. “The arguments of Niro also ignore that the letter brief was delivered to the arbitrators'and counsel for Niro on September 21 but the'award was not made until October 16. Between September 21 and October 16 Niro did not file a brief, as it had advised the arbitrators it would, and Niro made no response or objection to the letter brief of Foley. Niro did not object to the letter brief during this period of almost four weeks and Niro cannot now be heard to complain.” We conclude this issue is likewise without merit. The fourth issue is whether the trial court erred in not vacating the arbitration award on the basis the arbitrators exceeded their powers. K.S.A. 5-412(c)(3) (Md. Cts. & Jud. Proc. Code Ann. § 3-224[b][3] [1980]) provides: “[T]he court shall vacate an award where: “(3) The arbitrators exceeded their powers.” Specifically, Niro contends the arbitrators exceeded their powers: (1) by entering an excessive award; (2) by entering an award which was not supported by the evidence; (3) by granting any predecision interest;' and (4) by granting post-decision interest at a rate greater than 10% per annum. The controversy herein involved amounts allegedly due which were in excess of the $843,626 specified in the contract. Foley claimed $416,551 in additional costs and expenses were incurred as a result of changes made by Niro and Niro’s interference in Foley’s performance of the subcontract. The arbitrators heard the conflicting evidence and concluded $247,980 of Foley’s claim was properly chargeable to Niro. In denying Niro’s claim for vacation of the arbitration award based on the ground the arbitrators had exceeded their authority, the trial court stated: “Niro contends that the arbitrators exceeded their authority. Maryland statutes on arbitration expressly provide that ‘the Court shall not vacate the award or refuse to confirm the award on the ground that a Court of law or equity could not or would not grant the same relief.’ Annotated Code of Maryland, Section 3-224(c) [K.S.A. 5-412(a)(5)]. In addition the Court of Special Appeals of .Maryland has held that arbitration awards may be vacated only if they were tainted by improbity or based on a completely irrational interpretation of the contract. O-S Corporation, et al. v. Samuel A. Kroll, Inc., 29 Md. App. 406, 348 A.2d 870 (1975). No such conditions exist in this case and Niro has never asserted or even attempted to meet such a condition to set aside the arbitration award. “Under the law of Maryland a Court is obligated, in reviewing an arbitration decision, even to (judicially accept an arbitrary interpretation of a contract.’ O-S Corporation [29 Md. App. at 410]. This Court does not find any arbitrary or other interpretation of the contract between the parties which would warrant setting aside the award. “The Foley-Niro arbitration award was based upon sufficient legal evidence. The Court of Special Appeals in Maryland as recently as January 8, 1982 in Maryland Port Authority v. C.F. Langenfelder [50 Md. App. 525, 438 A.2d 1374 (1982)] has held that a contractor in a situation similar to Langenfelder was entitled to both prejudgment and postjudgment interest on' its claim. Under both the law of the States of Kansas and Maryland, the arbitration award should and must be confirmed. Niro has offered no credible reason to vacate the award, none exists and thus, Niro’s Motion to Vacate the Arbitration Award is overruled.” In Evans Electrical Constr. Co. v. University of Kansas Med. Center, 230 Kan. 298, Syl. ¶ 5, 634 P.2d 1079 (1981), we said: “Where parties have agreed to be bound by a submission to arbitration, errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nothing in an award relative to the merits of the controversy as submitted, even though incorrectly decided, is ground for setting aside the award in the absence of fraud, misconduct, or other valid objections.” In O-S Corp. v. Samuel A. Kroll, Inc., 29 Md. App. 406, 348 A.2d 870 (1975), cert. denied 277 Md. 740 (1976), the Maryland Court of Special Appeals commented: “[W]hen reviewing the fruits of an arbitrator’s award, a judge may withhold only such as were tainted by improbity or based on a completely irrational interpretation of the contract.” 29 Md. App. at 408-09. Further: “ ‘[A]n award of an arbitrator is not subject to judicial revision unless it is “completely irrational”.’ Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125, 1131 [(3rd. Cir. 1972)].” 29 Md. App. at 409. Succinctly: “We must judicially accept an arbitrary interpretation of a contract by an arbitrator. We shall vacate a completely irrational one.” 29 Md. App. at 410. By couching its direct attack upon the award in statutory terms of the arbitrators’ exceeding their powers, Niro, in points (1) and (2), attempts to have the trial court substitute its judgment for that of the arbitrators on the merits of the dispute. In Dominion Marble Co. v. Morrow, 130 Md. 255, 100 A. 292 (1917), Maryland’s highest court commented: “In such cases it is conceded that the Court will not look into the merits of the matter and review the findings of law or fact made by the arbitrators nor substitute its opinion or judgment for theirs, but will require the parties to submit to the judgment of the tribunal of their own selection and abide by the award.” 130 Md. at 260. See also Chillum v. Button & Goode, 242 Md. 509, 516, 219 A.2d 801 (1966). The reason an arbitration award will not be considered de novo by a court is if it were otherwise, arbitration would only then be a dress rehearsal for litigation rather than an alternative to litigation. As noted recently by the Vermont Supreme Court in R. E. Bean Constr. Co. v. Middlebury Assoc., 139 Vt. 200: “The courts must respect an arbitrator’s determinations; otherwise, those determinations will merely add another expensive and time consuming layer to the already complex litigation process.” 139 Vt. at 204-05. We turn to points (3) and (4) relative to predecision interest and post-decision interest, respectively. In Md. Port Adm. v. C. J. Langenfelder & S., 50 Md. App. 525, 438 A.2d 1374 (1982), cited by the trial court, the Maryland Court of Special Appeals held: “Predecision interest is neither required nor forbidden as a matter of law. “The underlying object, as we have seen, is to make a contractor ‘whole,’ to safeguard him against increased costs engendered by the modification that he is forced to complete. In that regard, the comment of the Senate Committees with respect to the Contract Disputes Act [41 U.S.C. § 601 et seq.] is apposite — that there can be no equitable adjustment until the contractor recovers the entire cost of doing the extra work, and that the cost of money to finance that additional work is a legitimate cost of the work itself That is true whether the cost of the money is in the form of interest paid on borrowed funds or the loss of income on the contractor’s own capital invested in the additional work. We therefore think that compensation for such a cost — the cost of money — is an appropriate element in calculating an ‘equitable adjustment,’ and that the allowance of that cost may be expressed in the form of predecision interest.” 50 Md. App. at 543, It is true the Langenfelder decision limited post-decision interest to 6% per annum. However Langenfelder involved the power of a statutorily created Roard of Contract Appeals — an administrative agency created to resolve contract disputes between the Maryland Department of Transportation and its contractors. Langenfelder does not involve contractual arbitration proceedings under the Uniform Arbitration Act. There is no showing the interest awarded herein was inconsistent with commercial interest rates applicable at the time of the award. We conclude this issue in its entirety is also without merit. The fifth issue is whether the trial court lacked jurisdiction and venue to confirm the arbitration award. In rejecting the challenge to its jurisdiction and venue, the trial court stated: “After this lawsuit was filed, defendant, Niro Atomizer, Inc. (herein “Niro”), filed a motion to stay this lawsuit and to require the issues raised in the lawsuit to be resolved by arbitration in accordance with the contract between the parties. The contract specifically provided that if one party demanded arbitration, the other party had the right to select the site of the arbitration. In its motion, Niro sought to have this arbitration conducted in Baltimore, Maryland. After arbitration was ordered by this Court with the site to be selected by Foley, and after the arbitration was concluded and the award made, Niro then complained that this Court lacked venue and jurisdiction because Foley selected Kansas City, Missouri as the arbitration site and because the arbitration was held in Kansas City, Missouri. “The argument is without merit. Venue is proper and this Court has had jurisdiction over this entire matter since the case was filed. This Court determined that-the Motion of Niro to arbitrate had merit and should be granted but also that such Motion constituted, as it was, a demand by Niro under the contract to arbitrate. Based on this finding, the Court ordered that the issues be arbitrated, as requested by Niro, and that the arbitration be held at a place to be selected by Foley. Foley selected Kansas City, Missouri as the site of the arbitration and both Foley and Niro complied with the Court’s Order without objection. Niro’s belated objection on the situs of the arbitration has no merit.” The contract in question was performed in Johnson County, Kansas. Foley commenced this action to foreclose a mechanic’s lien. Proper service was obtained on Niro. It was Niro who' elected to seek determination of the dispute relative to the additional charges which were the basis of the mechanic’s lien through the contractual arbitration rather than through the judicial mechanic’s lien proceeding. We have no-hesitancy under the circumstances herein to conclude the Johnson Coimty District Court had jurisdiction and venue to confirm the arbitration award. For its final issue Niro contends the trial court improperly, denied Niro a trial on all issues herein.- In Evans Electrical Constr. Co. v. University of Kansas Med. Center, 230 Kan. 298, Syl. ¶ 4, we said: “Where an arbitration award, made under the Uniform Arbitration Act (K.S.A. 5-401 et seq.) and filed for judgment, is attacked by one of the parties, it is not the function of the court to hear the case de novo and consider the evidence presented to the arbitrators.” The trial court held as a matter of law the facts set forth in Niro’s Motion to Vacate the Arbitration Award were inadequate to sustain the motion. We have carefully considered the matters raised in this issue and conclude no reversible error has been shown. The judgment'is affirmed.
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The opinion of the court was delivered by Miller, J.: This is a paternity case, filed pursuant to K.S.A. 38-1101 et seq., by the State of Kansas ex rel. Sheila Hausner against defendant Paul Blackman for a determination of paternity and for child support. A jury trial resulted in a verdict and judgment that defendant is the father of the minor child, Simon Hausner; support was ordered. Defendant appealed; the Court of Appeals, in a unanimous opinion, reversed. State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 648 P.2d 249 (1982). We granted review. The issues are: Is blood test evidence admissible to prove paternity and, if so, did the trial court commit prejudicial error in admitting the particular blood test evidence in this case? Is K.S.A. 23-131 constitutional? And is the verdict and judgment in this case supported by substantial competent evidence? The Court of Appeals held that expert testimony, resulting from certain sophisticated and recently-developed blood test examinations, is admissible to show the probability of paternity, but that the trial court erred in admitting the specific blood test evidence offered in this case; that K.S.A. 23-131 is constitutional; and that the evidence was insufficient to support the verdict. We agree. Expert opinion, based upon the results of blood tests, has been received in paternity cases for perhaps the last fifty or sixty years, but until recent years that evidence has been admissible only for the purpose of showing that the putative father could not be the father of the child; as a general rule, it was admissible only to show nonpaternity. The following summary of the development of blood tests and the value of blood test evidence is given in the following quotation from Chief Justice Burger’s unanimous opinion in the case of Little v. Streater, 452 U.S. 1, 68 L.Ed.2d 627, 101 S.Ct. 2202 (1981): “The discovery of human blood groups by Dr. Karl Landsteiner in Vienna at the beginning of this century, and subsequent understanding of their hereditary aspects, made possible the eventual use of blood tests to scientifically evaluate allegations of paternity. P. Speiser & F. Smekal, Karl Landsteiner 89-93 (1975). Like their European counterparts, American courts gradually recognized the evidentiary value of blood grouping tests in paternity cases, and the modern status of such tests has been described by one commentator as follows: “ ‘As far as the accuracy, reliability, dependability — even infallibility — of the test are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely. . . . [Tjhere is now . . . practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity.’ S. Schatkin, Disputed Paternity Proceedings §9.13 (1975). “The application of blood tests to the issue of paternity results from certain properties of the human blood groups and types: (a) the blood group and type of any individual can be determined at birth or shortly thereafter; (b) the blood group and type of every individual remain constant throughout life; and (c) the blood groups and types are inherited in accordance with Mendel’s laws. Id., § 5.03. If the blood groups and types of the mother and child are known, the possible and impossible blood groups and types of the true father can be determined under the rules of inheritance. For example, a group AB child cannot have a group O parent, but can have a group A, B, or AB parent. Similarly, a child cannot be type M unless one or both parents are type M, and the factor rh’ cannot appear in the blood of a child unless present in the blood of one or both parents. Id., §§ 5.03 and 6.02. Since millions of men belong to the possible groups and types, a blood grouping test cannot conclusively establish paternity. However, it can demonstrate nonpaternity, such as where the alleged father belongs to group O and the child is group AB. It is a negative rather than an affirmative test with the potential to scientifically exclude the paternity of a falsely accused putative father. “The ability of blood grouping tests to exonerate innocent putative fathers was confirmed by a 1976 report developed jointly by the American Bar Association and the American Medical Association. Miale, Jennings, Rettberg, Sell, & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247 (Fall 1976). The joint report recommended the use of seven blood test ‘systems’ — ABO, Rh, MNSs, Kell, Duffy, Kidd, and HLA — when investigating questions of paternity. Id., at 257-258. These systems were found to be ‘reasonable’ in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men. Id., at 254, 257-258. “The effectiveness of the seven systems attests the probative value of blood test evidence in paternity cases. The importance of that scientific evidence is heightened because ‘[tjhere are seldom accurate or reliable eyewitnesses since the sexual activities usually take place in intimate and private surroundings, and the self-serving testimony of a party is of questionable reliability.’ Larson, Blood Test Exclusion Procedures in Paternity Litigation: The Uniform Acts and Beyond, 13 J. Fam. L. 713 (1973-1974). As Justice Brennan wrote while a member, of the Appellate Division of the New Jersey Superior Court: “ ‘[I]n the field of contested paternity . . . the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity. “ ‘The value of blood tests as a wholesome aid in the quest for truth in the administration of justice in these matters cannot be gainsaid in this day. Their reliability as an indicator of the truth has been fully established. The substantial weight of medical and legal authority attests their accuracy, not to prove paternity, and not always to disprove it, but “they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts” . . . .’ Cortese v. Cortese, 10 N.J. Super. 152, 156, 76 A.2d 717, 719 (1950).” 452 U.S. at 6-8. (Emphasis supplied.) Little v. Streater dealt with the claim of an indigent defendant, named as the father of an illegitimate child in a paternity action filed in Connecticut, of the denial of his due process and equal protection rights under the Fourteenth Amendment by application of a Connecticut statute which denied him access to blood tests for which he could not pay. The Supreme Court held that the cost requirement of the state statute did in fact effect a denial of the appellant’s constitutional rights. While the issue here differs from that in Streater, the opinion of the court demonstrates the importance of blood test evidence to establish non- paternity, and the quoted portion of the opinion is illuminating. In 10 Am. Jur. 2d, Bastards §§ 32 and 118, we find the following discourse on blood test evidence: “Serological blood tests to determine type or group are of especial value in cases of disputed paternity because, although they cannot indicate with precision that a particular person is the father of the child whose paternity is in issue, in many instances they can establish that an alleged father could not have been the sire. The accuracy of such tests, when performed and interpreted by properly qualified persons, is generally recognized and the results are generally held admissible for the purpose of establishing nonpaternity.” § 32, p. 867. “Blood grouping tests are particularly significant in bastardy proceedings, because when properly administered and interpreted, the results may categorically exclude the paternity of the putative father, and in some jurisdictions the courts may require the mother, child, and putative father in filiation proceedings to submit to blood grouping tests .... “The general rules that evidence of blood grouping test results excluding paternity is admissible, and that evidence of results failing to establish nonpaternity is inadmissible, apply to bastardy proceedings.” § 118, pp. 928-29. The rule with respect to the receipt in evidence of blood test results in bastardy proceedings is stated in 10 C.J.S., Bastards § 82 (Supp. 1982), as follows: “[I]t has been held that even in the absence of statutory authority, the results of blood tests are admissible in evidence .... In any event, the results of a blood test are admissible in evidence only where definite exclusion or nonpaternity is established.” (Emphasis supplied.) In 1 Wigmore on Evidence § 165c (3rd ed. 1940), we find the following comment: “[T]he blood-composition of a child may be some evidence as to the child’s paternity. But thus far this trait (in the present state of scientific discovery as generally accepted) can be used only negatively, i.e. to evidence that a particular man P is not the father of a particular child C.” (Emphasis in original.) pp. 610-11. In Annotation on Blood Grouping Tests, found in 46 A.L.R.2d 1000 et seq., we find the general rule stated in § 16: “Evidence of the results of blood grouping tests which fail to establish nonpaternity is generally held inadmissible in disputed paternity proceedings.” p. 1036. Most of the authority quoted above is based upon cases decided prior to 1970, and upon the state of accepted medical and scientific knowledge and practice at the time the cases were decided. The general rule was clear: Blood test results, when performed by and presented during the testimony of a qualified expert in the field, were admissible to prove nonpaternity, and inadmissible to establish paternity because scientific expertise at that time was unable to provide an acceptable and accurate estimate or probability of paternity. In recent years, however, a method of blood testing with a much higher exclusion rate, the human leukocyte antigen (HLA) test, has increasingly been utilized in paternity actions. The HLA test involves a method of tissue typing which detects antigens in white blood cells. Antigens are produced under genetic control by genes. The HLA test alone has an exclusion rate of 78 to 80 percent, and when used in addition to the six other basic blood group systems tests, ABO, Rh, MNSs, Kell, Duffy and Kidd, produces an exclusion rate of 91 to 95 percent. See Forrest, The Legal Implications of HLA Testing for Paternity, 16 J. Fam. L. 537 (1977-1978); Terasaki, Resolution of HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J. Fam. L. 543 (1977-1978); and for recent cases where HLA tests were admitted in paternity actions see Cramer v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. 865 (1979); J. H. v. M. H, 177 N.J. Super. 436, 426 A.2d 1073 (1980); Mtr Edward K. v. Marcy R., 106 Misc. 2d 506, 434 N.Y.S.2d 108 (1980); and Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490 (1982). Judge Rees’s well-reasoned and well-documented discussion in the Court of Appeals opinion in this case bears repeating: “The generally accepted recommendation and practice of the scientific community is to calculate likelihood of paternity for a non-excluded alleged father only if the serologic tests used for exclusion of paternity have a cumulative mean probability of exclusion of 90 percent or more. Abbott and Sell, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam. L.Q. 247, 256-258 (1976); 16 Trial at 48; 54 N.Y.U. L. Rev. at 1161. “When the evaluated genetic markers and patterns for a non-excluded alleged father are obtained from blood tests having a 90 percent or higher cumulative exclusion probability, the likelihood of paternity for that individual is calculated by use of Bayes’ Theorem as applied by Essen-Moller. Terasaki, Resolution by HLA Testing of1000 Paternity Cases Not Excluded by ABO Testing, 16 J. Fam. L. 543, 544 (1977-78); 10 Fam. L. Q. at 261; 54 N.Y.U. L. Rev. at 1146-1149. “It is through compliance with these steps that otherwise legally satisfactory opinion testimony of likelihood of paternity is rendered admissible evidence to prove paternity. “Deserving mention are two recent Kansas decisions involving blood tests. In Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490 (1982), a paternity action, it was held an opinion of likelihood of paternity arrived at by calculation based upon the results of human leukocyte antigen (HLA) tests was admissible to prove paternity. In contradistinction to the case before us, the Tice HLA tests were utilized to establish likelihood of paternity, not merely to establish probability of exclusion. The particular holding in Tice, based upon the foundation evidence there presented as well as the judicial notice taken, was that the results of HLA paternity inclusion blood testing and calculation is sufficiently established and accepted scientific evidence to be valid evidence to prove paternity. Of course, the admission of such a conclusion into evidence in a paternity action is subject to satisfaction of the usual relevant legal standards. 7 Kan. App. 2d at 513. “In State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981), a criminal action, comparative analysis of the defendant’s blood, the victim’s blood, and blood found at the victim’s apartment, was conducted to establish the defendant’s presence at the crime scene. The test findings and resultant opinion involved consideration of blood markers but paternity was not the subject. The analyses made were for the ABO blood groups or types, six enzyme markers and a protein marker. It was held the reliability of the analysis method used, Multi-System analysis, was shown by the evidence to be sufficient to permit the produced findings to be admitted into evidence; the analyst was qualified to perform the tests and make the findings; and the analyst was qualified to give an opinion of the probability that the blood found in the apartment was the defendant’s. The Supreme Court restated and applied the standard for admissibility of scientific evidence enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). In short, that standard is that an expert scientific opinion is admissible evidence if it is based upon scientific technique the validity of which is generally accepted within the relevant scientific community. “The growing popularity and acceptance of likelihood of paternity opinion evidence founded upon HLA test results is understandable. See Tice, 7 Kan. App. 2d at 513. The three basic blood group systems tests (ABO, RH and MNSs) as well as the Kell, Duffy and Kidd blood group systems tests are generally available and reliable. The cumulative probability of exclusion for these six tests is reported to be 63 percent to 72 percent. The HLA test alone has a probability of exclusion of 78 percent to 80 percent and when it is used in addition to the six other tests, the probability of exclusion apparently rises to at least 91 percent to 95 percent. 10 Fam. L. Q. at 256-258; 16 Trial at 48. At this last level of probability of exclusion, acceptable calculation of likelihood of paternity is possible.” 7 Kan. App. 2d at 696-97. The serologist who testified at the trial of this case had not performed the HLA or any comparable test; he had only performed a series of blood grouping tests. He testified that he would expect an exclusion rate of about seventy percent on the basis of those tests. He expressed no opinion as to probability of paternity, and acknowledged that all that his tests accomplished was to establish that the defendant could not be excluded as the father of the child. The trial court denied a motion in limine which sought the suppression of this evidence and stated: “The Court’s reasoning is this: That while the evidence may not conclusively show paternity it is some indication of paternity by limiting the number of people who might be. Further, the fact that the defendant refused to take further testing which was offered to him and which would further eliminate the group of people who might he the father of this child. “[T]he Court intends to fully advise the jury as to the weight of testimony that is to be given [by] experts . . . .” (Emphasis added.) There is no evidence at trial that further testing was offered to the defendant and that he refused to take such tests. The evidence admitted did not tend to establish that this defendant was the father of the child. As Judge Rees concluded: “[E]vidence of the failure of a man to be excluded as the result of paternity exclusion tests is not proof of paternity. It has no tendency in reason to prove paternity. It does not render an inference of paternity more probable than it would be without that evidence. It is neither probative nor relevant. It is inadmissible in a paternity action. . . . “We believe lay jurors tend' to give considerable weight to ‘scientific’ evidence presented by ‘experts.’ It carries the mantle of impartial physical, or objective, fact. Uniquely applicable to the case before us is the following language of the Michigan Supreme Court in People v. Nichols, 341 Mich. 311, 331-332, 67 N.W.2d 230 (1954): “ ‘All the scientific evidence in this case and in the cited cases is in accord that the results of blood tests may rule out but can never establish paternity. In Stroh v. Hinchman [37 Mich. 490], this Court said (p 497): “All evidence should have some legitimate tendency to establish or disprove the fact in controversy, and whatever has no such tendency should be rejected.” “ ‘The evidence here complained of had not the slightest probative value or tendency to prove defendant’s paternity. Accordingly, it should have been rejected. “ ‘That the error was . . . prejudicial, there can be no doubt here. . . . The use of scientific apparatus and tests and expert testimony as to scientific results, placed before the jury with an instruction that they could accord such weight thereto, bearing on the controverted issue, as they might deem proper, could not have failed to mislead the jurors into believing that this totally irrelevant evidence might be considered as having probative value. The average juryman is bound to be impressed by an array of scientific material and data presented through the testimony of expert witnesses under circumstances in which its utter irrelevancy is not made clear, but, on the contrary, it is permitted to pose as relevant testimony to be weighed by the jury. This was prejudicial to defendant.’ “[T]he erroneous admission of Beck’s testimony was substantially and unfairly prejudicial to the defendant.” 7 Kan. App. 2d at 698-99. We agree. In Hurd v. State, 125 Ga. App. 353, 187 S.E.2d 545 (1972), the court held that blood grouping test results which did not es tablish nonpaternity, but indicated only that the defendant was among forty-three percent of the male population that could have fathered the child, were inadmissible. The court noted: “[T]he test results were valueless but were permitted to pose as relevant testimony to be weighed by the jury, and could not have failed to mislead the jurors into believing that this totally irrelevant evidence might be considered as having probative value.” 125 Ga. App. at 357. This court has held evidence of blood grouping tests is relevant and admissible in criminal actions. Recent cases, however, indicate that more advanced testing has come into use, replacing the earlier Landsteiner tests. State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981), discussed by the Court of Appeals, was a case involving rape, murder and burglary charges. An analysis of the defendant’s blood, the victim’s blood, and blood found at the victim’s apartment was conducted. The blood was analyzed for the ABO blood types, six enzyme systems, and a protein system. It was determined that the person who had intercourse with the victim was a nonsecretor and both the defendant and the victim were nonsecretors. An expert testified that only six-tenths of one percent of the population would have the defendant’s combination of blood factors. We held the evidence admissible. It will be noted that the defendant in Washington was identified as being one of only six-tenths of one percent of the population having the combination of factors placing him at the scene; in the case before us the expert testified that he would expect an exclusion of seventy percent; therefore, the defendant was within thirty percent, more or less, of the population having the requisite blood factors. This evidence does not zero in upon and pinpoint the defendant, as did the evidence in Washington. A distinction has been drawn between the admissibility of blood grouping tests in criminal cases and the use of such test results in disputed paternity proceedings. Many criminal cases have rejected the rule prevalent in paternity cases and have refused to apply it in criminal cases, holding that evidence of blood grouping tests is relevant and admissible as a corroborating fact tending to show the accused’s guilt. See Annot., Admissibility, Weight, and Sufficiency of Blood-Grouping Tests in Criminal Cases, 2 A.L.R. 4th 500; Annot., 46 A.L.R.2d 1000; and People v. Lindsey, 84 Cal. App. 3d 851, 863-64, 149 Cal. Rptr. 47 (1978). The evidence is corroborative only, and is not in itself sufficient to support the conviction of one accused of a crime. We summarize our conclusions relative to the admission of blood test evidence in paternity cases, when given by a qualified expert in the field, as follows: (1) Evidence of an alleged father’s exclusion by blood tests is admissible in a paternity case. (2) Blood test evidence which goes no further than to fail to exclude an alleged father is not proof of paternity and is inadmissible in a paternity case. (3) Scientifically reliable evidence of an alleged father’s likelihood of paternity, meeting relevant legal evidentiary standards, is admissible in such an action. We agree with the Court of Appeals that the admission of Mr. Beck’s testimony was error, and that it was substantially and unfairly prejudicial to the defendant and constituted reversible error. K.S.A. 23-131 provides in pertinent part as follows: “Whenever the paternity of a child is in issue in any action or judicial proceeding in which the mother and alleged father of such child are parties, the court . . . may order the mother, child and alleged father to submit to blood tests. . . . The tests shall be made by experts qualified as examiners of blood types who shall be appointed by the court. The experts shall be called by the court as witnesses to testify as to their findings and shall be subject to cross-examination by the parties.” We agree with the Court of Appeals that this statute is constitutional. It does not give a blanket endorsement to blood test evidence, nor does it make all such evidence admissible; in our view, the testimony must be considered by the court in the same light as other expert testimony. If the testimony is not reliable or if it does not constitute probative evidence as to the issues, the court need not admit the evidence. What we have heretofore said in this opinion indicates our view of the admissibility of such evidence and we think that the statute must be construed in conformity therewith. Finally, we turn to the issue of whether the verdict and judgment is supported by substantial competent evidence. The Court of Appeals discussed this issue as follows: “The child was born July 8, 1978. Nine months prior to that was October 8, 1977. Depending upon which findings and testimony of the mother’s attending physician are accepted, the limits of the period of time within which conception occurred were October 1, 1977, and November 21, 1977. “The defendant admitted to a single act of sexual intercourse. The question was when this occurred. According to defendant, it was on August 20 or 27,1977, both Saturdays. The mother alleged it was on another Saturday, that is, October 8, 1977, but her trial testimony was fraught with uncertainty and contradiction. Her story was not direct and positive. See State, ex rel., v. Wright, 140 Kan. 679, 684, 38 P.2d 135 (1934). She conceded it was the Saturday night she and defendant attended the showing of a particular film at a particular theater in Kansas City. The theater manager testified the film was last shown on August 30, 1977. By an Iowa traffic citation issued to defendant, an Ames, Iowa, motel receipt, and the testimony of a third party, there was independent evidence the defendant was in Iowa, not in the metropolitan Kansas City area, the night of October 8, 1977. “The defendant and the mother had a second and less intimate ‘date.’ There was documentary evidence supporting the defendant’s testimony this was on September 10, 1977, not a week or so after October 8, 1977. “We conclude the evidence was insufficient to support the verdict and judgment. It is true it has been said paternity may be adjudged solely upon the mother’s testimony of an act of sexual intercourse with the putative father at or near the time the child was conceived and that he is the father (State, ex rel., v. Wright, 140 Kan. at 684), but the precedential case authority for that statement does not support a paternity judgment on evidence as uncertain and flimsy as the evidence in this case. State, ex rel., v. Wright, 140 Kan. at 684 (testimony of mother ‘direct and positive’); State, ex rel., v. Lyons, 107 Kan. 312, 313, 191 Pac. 281 (1920) (mother’s description of the parties’ relations ‘covered so much time and was so full of details . . . it is hard to believe they were manufactured, and . . . we find nothing in the record to render them incredible.’)” 7 Kan. App. 2d at 700-01. We agree with the Court of Appeals rationale and with its conclusion. The plaintiff s physician testified that he performed a sonogram on Sheila Hausner. The test, regularly used and recognized in the medical world, indicates the age of the fetus and is considered fairly reliable, with perhaps a ten-day variance either way. On June 16, 1978, the test then administered indicated a fetus of from thirty-one to thirty-one and one-half weeks’ gestation. Adding ten days to thirty-one and one-half weeks, or a total of thirty-three weeks, indicates that the time of conception was November 8, 1977. Plaintiff was uncertain as to the date intercourse occurred, but she was positive that it occurred on the night the parties attended a movie entitled “Fire Sale.” There was positive and uncontradicted testimony that the last showing of that film at the theater which the parties attended occurred on August 30, 1977. The child was born on July 8, 1978; the physician testified that he did not feel that the child was overdue, and that it could have been from one to two weeks premature. The plaintiff testified that the child was a full-term baby, and that it was not premature. There was no testimony to indicate that the child was six or more weeks overdue, as would certainly have been the case if the child had been conceived in August 1977. We conclude that the verdict and judgment in this case are not supported by substantial competent evidence. The opinion of the Court of Appeals is affirmed and the judgment of the district court is reversed.
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The opinion of the court was delivered by Herd, J.: This is an appeal from a jury verdict in a medical malpractice action. Linda Allman was a 28-year-old widow and the mother of two children. In an effort to control her weight she consulted James F. Holleman, Jr., an osteopathic physician. At the time of the initial consultation, April 2, 1975, Linda was taking Ovulen-21, a birth control pill. She informed Dr. Holleman she also had taken tranquilizers and was taking thyroid medication. She reported she suffered from sluggishness, shortness of breath, and frequent headaches. Dr. Holleman placed her on a weight reduction program in-which she would return to his office every week to be weighed and given a vitamin injection. This procedure was performed by a nurse. Every fourth week Linda would be examined by Dr. Holleman. Linda saw Dr. Holleman again on April 30 and May 28. The weight reduction program appeared to be working. During the May 28th visit, however, Linda complained of being nervous. Dr. Holleman noticed she had a slightly elevated pulse rate. He placed her on stronger tranquilizers to try and control her anxiety. After May 28, 1975, Linda stopped coming to Dr. Holleman’s office for her weekly visits. She did not see Dr. Holleman personally until July 7, 1975, approximately one week later than her scheduled appointment. During the July 7 visit she related to Dr. Holleman she was suffering from chest pains so sharp they made her cry. She also complained of pain and tenderness in the stomach area. The chest pains had been present for approximately two weeks; the stomach discomfort had increased over the previous four days. However, she indicated there had been no recent trauma to the abdominal area. Finally, she reported two instances of dark stools. That same day, July 7, 1975, Ms. Allman was admitted to Providence-St. Margaret Hospital for diagnostic tests. Although Dr. Holleman felt the tests could have been performed on an outpatient basis, Ms. Allman insisted on admission to the hospital. Dr. Holleman commenced tests and Rolando R. Mesina, a medical doctor employed by Dr. Holleman, was called in for consultation after which Dr. Mesina undertook the primary care of Ms. Allman. After several days of tests, on July 13, 1975, Dr. Mesina performed an abdominal paracentesis and found blood in the abdominal cavity. Exploratory surgery was performed and a ruptured spleen was discovered and removed. After surgery, the patient was transferred to the intensive care unit. By the following morning, July 14, 1975, Ms. Allman had developed pulmonary edema, a condition in which the lung tissue retains too much fluid causing the patient to have respiratory problems. Dr. Sherman Zaremski was contacted in consultation and he intubated Ms. Allman with an endotracheal tube, a device placed through the throat and vocal cords into the trachea. This tube was then connected to a ventilator which assisted Ms. Allman’s respiration. During the afternoon of July 16, 1975, Ms. Allman struggled against the discomfort of the endotracheal tube. At about 6:40 p.m. that evening she succeeded in dislodging the tube. Dr. John Cotter was then called from the hospital emergency room. He reinserted the tube. After making sure everything was satisfactory Dr. Cotter returned to the emergency room. Shortly thereafter the tube became dislodged again. This discovery was made by Dr. Michael Boggan as he walked by Linda’s room after seeing one of his patients. She was cyanotic and had a slow heart rate. Dr. Boggan was too late. His efforts to revive Ms. Allman were unsuccessful and she died. This action was brought on behalf of Amy and Shane Allman, minor children of Linda Allman, by their grandfather and guardian, Milton Watters, for the alleged wrongful death of their mother. Mr. Watters, as executor of the estate of Linda Allman, also brought his own action for the conscious pain and suffering of the decedent. The total amount of damages sought was $775,000. Initial defendants included Doctors Holleman, Mesina, Cotter and Zaremski; two anesthesiologists; a nurse anesthetist and “Anesthesiology Chartered”; Providence-St. Margaret Health Center; Emergency Physicians, Inc.; and G. D. Searle and Company, the makers of Ovulen-21. The nurse anesthetist was dismissed; the anesthesiologists and “Anesthesiology Chartered” settled for $40,000; Providence-St. Margaret Health Center settled for $65,000; G. D. Searle and Company settled for $10,000; and Dr. Zaremski settled for $40,000. Trial lasted from September 14 to 30, 1981. The jury found the total amount of damages sustained by the plaintiffs was $150,000. Fault was apportioned as follows: a. Dr. James F. Holleman, Jr. and Dr. Rolando Mesina........................ 11% b. Dr. John B. Cotter and Emergency Physicians, Inc............................ 0% c. Linda Allman............................. 40% d. Providence-St. Margaret Health Center......... 49% e. Dr. Sherman C. Zaremski................... 0% f. Dr. Archibald O. Tetzlaff.................... 0% g. Searle & Company......................... 0% Plaintiffs appeal. Appellants first argue the trial court erred in submitting the fault of Linda Allman to the jury. The trial court instructed the jury on the appellants’ theory of the case. They alleged appellees Holleman and Mesina were negligent in the following respects. “1. In failing to timely diagnose the extensive free abdominal bleeding of Linda Allman; “2, In failing to do blood volume studies on Linda Allman; “3. In failing to timely perform the abdominal paracentesis on Linda Allman; “4. An undue delay in doing surgical exploration on Linda Allman; “5. In failing to obtain timely medical consultation of a diagnostician or internal medicine physician.” The jury was also instructed on the appellants’ allegations that Dr. Cotter was negligent in the manner in which he reinserted the endotracheal tube after Linda Allman had dislodged it. Then, over appellants’ objection, the trial court instructed the jury as follows: “The defendants deny they were at fault and that they exercised the standard of care required under the circumstances. Defendants further claim that if the plaintiffs sustained damage or injury, it was the fault of Linda Allman in one or more of the following respects: “(1) The taking of Ovulen 21 birth control pills; “(2) Failing to give a complete and accurate medical history; “(3) Delay in seeking medical attention for the condition for which she was hospitalized and/or the condition from which she ultimately died; “(4) Attempting to remove the endotracheal tube, removal of the endotracheal tube and/or causing loosening or removal of the endotracheal tube. “The defendants have the burden of proof that their claims are more probably true than not true.” It is undisputed a party is entitled to an instruction explaining his theory of the case where evidence is introduced in support thereof. Shawnee Township Fire District v. Morgan, 221 Kan. 271, 277, 559 P.2d 1141 (1977). An appellate court’s task is to determine whether, when considered as a whole, the jury instructions properly and fairly state the law as applied to the facts of the case. If they do, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 601, 545 P.2d 334 (1976). See also Timsah v. General Motors Corp., 225 Kan. 305, 315, 591 P.2d 154 (1979). The controversy here is over the question of whether evidence was introduced which tended to show Linda Allman was negligent. “Negligence,” as the trial court instructed the jury, “is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstances then existing.” See also PIK Civ. 2d 3.01 (1977). The court also instructed the jury with regard to causation, stating: “A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which claim is made.” This court’s task, then, is to determine if there is evidence Linda Allman’s actions exhibited a lack of ordinary care and, if so, whether that lack of ordinary care contributed to her death. The first act of alleged negligence on the part of Ms. Allman was her voluntarily taking Ovulen-21 birth control pills despite the warning on the package. » Linda Allman took the birth control pills pursuant to a doctor’s prescription. This fact, along with the widespread disregard of warning labels on packages, prohibits a finding of fault on the part of Ms. Allman. Even though there is a recognizable risk, conduct, to be negligent, must be unreasonable. Prosser, Law of Torts § 31 (4th ed. 1971). As we are becoming constantly more aware, nearly all human acts carry with them some degree of risk. When that risk is slight enough that it is commonly disregarded, however, the standard of ordinary care is not violated. Such is the case here with the taking of birth control pills. For an analogous situation, see Sawka v. Prokopowycz, 104 Mich. App. 829, 306 N.W.2d 354 (1981), where the court held it was error to submit the issue of the plaintiff s contributory negligence for smoking cigarettes in an action based on the failure to diagnose lung cancer. The concept of fault also requires a causal connection between the conduct in question and the injury complained of. A negligent act is the proximate cause of an injury only when the injury is the natural and probable consequence of the wrongful act. Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 552 P.2d 938 (1976). Here any connection between Ms. Allman’s death and her taking Ovulen-21 is speculative and remote. Her death was caused by the dislodging of the endotracheal tube. As indicated above, this action was brought in part to recover for the conscious pain and suffering of Linda Allman which occurred before her death. The symptoms Linda sought medical treatment for had some similarity to the warnings listed on the birth control pills. Thus, the taking of the pills could possibly be relevant to pain and suffering. The trial court, however, made no distinction between wrongful death and pain and suffering in its instructions. As such, the jury instructions were misleading and confusing. The second assertion of negligence on the part of Linda Allman was her alleged failure to give an accurate medical history. The evidence in the case indicated it was very unusual for a ruptured spleen to occur without some prior trauma to the area. Ms. Allman never indicated any trauma when she related her medical history. Thus, the appellees contend the jury could easily infer she gave an inaccurate history. They provided, however, no evidence that she did in fact give an inaccurate history. Further, as the warnings on the birth control pill package indicated, abnormal blood clotting was a risk which might lead to an injury such as a ruptured spleen. The giving of an inaccurate medical history could be a negligent act, but here there is no evidence of such an act. With regard to causation on this issue there was again no distinction in the instructions between the wrongful death action and the claim for conscious pain and suffering. The failure to give an accurate medical history would, have been more closely connected to Linda Allman’s conscious pain and suffering than to her actual death. The court’s failure to differentiate between the claims made on behalf of Linda Allman’s children and those made by her estate also creates a problem with regard to the next act of alleged negligence, Linda Allman’s delay in seeking medical treatment. Indeed, there was evidence Ms. Allman had been experiencing rather severe symptoms for two weeks prior to July 7, 1975. There was also evidence she was a week late in keeping her appointment with Dr. Holleman for her monthly checkup. Although the delays could have contributed to her conscious pain and suffering, it certainly had nothing to do with the immediate cause of her death — the removal of the endotracheal tube. The final area in which Linda Allman was allegedly negligent was the part she played in causing her endotracheal tube to become dislodged. The evidence indicated Linda Allman was restless prior to the time of her death and had to be placed in restraints for the purpose of preventing the tube from dislodging. Indeed, she had already extubed herself once. The question here, however, concerns whether her actions amounted to negligence. According to the trial court’s instructions Linda Allman could be considered negligent if she failed to do what an ordinary person would do under the same circumstances. The evidence indicated it is normal for an endotracheal tube to become dislodged when a patient is restless or sweaty. In this respect Linda Allman did nothing out of the ordinary. She was in intensive care because she needed more than ordinary assistance. Under such circumstances it would take strong evidence Ms. Allman was consciously responsible for the removal of the tube. Defendants introduced no such evidence. We hold one in intensive care is not negligent in inadvertently removing life support equipment. We find no evidence of negligence on the part of Ms. Allman. Appellants also argue the trial court erred in allowing evidence of the resources available to Linda Allman’s children as a result of the death of their father, James Allman. Mr. Allman had been killed in an occupational accident approximately one year earlier. Prior to trial appellants moved the trial court to exclude all evidence regarding benefits received by the Allman children. The trial court overruled this motion except that it excluded evidence of “any insurance policy benefits received by plaintiffs as a result of the death or treatment of Linda Allman.” During the direct examination of Milton Watters appellants’ counsel inquired as to why Mr. Watters had not attempted to adopt the Allman children. Mr. Watters replied that adoption “would interfere with their social security rights.” During cross-examination of Mr. Watters opposing counsel was permitted to elicit information from him of the total amount of social security received and the amount of a trust fund available to the children from their father’s estate. Except as otherwise required by statute or constitution, all relevant evidence is admissible. See K.S.A. 60-407(/). Thus, the court first must decide whether the evidence regarding benefits received by the Allman children was relevant. The action brought on behalf of Shane and Amy was for the wrongful death of their mother. A wrongful death action may be brought by any of the deceased’s heirs at law to obtain damages resulting from the death. K.S.A. 60-1901 and 60-1902. Except for pecuniary loss, damages in a wrongful death action cannot exceed $25,000. K.S.A. 60-1903. Thus, any large recovery by a plaintiff in a wrongful death action will consist mainly of pecuniary damages. According to Black’s Law Dictionary 1343 (3rd ed, 1933), pecuniary loss in a wrongful death action refers to: “the reasonable expectation of pecuniary benefit from the continued life of the deceased, to be inferred from proof of assistance by way of money, services, or other material benefits rendered prior to death, [Citations omitted.] ‘Pecuniary loss’ is a term employed judicially to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation.” The evidence of benefits received from Mr. Allman’s estate was admitted on the theory it would tend to reduce the amount of money Ms. Allman would have provided for the support of her children. Appellants argue the evidence was irrelevant and should have been excluded under the “collateral source” rule. This rule provides “benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.” Pape v. Kansas Power & Light Co., 231 Kan. 441, 446, 647 P.2d 320 (1982). See also Selgado v. Commercial Warehouse Company, 86 N.M. 633, 526 P.2d 430 (1974); Cagle v. Atchley, 127 Ga. App. 668, 194 S.E.2d 598 (1972). We agree. As the definition illustrates the collateral source rule is merely a species of the relevancy doctrine. Here the question for the jury was the value of Ms. Allman’s lost services and monetary contributions to the children. The fact the children received some assistance from another source has nothing to do with the services and support provided by Ms. Allman herself. We hold it was error for the trial court to admit evidence of resources available to the children from other sources. The judgment of the trial court is reversed and this case remanded for a new trial.
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The opinion of the court was delivered by Holmes, J.: Defendant, American Family Mutual Insurance Company (American Family), appeals from a judgment entered upon a jury verdict in an action by Gerald E. Thomas to recover for storm damage to his residence. Thomas was the insured in a “dwelling owners policy” insuring his residence at the time a windstorm caused damage to his roof. American Family attempted to settle the loss but its offer was refused and Thomas filed suit seeking damages in the amount of $3,165.19. The jury returned a verdict of $2,545.84, which was reduced by the trial court to $2,445.84 to take into account a $100.00 deductible clause in the policy. Judgment for Thomas was entered in the amount of $2,445.84 and American Family has appealed asserting several trial errors. We affirm. On September 12, 1980, a severe windstorm caused a tree to fall upon appellee’s home doing considerable damage to a portion of the roof. Additional facts will be stated as they become relevant to the issues raised on appeal. The first three issues raised on appeal all concern the trial court’s determination that depreciation could not be considered in arriving at the amount of the loss. The three issues will be considered together. The insurance policy at issue in this case provides: “[T]his company . . . does insure the insured named in the declarations and legal representatives, to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture, nor in any event for more than the interest of the insured . . . .” (Emphasis added.) Nowhere in the policy does it provide that the cost of repair is to be reduced by a depreciation factor and our statutes make no such provision. Although the policy does not define “actual cash value,” if the property were wholly destroyed then the “actual cash value of the property at the time of loss” would be determined by statute. K.S.A. 40-905(a) provides: “Whenever any policy of insurance or an increase in the amount of coverage in an existing policy of insurance shall be written to insure any improvements upon real property in this state against loss by fire, tornado, windstorm or lightning, and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or the insured’s assigns, the amount of insurance written in such policy shall be taken conclusively to he the true value of the property insured, and the true amount of loss and measure of damages, and the payment of money as a premium for insurance shall be prima facie evidence that the party paying for such insurance is the owner of the property insured.” (Emphasis added.) The policy issued by appellant provided $20,000.00 property damage coverage for appellee’s dwelling, along with other coverage not involved in this action. In the event the property was “wholly destroyed” the policy coverage would be conclusively presumed to be the value of the property without any depreciation being taken into consideration. Should a partial loss under the same policy require that the cost of repair be reduced by depreciation on the property? We think not. The policy issued by American Family insured Thomas against loss “to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property.” Clearly the policy contemplates payment for a partial loss to the property and appellant does not contend otherwise. The specific issue is whether “actual cash value” for a partial loss contemplates a reduction in the cost of repair for depreciation on the damaged property. In American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, 658 P.2d 1015 (1983), we recently set out a number of well-recognized rules for construction of insurance contracts. We held: “Insurance policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense.” Syl. ¶ 2. (Emphasis added.) “The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting or susceptible of more than one construction, the construction most favorable to the insured must prevail.” Syl. ¶ 4. “The test to be applied in determining the intention of the parties to an insurance policy is not what the insurer intended the policy to mean, but what a reasonable person in the position of the insured would understand it to mean.” Syl. ¶ 6. The instant policy does not appear to us to be ambiguous. It does not provide for any reduction in the cost of repairs based upon depreciation and it is not for us to read such a provision into the policy. Duffin v. Patrick, 212 Kan. 772, Syl. ¶ 3, 512 P.2d 442 (1973). Appellant relies upon U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co., 6 Kan. App. 2d 244, 627 P.2d 1147, rev. denied 229 Kan. 671 (1981), in asserting that a depreciation factor must be applied to the cost of repair in arriving at the insurable loss suffered by appellee. In U.S.D. No. 285 a high school building and school bus garage belonging to the school district were extensively damaged when struck by a tornado. The trial court found the school district had suffered a “total loss” and ordered payment of the face amount of the policy which contained coverage identical to that provided by appellant in this case. Although the Court of Appeals reversed the trial court on several grounds, U.S.D. No. 285 is clearly distinguishable from the present case. The school property had not been repaired or replaced, there were certain building code requirements which may have made repair impractical, if not impossible, and the trial court found a total loss. Among other things, the Court of Appeals stated: “Finally, defendants contend the trial court incorrectly applied the terms of the replacement endorsement in the case at bar. Once again, we concur. The primary insuring provisions of the policies before us provide for payment to the insured, in the event of loss, of an amount equal to the ‘actual cash value’ of the loss. Although this term is not defined in the policy and we find no Kansas cases defining the same, we are persuaded that this term means cost of repair or replacement, less applicable depreciation. See Lerer Realty Corp. v. MFB Mutual Insurance Co., 474 F.2d 410 (5th Cir. 1973).” 6 Kan. App. 2d at 252. The Court of Appeals’ reliance upon Lerer Realty Corp. was misplaced. In that case the policy in issue specifically provided that depreciation would be taken into consideration. 474 F.2d at 412, n. 1. We think the better rule, absent policy provisions to the contrary, is that set forth in Sperling v. Liberty Mutual Insurance Company, 281 So. 2d 297 (Fla. 1973). In Sperling the court was called upon to determine the meaning of the “actual amount” of a partial loss under the Florida valued policy statutes. The court stated: “[S]ince the purpose of an insurance contract is to indemnify the owner of property against loss, the measure of value of partial destruction of a building by fire should be the cost of placing the building ‘in as nearly as possible the same condition that it was before the loss, without allowing depreciation for the materials used.’ ” p. 298. The decision in Sperling was based on Glens Falls Ins. Co. v. Gulf Breeze Cottages, 38 So. 2d 828 (Fla. 1949), wherein it was said: “Bearing in mind that the purpose of the contract was to indemnify the owner against loss, we think the chancellor adopted a rule which was fair and just and that the property should have been placed in as nearly as possible the same condition that it was before the loss, without allowing depreciation for the materials used. Certainly it was not intended that the repairs should be made with materials which were not new. If depreciation were allowed, it would cast upon the owner an added expense which we do not believe was contemplated by the parties when they entered into the insurance contract.” p. 830. Under our rules of construction governing insurance contracts, we are of the opinion a reasonable person in the same predicament as appellee would not expect depreciation to be considered to reduce and impair his ability to repair his partially damaged dwelling. The trial court did not commit error in determining that under the terms of appellee’s insurance policy, the loss in the instant case should not be reduced by taking into consideration depreciation. We hold that the term “actual cash value,” when applied to a partial loss under the insurance policy and facts in this case, means the cost to repair without any reduction for depreciation. To the extent that syllabus ¶ 7, and the corresponding portion of the opinion in U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co., 6 Kan. App. 2d at 252, are contrary to the views set forth herein that case is overruled. Next appellant asserts error in the admission of certain testimony elicited from Larry Andrews, an adjuster employed by appellant. Shortly after the damage to appellee’s property, Andrews attempted to settle the loss for $2,012.50 and a check for that amount was tendered to Thomas and refused. Andrews had arrived at a repair estimate of $2,112.50 which was then reduced by the deductible called for in the policy. Prior to trial the court sustained a motion in limine prohibiting Thomas from making any reference to settlement offers or to the sum tendered by American Family. On direct examination, Andrews testified for the company that the cost of repairs was $1,877.50. On cross-examination, however, testimony was elicited from Andrews that he had at an earlier date arrived at a repair estimate of $2,112.50. No reference was made to that amount being related to any tender or settlement offered by the company. The trial court overruled objections to the testimony and, on appeal, it is asserted the testimony was in violation of the order in limine and K.S.A. 60-452. We find no error in the cross-examination of Andrews. In overruling the objection to the question the trial court found that the order in limine merely precluded appellee from producing evidence of the settlement offer and tender. When Andrews testified on direct examination that the cost of repair was $1,877.50, it was not error in testing his credibility to allow testimony on cross-examination that he had previously determined the loss to be $2,112.50. Next appellant asserts error in the failure of the trial court to give a requested instruction. It appears that the damage was on the south side of a gabled roof area which was destroyed by a falling tree. Certain trim and molding that needed to be replaced did not match that on the north slope of the roof. In addition, the replacement of the south slope would result in the north slope being 2 to 3 inches thicker than the new roof and the two would not come together properly at the peak where they met. Under the circumstances, appellee’s expert testified it was also necessary to replace a portion of the north roof at a cost of $415.51. American Family wanted the following to be given in the court’s instructions to the jury: “As used in the insurance policy involved in this case, the language * * repair or replace property with material of like kind and quality * * *’ does not prevent a reasonable substitution of materials while repairing the insured property where materials of identical kind to that used in the original construction are not readily obtainable.” The trial court refused to include that language in its instructions. We find no reversible error in the court’s failure to give the instruction, although there is authority for the appellant’s position. See 44 Am. Jur. 2d, Insurance § 1506, p. 502; 15 Couch on Insurance 2d §54:148, p. 537 (rev. ed. 1983). The language in the requested instruction is not contained in the insurance policy and the instructions when read as a whole adequately advised the jury. The appellant had ample opportunity to argue the reasonableness of replacing the north slope of the roof and no prejudice has been shown in the refusal to give the requested instruction. Appellant’s next point on appeal concerns the allowance of attorney fees to appellee. K.S.A. 40-908 states: “That in all actions now pending, or hereafter commenced in which judgment is rendered against any insurance company on any policy given to insure any property in this state against loss by fire, tornado, lightning or hail, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action including proceeding upon appeal to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.” The judgment in the instant case was in excess of the settlement offer and tender of the appellant and the court did not commit error in the allowance of attorney fees. In appellant’s final two points it asserts the court erred in entering judgment on the verdict in appellee’s favor and in overruling its motion for new trial. As the arguments in support of these contentions are the same as previously discussed, they are found to be without merit. The judgment is affirmed.
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Per Curiam.: Petitioners filed this original action in mandamus seeking an order directing the Honorable Janette Howard, District Judge, to vacate certain orders issued June 8,1983, allowing discovery in an action pending in the District Court of Johnson County. In the underlying action Thomas D. McCarthy, surviving husband and heir at law and executor of the estate of Suzanne C. McCarthy, deceased, brought an action against petitioners and Shawnee Mission Medical Center for damages for the wrongful death of Suzanne C. McCarthy. Mrs. McCarthy allegedly died from toxic shock syndrome caused or contributed to by the use of Rely tampons, a catamenial device manufactured and marketed by petitioners. In September, 1980, after an unusual number of toxic shock syndrome cases had been reported, petitioners withdrew their product, Rely tampons, from the market due to allegations in the media that there was a direct causal relationship between the use of Rely tampons and the occurrence of toxic shock syndrome. Following the withdrawal of the product from the market, petitioners undertook an extensive research program in an attempt to determine, inter alia, the cause of toxic shock syndrome and whether it bore any relationship to the use of Rely tampons. The research was, and is, being conducted by petitioners’ own scientific employees and by outside independent researchers under grants furnished by petitioners. It is the position of the petitioners that all in-house research (that being done by petitioners’ own employees in petitioners’ facilities) and all appraisals and evaluations of the outside independent researchers constitute work product of petitioners’ attorneys prepared for use in pending and future litigation. Originally the trial court issued a protective order. Subsequently, the trial court, on June 8, 1983, reversed its prior order and directed that all research was discoverable under certain protective guidelines established by the trial court. The trial court reconfirmed an earlier protective order which prevented the plaintiff and his attorneys “from distributing documents relating to independent research funded by defendants to third-parties unrelated to the present action or actions in which plaintiffs attorneys are not the trial counsel of record.” The order of the court also provides that in the event the defendants (petitioners herein) question whether any particular research matters are excluded from discovery, then an in camera examination will be conducted by the trial court. The court has carefully considered the record presented in this case, together with the legal memoranda and arguments of the parties, and is of the opinion that the trial court has established adequate safeguards to protect all matters which are not legally subject to discovery. It has been generally recognized that mandamus will not lie unless “some inferior court, tribunal, board, or some corporation or person [fails] to perform a specified duty, which duty results from the office, trust or official station of the party to whom the order is directed, or from operation of law.” K.S.A. 60-801. The conduct of discovery proceedings lies within the sound discretion of the trial court and ordinarily the exercise of such discretion is not the proper subject of mandamus. Cropp v. Woleslagel, 207 Kan. 627, 485 P.2d 1271 (1971). The determination of what may be protected “work product” of an attorney is a matter for the trial court’s determination after in camera inspection of the questioned material. The June 27, 1983, order of this court staying further discovery proceedings in the district court in the case of Thomas D. McCarthy, et al, v. The Procter & Gamble Company, et al, case No. 98060, is hereby dissolved and set aside. The petition for a writ of mandamus is denied.
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Greene, J.: Keith Fowler appeals the district court’s summary denial of his K.S.A. 60-1507 motion, arguing that this court’s prior refusal to docket his direct appeal out of time should not bar his postconviction motion seeking the same relief. We agree with Fowler, reverse the district court, and remand with directions. Factual and Procedural Background On November 15, 2002, Fowler entered a plea to a single count of manufacture of methamphetamine in exchange for dismissal of all other pending charges. On February 10,2003, he was sentenced for a severity level 1 drug felony to 138 months’ imprisonment. At his request, a notice of appeal was timely filed on February 18, 2003, but the appeal was never docketed by his counsel. In numerous contacts thereafter by Fowler and his family, his counsel assured him that the appeal was “pending.” On February 12, 2004, under new representation, Fowler filed a motion to correct illegal sentence seeking relief under State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The court denied Fowler s motion on the grounds that McAdam should not be applied retroactively, and Fowler timely appealed. Ultimately, that appeal was voluntarily dismissed by Fowler contemporaneous with the filing of his 60-1507 motion in 2005. On August 5, 2004, Fowler filed a motion to docket his appeal out of time alleging that trial counsel failed to docket the appeal contrary to his request and that he never consented to withdraw his direct appeal. This court denied his motion on August 19,2004. Fowler then submitted a petition for review by the Kansas Supreme Court arguing that State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and the principles of fundamental fairness should permit him to docket his appeal out of time. On January 19, 2005, the Supreme Court denied his petition for review. On September 22, 2005, the district court conducted a hearing on Fowler’s 60-1507 motion to determine whether Fowler was entitled to relief based on ineffective assistance of counsel. On October 31, 2005, the district court issued a written order finding that although trial counsel failed to docket Fowler’s appeal, the appeal was without merit because he entered his plea prior to McAdam and it was unlikely that his appeal would have taken more than IIV2 months to decide. The district court denied Fowler’s 60-1507 motion because Fowler would have had no basis for a direct appeal and therefore Ortiz did not apply. Fowler timely appeals. Prior to oral argument, this court ordered the parties to brief the issue whether the district court should be summarily affirmed based on res judicata. Does the Doctrine of Res Judicata Bar Relief on Fowler’s 60-1507 Motion? Because Fowler’s prior motion to docket his appeal out of time argued that his counsel had been ineffective in fading to docket his appeal timely, this court must determine whether the denial of that motion serves to bar relief pursuant to Fowler’s 60-1507 motion based on the principles of res judicata. Whether the doctrine applies in a given situation is a question of law requiring a de novo determination by an appellate court. Stanfield v. Osborne Indus tries, Inc., 263 Kan. 388, Syl ¶ 1, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998). “Res judicata (claim preclusion) prevents relitigation of previously litigated claims and consists of the following four elements: (1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits. [Citations omitted.]” Winston v. Kansas Dept. of SRS, 274 Kan. 396, 413, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002). Similarly, the elements of collateral estoppel, or issue preclusion, include (1) a prior judgment on the merits which has determined the rights and liabilities of the parties on the issue; (2) the parties are in privity; and (3) the litigated issue must be necessary to support the prior judgment. State v. Chatagnier, 27 Kan. App. 2d 307, 310-11, 3 P.3d 586, rev. denied 269 Kan. 935 (2000). The last of the elements of these doctrines has been somewhat unified and embellished as follows: “[T]he doctrine of res judicata is held not to apply to issues raised in the previous case which were not decided by the court or jury. Hence, the doctrine of res judicata does not preclude relitigation of an issue raised by the pleadings in the prior action, but not considered either by stipulation of tire parties or otherwise.” Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 691, 751 P.2d 122 (1988). Here, the parties either concede or have convinced us that most of the elements of either doctrine are present. Comparing the motion to docket an appeal out of time and the 60-1507 motion, the parties are the same, the same claims were made, and there was finality after our Supreme Court denied a petition to review this court’s denial of the motion to docket an appeal out of time. For purposes of barring the rehtigation of the ineffective assistance of counsel claim, however, Fowler argues that he never had an opportunity to litigate this claim on its merits and that determination of this issue was not necessary to support the prior judgment. We agree. The appellant’s obligation to timely docket an appeal arises from an appellate rule of this court rather than a statutory mandate. Although the timely filing of a notice of appeal is jurisdictional (see K.S.A. 60-2103[a]; Brown v. Brown, 218 Kan. 34, 38, 542 P.2d 328 [1975]), most of the subsequent steps in prosecuting an appeal are generally provided by appellate rule and are enforceable as this court deems appropriate in its discretion. “Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this chapter, or when no remedy is specified, for such action as the appellate court having jurisdiction over the appeal deems appropriate, which may include dismissal of the appeal.” K.S.A. 60-2103(a). When the motions panel of this court acts on a motion to docket an appeal out of time, the court is empowered to impose the sanction of dismissal in its discretion as a matter of rule enforcement; in other words, if the 21-day docketing requirements of Supreme Court Rule 2.04 (2006 Kan. Ct. R. Annot. 11) are not met, this court may dismiss the appeal as untimely docketed without regard to any substantive arguments that may be presented by the movant. In fact, any number of bases may serve to support a discretionaiy denial of a motion to docket an appeal out of time including the degree of untimeliness, the contemporaneous failure to observe other docketing requirements, failure to follow Supreme Court Rule 5.051 (2006 Kan. Ct. R. Annot. 34) after dismissal by the district court, a summary belief that the appeal lacks merit, or a general concern for judicial economy. Accordingly, a motion to docket an appeal out of time is not necessarily denied based upon the arguments contained in the motion itself but, rather, may be denied pursuant to this court’s independent responsibility to enforce the appellate rules. Accordingly, a determination of the issues raised by a motion to docket an appeal out of time is not necessary to support tire denial by this court of a motion to docket an appeal out of time and, therefore, does not serve to bar the relitigation of the issues raised in a subsequent 60-1507 motion, despite tire finality of the prior proceeding. In a manner wholly consistent with our analysis, our Supreme Court has acknowledged that a dismissal of an appeal by a district court pursuant to Supreme Court Rule 5.051 and a subsequent denial of a motion to docket an appeal out of time by our court does not necessarily bar an appeal under 60-1507 for ineffective assistance of counsel if the facts warrant. See City of Kansas City v. Lopp, 269 Kan. 159, 161, 4 P.3d 592 (2000). We hold that on the facts of the case, whether analyzed under res judicata or collateral estoppel, this court’s denial of Fowler’s motion to docket an appeal out of time does not bar his subsequent 60-1507 motion requesting the same relief. Did the District Court Err in Concluding an Ortiz Exception Cannot Operate to Save a Defendant’s Failure to Perfect Appeal on Basis that Appeal Could Raise No Meritorious Issues? The district court denied Fowler’s 60-1507 motion after an evidentiary hearing on the basis that “at the time the appeal was filed there was no meritorious basis to file [his] appeal.” We must determine whether the factual findings of the district were supported by substantial competent evidence and whether those findings were sufficient to support its conclusions of law. Lewis v. State, 33 Kan. App. 2d 634, 111 P.3d 636, rev. denied 277 Kan. 924 (2003). Where the Ortiz exception is the subject before the district court, the ultimate legal determination whether the facts fit an exception is reviewed de novo. State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005). At the outset, we respectfully disagree with the district court in its conclusion that Ortiz does not operate to save an appeal that the district court believes has no merit. This conclusion places the cart before the horse in supposing that a district court need not honor an Ortiz exception if the district court believes “there was no meritorious basis to file [the] appeal.” A district court may not avoid making an Ortiz determination based upon that court’s predilection of both the potential bases and outcome of any conceivable appeal. Ortiz establishes an exception to the jurisdictional aspect of filing a timely notice of appeal. Our appellate courts have consistently stated that where the narrow exceptional circumstances outlined by Ortiz are met, the appeal must be permitted to proceed out of time. See, e.g., Phinney, 280 Kan. 394, Syl. ¶ 3. With regard to the district court’s findings that “it [was] pure speculation to find that [Fowler’s] appeal would have taken more than 11.5 months to decide” and “would have had the benefit of the McAdam decision,” we also disagree. Noting that Fowler’s appeal could have been timely docketed on March 1, 2003, and that this was slightly more than 14 months after McAdam was docketed, we agree with Fowler that “it is highly unlikely that Mr. Fowler’s appeal would have been decided prior to McAdam.” Moreover, we note that Fowler’s appeal would have been docketed only 11 months when the Supreme Court released its McAdam opinion. Although there can be no certainty in such matters, we note that our Supreme Court concluded in Phinney that an appeal that could have been timely filed more than 1 year prior to the decision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), should have the benefit of Fraziers ruling. Phinney, 280 Kan. at 406-07. We conclude that the district court erred in its findings and conclusions in denying Fowler’s 60-1507 motion, thus requiring that we reverse. What is the Proper Disposition of an Appeal Where the District Court Erroneously Denied a K.S.A. 60-1507 Motion Seeking McAdam Relief Based on an Ortiz Exception? Fowler requests this court to “set aside the district court’s decision and either allow him to be resentenced or docket his appeal out-of-time.” Where the record is factually and legally sufficient to support an Ortiz determination, there is no need for a remand to address this issue and an appellate court is empowered to make the determination. Phinney, 280 Kan. at 403. Here, the undisputed evidence demonstrates that Fowler directed that a notice of appeal be filed, and thereafter counsel was contacted on numerous occasions regarding the status of the appeal. Contrary to the true status of Fowler’s appeal, counsel consistently informed Fowler and his family that the appeal was “pending.” We note that counsel did not testify at the evidentiary hearing (which would have been preferable), but we decline to second-guess the strategy or obstacles that may explain this omission. Where a criminal defendant is furnished an attorney who failed to perfect and complete an appeal, or should have been furnished an attorney to do so, one of the narrow exceptions outlined by Ortiz has been established and the defendant must be permitted to pursue an appeal out of time. Ortiz, 230 Kan. at 735-36. Having determined that Fowlers appeal is properly before this court, having determined that the appeal would likely have been pending at the time McAdam was decided, and having determined from our examination of Fowler’s 60-1507 motion that the exclusive relief sought therein was resentencing under McAdam, we conclude that Fowler is entitled to McAdam relief. See Phinney, 280 Kan. at 406-07. We must remand for Fowler to be resentenced for a severity level 3 drug felony. Reversed and remanded with directions.
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Green, J.: This is a summary judgment case involving an allegedly fraudulent sale of a house. Christian and Janet Kunzle purchased a house from Derek'and Catherine Brennan for approximately $1,000,000. The central issue in this case involves a failure by the Brennans to disclose a-professional inspection report to the Kunzles. This report revealed potential latent defects in the house. The Kunzles argue that the failure to disclose this report constituted fraud by silence. Nevertheless, the Brennans contend that the Kunzles would have discovered the hidden defects if they had inspected for water leaks before the sale. Although acknowledging that the Kunzles had conducted a number of inspections of the house, the trial court implicitly determined that had the Kunzles hired professional inspectors specifically for water leak issues, they would have learned of the defects. Consequently, the trial court granted summary judgment for the Brennans. The Kunzles, however, had presented expert evidence that the defects were not discoverable through a reasonable inspection. As a result, the Kunzles maintain that the trial court inappropriately granted summary judgment because a genuine issue of material fact remained at issue. We agree, holding that the reasonableness of the Kunzles’ inspections was a question of fact. Accordingly, we reverse and remand for trial on the Kunzles’ fraud by silence counterclaim. The Kunzles also appeal from the trial court’s grant of summary judgment on their counterclaims of fraudulent and negligent misrepresentations, negligence, and breach of implied warranties in favor of the Brennans. We find no error in the grant of summary judgment on those counterclaims. Based on language in the buyers’ acknowledgment of the sellers’ disclosure statement, the Kunzles’ failure to specifically indicate the representations on which they were relying barred them from maintaining a cause of action for affirmative or negligent misrepresentations. Moreover, the Kunzles have abandoned their arguments on their counterclaims of negligence and breach of implied warranties. We therefore affirm the trial court’s summary judgment for the Brennans on the following counterclaims: affirmative and negligent misrepresentations, negligence, and breach of implied warranties. Further, the Kunzles appeal from the trial court’s judgment foreclosing their mortgage held by the Brennans. The Kunzles maintain that their mortgage should not have been foreclosed until their counterclaims of fraud and misrepresentation had been resolved. Because the Kunzles provide no relevant authority for their argument, they have essentially abandoned this issue. Moreover, we find no error and affirm the trial court’s entry of judgment on the Brennans’ mortgage foreclosure action because the Kunzles’ coun terclaims did not provide a defense to and would not have affected the mortgage foreclosure. Finally, the Brennans cross-appeal the trial court’s award of attorney fees and the calculation of interest under the promissory note. The Brennans argue that the trial court erred in ruling that the parties did not agree to reimbursement for attorney fees incurred in defending the Kunzles’ counterclaims. Nevertheless, we determine that the promissory note and mortgage allow the Brennans to recover attorney fees incurred in enforcing the promissory note and in foreclosing the mortgage but does not allow for attorney fees in defending the counterclaims asserted by the Kunzles. In addition, the Brennans contend that the trial court erred in determining that the interest rate on default should fluctuate monthly based on the statutory rate published by the Secretary of State under K.S.A. 2006 Supp. 16-207. We agree. We interpret the promissory note as requiring the interest rate on maturity to be the statutory rate published by the Secretary of State on that maturity date and that such rate shall continue until the unpaid principal balance is paid in full. Therefore, we reverse the award of interest and remand the case for the trial court to recalculate interest at the fixed rate of 7.93%. Accordingly, we affirm in part, reverse in part, and remand for trial; and reverse in part and remand with directions. Facts The Kunzles entered into a real estate sales contract to purchase a house from the Brennans for approximately $1,000,000. The Kunzles partially financed the house by taking out a mortgage for $435,000 with the Brennans and signing a promissoiy note. The real estate contract contained a provision allowing the Kunzles to conduct property inspections. Moreover, the contract stated that if the buyers failed to conduct inspections, the buyers “shall have waived any right to cancel or renegotiate this Contract pursuant to the inspection provisions.” As part of the contract, the Kunzles also signed a sellers’ disclosure statement that had been filled out by the Brennans. In the “ROOF” categoiy of the disclosure statement, the Brennans checked the box “Yes” as to whether any insurance claims had been made in the past 5 years; they also checked “Yes” as to whether repairs were made from the claims. The contract required the Brennans to list the name of the company that did the repairs. The Brennans wrote “Reeds’ Restoration” in the space provided. The contract also required the Brennans to explain in detail any answers that were marked “Yes.” The Brennans wrote in the space furnished: “3 windows leaked — solution caulking. Chimney flashing repaired to ehminate 4th window leak.” Christian Kunzle testified that before signing the disclosure statement, he asked Derek Brennan about the written disclosures. Regarding the insurance claim, Christian testified that Derek told him there had been some wind damage and that some ridges had broken off of the roof but that he had it repaired. When Christian asked about the four window leaks, Derek explained the caulking and grouting process that had been done to repair the leaks. Christian testified that after going over the disclosure statement with Derek, he asked Derek if there was anything else to add in terms of repairs, modifications, or other issues that would affect a buyer of his home, but Derek replied, “ ’No.’ ” Before closing on the house, the Kunzles hired Lariy L. Vaught Roofing to inspect the roof of the house. In his roof inspection report, Vaught noted that he had examined two leaks in the house, one above the kitchen and one in the master bedroom. Vaught stated that both of the leaks were likely attributable to roof flashing detail and submitted a proposal of recommended roof repairs. Vaught’s opinion was that the roof was predominantly installed per accepted standards and would continue to provide several years of service. The Kunzles also hired Bruce Bird, a structural engineer, to perform a structural inspection of the house. During his inspection, Bird found no evidence of a structural problem but did advise that the patio be regraded so that water would drain away from the house. In addition, the Kunzles had inspections performed on the heating and cooling system, the chimney, and the septic system. The property was also inspected for termites and tested for radon. Moreover, Christian Kunzle made several personal inspections of the house, taking notes of the things that he wanted fixed. The Kunzles also had their friend, Jim Lambie, a developer of single family residences, walk through the house to look for potential problems. While walking through the house with Lambie, Christian discovered water and mold on the carpet in a study and water on the floor of the media wiring closet in the basement. In his deposition, Derek Brennan indicated .that he discovered these leaks when he returned to the house in June 2001. In a document titled “Statement of Condition — Update 8/2/01,” the Brennans disclosed the leak in the study and the leak in the wiring closet and another leak that they had discovered at the top of a laundry room window. The Brennans set forth the corrective actions that they had taken to repair the leaks, which included professional caulking, mending of the carpet, and installation of step flashing. On July 11, 2001, the Kunzles delivered an “Inspection Notice” to the Brennans and initialed the option of “Offer to Renegotiate,” indicating that they had found unacceptable conditions from the written opinions of professionals who had inspected the property. They attached an “Addendum A” setting forth a list of the unacceptable conditions. During a meeting discussing a list of the proposed repairs to the residence, Christian specifically asked Derek if there was anything else they needed to know about the house. According to Christian, Derek stated that the disclosure statement was complete and that he did not want to add anything else. On July 25, 2001, the parties signed an amendment to the contract. Attached to the amendment was “Addendum A,” a list of 41 unacceptable conditions. Under the amendment, the Brennans agreed to pay the Kunzles $1,475 for 7 of the items listed in Addendum A. The Brennans agreed to correct the remaining items in Addendum A. The Kunzles closed on the house on August 3, 2001. The Kunzles took out a $435,000 mortgage with the Brennans and signed a promissory note. Several days after the Kunzles moved into the house, they discovered water infiltration in an interior wall in the house. The problem was discovered when a painter attempted to sand out some blisters on the baseboards and discovered that the baseboard’s veneer was mushy and wet. After this discovery, the Kunzles undertook a process of destructive testing to identify areas where water was infiltrating through the exterior of the house. In addition, the Kunzles had tests performed to determine where water was infiltrating through the walls. During tírese tests, the Kunzles found evidence of water infiltration around many of the windows and also discovered damage to the home’s sheathing. In addition, the Kunzles discovered that many of the control joints of the masonry stucco were sources of water infiltration. Moreover, the area where the deck joined the house was a source of significant water infiltration and damages. The Kunzles spent more than $500,000 to remediate the water infiltration problems. In September 2001, the Brennans, for the first time, disclosed to the Kunzles a report that had been completed in 1999 by Laurence Fehner, a professional engineer with Norton & Schmidt Engineers LLP. Fehner’s report detailed an inspection he had performed in October 1999, concerning four water leak areas in the house. In describing his examination of the first water leak area, Fehner noted that the leak problems were significant enough that a hole was cut in the ceiling to observe the underside of the roofing. Based on his observations, Fehner indicated that tire metal roofing products were not the cause of the leak problem. In examining the exterior of the home, Fehner observed no signs of vapor barrier or felt paper behind the stucco finishes at the bottom edge: “A review outside the home of tire area in question revealed several areas where there are significant leak potentials. The exterior cladding is a synthetic stucco system. ... I observed no signs of vapor barrier or felt paper behind the stucco finishes at the bottom edge.” Fehner then noted several problems with the wall system in and around the leakage areas above the sitting room, including inadequate flashings and joint conditions: “A review of the wall system in and around the leakage areas above the sitting room revealed that there are no ldckout flashings where gutters abut the wall. . . . This is contrary to most typical details provided by EMMA and synthetic stucco suppliers who typically require ldckout flashings at these points. . . . The joints between the synthetic stucco finishes and the windows are not jointed or sealed. The synthetic stucco finishes were simply butted to the window frame. Water which penetrates at these various points simply proceeds downward through the wall cavity where it intersects various floor and header framing and then leaks in. Further, the flashings above the half round window terminate and are not kicked out. This condition results in water sheeting down the face of the wall being able to penetrate down through the joints along the sides of the window.” After making several observations about the conditions in the room above the sitting room, Fehner indicated that the leak problems were not related to the main roof of the house. Fehner tiren stated that additional destructive testing would have to be completed in order to pinpoint the exact location of the leak: “Additional testing can be performed, however, [that] may result in additional damages to the home or involve some destructive testing. To exactly pinpoint the leak location will require holes being made in the exterior siding of tire home so that moisture probes can be inserted. Additionally, interior finishes will need to be cut open to expose various other areas. Water testing of both various wall details and the windows can also be performed. There are no open or obvious signs that the window system itself is leaking, however, the water test can verify if it is contributing to the leak problems.” In discussing a second leak in the first floor sitting room, Fehner stated: ‘Water stains were observed on the sheetrock finishes below the sill at each comer of the window. Again, a review was made outside and I found that the synthetic stucco finishes were simply butted to the jambs of the window. . . . Mr. Brennan explained that the leak problems only occurred when there were significant winds and they did not generally develop when the rain was straight down. This condition, again, indicates that the leak problems are related to problems with the walls and not the main roof of the house.” Fehner opined that this second leak area occurred from water “leaking in along the butted joints of the wall finishes to the jambs of the window systems both on the first and second floor.” Fehner concluded his report with his opinion that the leak problems experienced in the house were “related to various flash, joints and trim detail.” Fehner stated that the leak problems could be corrected “by properly correcting all of the various flashing, joint and trim conditions noted.” Nevertheless, Fehner stated that no attempt had been made to review components that were not readily viewable; that no destructive testing or moisture testing had been performed; and that nondestructive moisture testing could not be performed due to the mesh used in the synthetic stucco finishes. The Brennans received the Norton & Schmidt report in late 1999. Fehner had been sent to the house after the Brennans had discovered water leaks around some windows in the house and had called Rick Revelle with Revelle Homes, Inc. Revelle came out to the house to examine the leaks and eventually contacted his subcontractors to inspect the roof and the windows. Fehner was sent to the house by Revelle’s insurance company. Based upon the Norton & Schmidt report, Revelle prepared a remediation plan and cost estimate, which were submitted to Revelle’s insurance company. In May 2000, the Brennans accepted $12,594 in full settlement of its claims against Revelle and its insurance company. Of this amount, only $4,560.32 was spent on the suggested repairs. The repairs were completed in November 2000. The Kunzles did not learn about the Revelle remediation plan until it was disclosed during the discovery process of diis case. In March 2002, the Brennans sued the Kunzles after the Kunzles defaulted on their mortgage and promissory note. In an amended petition filed in October 2002, the Brennans sought payment of the note and foreclosure as a first and prior lien on the property. The Kunzles answered the petition and counterclaimed against the Brennans. In their answer, the Kunzles maintained that the Brennans’ claims were barred by fraud, misrepresentation, and negligence of the Brennans. The Kunzles contended that they had the right to rescind the contract to purchase the residence. In their amended counterclaims, the Kunzles sought damages based on the theories of fraud and negligent misrepresentations by the Brennans (count I); negligence by the Brennans in the design and construction of the residence and in the repairs made to the residence (count II); and breach of implied warranties by the Brennans (count III). In regard to their fraud and negligent misrepresentation counterclaim, the Kunzles asserted that the Brennans had intentionally failed to disclose material facts relating to the condition of the residence. The Kunzles set forth a list of several things that the Brennans had failed to disclose, including the Norton & Schmidt report from October 1999. In April 2004, the Brennans moved for summary judgment on the Kunzles’ amended counterclaims. On the Kunzles’ counterclaim relating to fraud and negligent misrepresentations, the Brennans argued that the Kunzles could not reasonably rely upon the truth or falsity of their representations because the contract gave the Kunzles the right to inspect and specifically stated that the Brennans’ representations were not warranties. In responding to the Brennans’ motion for summary judgment, the Kunzles provided an affidavit from Vernon Reed, an architect who had been hired by the Kunzles to investigate the water infiltration problems after they moved into the house. Reed’s opinion was that “the causes of the leaks in the Kunzle residence were the result of improper and defective construction techniques.” Reed testified as follows: “The nature and existence of the leales in this house, and the extent of those leaks, would normally not be discoverable in the absence of some specific direction being given to the investigator to a particular problem, and then, absent destructive testing, the full extent of the problem would not be discoverable under normal circumstances.” In addition, Reed testified that the Brennans had not provided enough information to the Kunzles to justify retaining a professional inspector, such as a civil engineer or an architect, to conduct further investigation of the water leak problems before closing: “I do not believe that enough information was given to the Kunzles by their sellers to justify the retention of a civil engineer, such as Larry Fehner, or an architect to undertake inspection of this house prior to closing. It would be unusual and unnecessary, in most circumstances, to have a civil engineer or architect inspect a residence prior to closing.” Moreover, noting that the information provided in the Norton & Schmidt report would have warranted further investigation, Reed stated: “I read the Norton & Schmidt report at sometime prior to June 8, 2002 and after the Kunzles purchased the residence. Had the Kunzles been furnished a copy of that report prior to closing, that most certainly would have suggested further inspection-investigation by the Kunzles of the exterior covering of the house.” Despite Reed’s affidavit, the trial court granted summary judgment to the Brennans on all of the Kunzles’ counterclaims. On the Kunzles’ counterclaim of fraud and negligent misrepresentations, the trial court noted that the Kunzles had agreed that they would verify conditions in the house through their own inspections. Pointing out that the Kunzles had failed to hire a water leak inspector, the trial court stated: “The Kunzles, knowing of some prior water leak problems in the house, failed to hire professional inspectors to look at the water related items. The Kunzles did hire professional inspectors, but only for roof and structural issues. Kunzles agreed to accept the house ‘as is’ following their opportunity to inspect and after their list of repair items in ‘Addendum A’ to the Amendment in the sale contract were resolved to their satisfaction. The Kunzles had agreed drat the Brennans’ disclosures were not a warranty and diat the Kunzles would rely on the inspections they had been advised to obtain.” The trial court found, as a matter of law, that the Kunzles could not have reasonably relied on the Brennans’ representations and, therefore, could not maintain an action for fraudulent or negligent misrepresentation against the Brennans. The Kunzles moved for a reconsideration of the trial court’s rulings on its counterclaims. Nevertheless, the trial court affirmed its previous rulings. On the Brennans’ foreclosure action, the trial court ruled that the mortgage should be foreclosed as the Kunzles had admitted to signing the mortgage and note but had stopped making payments. Moreover, the trial court granted judgment against the Kunzles for $433,924.24, plus interest of $73,145.40 through August 2004. Trial Court Judgment Should summary judgment have been granted to the Brennans on the Kunzles’ counterclaims? On appeal, the Kunzles argue that the trial court erred in granting summaiy judgment to the Brennans on the counterclaims. An appellate court’s standard of review in summaiy judgment cases is set forth in Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000): “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issues to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact .... to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Moreover, a review of the trial court’s grant of summary judgment in this case requires interpretation of the real estate sales contract and other documents pertaining to the sale of the residence. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). “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. [Citation omitted.]” Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). Here, the trial court granted summary judgment on the Kunzles’ three counterclaims: fraud and negligent misrepresentation; negligence in the design and construction of the house and in the repairs done on the house; and breach of implied warranties. Although not clearly delineated in the Kunzles’ answer and amended counterclaims, it is apparent that count I relating to fraud and negligent misrepresentations includes two causes of action: fraud by silence and negligent misrepresentations. Each of the above theories will be discussed separately. Fraud by Silence In reviewing whether the trial court erred in. granting summary judgment on the Kunzles’ fraud claim, this court reviews the facts in the light most favorable to the Kunzles. See Patterson v. Brou hard, 246 Kan. 700, 702, 792 P.2d 983 (1990). Moreover, the existence of fraud is normally a question of fact. Therefore, on appeal, this court’s standard of review is limited to determining whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Alires v. McGehee, 277 Kan. 398, 403, 85 P.3d 1191 (2004). Furthermore, “[a] court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.” Ruebke v. Globe Communications Corp., 241 Kan. 595, 605, 738 P.2d 1246 (1987). Even though fraud must be proved by clear and convincing evidence, a party resisting a motion for summary judgment in an action for fraud need not present clear and convincing evidence of fraud to oppose the motion. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 207, 606 P.2d 1009 (1980). Actionable fraud may be based upon an affirmative misrepresentation made as to existing and material facts or upon a suppression of facts which the party is under a legal or equitable obligation to communicate. See Broberg v. Boling, 183 Kan. 627, 634-35, 331 P.2d 570 (1958) (affirmative misrepresentation); Wolf v. Brungardt, 215 Kan. 272, Syl. ¶ 4, 524 P.2d 726 (1974) (fraud by silence). In setting forth count I of their counterclaims, the Kunzles alleged that the Brennans had failed to disclose several material facts, including the Norton & Schmidt report, before they closed on the house and took possession in August 2001. The Kunzles’ fraud claim is based on the Brennans’ alleged fraudulent nondisclosure, or fraud by silence, of certain material facts relating to the condition of the house. To establish fraud by silence against a seller, a buyer must show by clear and convincing evidence the following elements: (1) the seller had knowledge of material facts which the buyer did not have and which the buyer could not have discovered by the exercise of reasonable diligence; (2) the seller was under an obligation to communicate the material facts to the buyer; (3) the seller intentionally failed to communicate the material facts to the buyer; (4) the buyer justifiably relied on the seller to communicate the material facts; and (5) the buyer sustained damages as a result of the seller’s failure to communicate the material facts to the buyer. McLellan v. Raines, 36 Kan. App. 2d 1, Syl. ¶ 5, 140 P.3d 1247 (2006). Although the Kunzles’ allegations in count I of their counterclaim follow the elements of fraud by silence, it appears that the trial court never addressed this theory. In responding to the Brennans’ motion for summary judgment, the Kunzles set forth the elements of fraud by silence and argued that the Brennans had intentionally withheld material information from them. Nevertheless, the trial court granted summary judgment to the Brennans on count I of the Kunzles’ counterclaims by determining that the Kunzles could not maintain a cause of action sounding in fraudulent or negligent misrepresentation. The elements of fraud by silence, which are set forth above, are different from the elements of both fraudulent misrepresentation and negligent misrepresentation. See Broberg, 183 Kan. at 634 (elements of fraud based on affirmative misrepresentation); Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 604-05, 876 P.2d 609 (1994) (establishing cause of action for negligent misrepresentation). Sellers Duty to Disclose Fraudulent nondisclosure, or fraud by silence, depends in large part on the buyer’s inability to discover a defect with a reasonable inspection. A seller can incur a responsibility to disclose material facts when the seller has knowledge of a defect in the property which is not within the fair and reasonable reach of the buyer and which the buyer could not discover through the exercise of reasonable diligence. Green v. Geer, 239 Kan. 305, 308, 720 P.2d 656 (1986); Boegel v. Colorado Nat'l Bank of Denver, 18 Kan. App. 2d 546, 550, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993). In responding to the Kunzles’ arguments, the Brennans maintain that the trial court’s ruling, which never addressed the theory of fraud by silence, is correct. Nevertheless, the Brennans’ main defense was (1) that they did not fad to disclose “material facts” relating to the house and (2) that even if they had failed to disclose some information before the Kunzles accepted the house, the in formation was reasonably discoverable by the Kunzles upon inspection. Brennans’ Knowledge of Material Facts The Kunzles point to several things that the Brennans failed to disclose before the closing on the house. The central focus of the Kunzles’ argument, however, seems to be the Norton & Schmidt report that the Brennans had received in 1999 but failed to disclose to the Kunzles before they closed on tire house. The Kunzles maintain that had they been provided a copy of the Norton & Schmidt report, they would have undertaken an inspection for exterior stucco problems or would have opted out of the contract. On the other hand, the Brennans maintain that the Norton & Schmidt report was “simply peripheral information about the histoiy of the house.” The Brennans contend that when the house was sold, they believed that all repairs listed in the Norton & Schmidt report had been completed. The Brennans maintain that they revealed all they knew concerning the material conditions of the property. Nevertheless, the Norton & Schmidt report was material because it would have alerted the Kunzles that the real source of the water leales could not be pinpointed without conducting additional destructive testing. In his report, Fehner stated: “To exactly pinpoint the leak location will require holes being made in the exterior siding of the home so that moisture probes can be inserted. Additionally, interior finishes will need to be cut open to expose various other areas. Water testing of both various wall details and die windows can also be performed.” Moreover, the Norton & Schmidt report would have alerted the Kunzles to some concerns with the construction of the house. Fehner detailed several areas where there was improper flashing and questionable joint conditions. In addition, after reviewing the exterior of the home, Fehner noted that there were “several areas where there are significant leak potentials.” Fehner stated that the exterior cladding was a synthetic stucco system and that he “observed no signs of vapor barrier or felt paper behind the stucco finishes at the bottom edge.” The Brennans had received this Norton & Schmidt report in 1999 and thus had knowledge that the actual source of the visible water leaks could not be determined without conducting additional destructive testing. Moreover, the Brennans possessed this knowledge while tire Kunzles were inspecting the home. In addition, the Brennans possessed this knowledge when they later disclosed several visible water leaks after the Kunzles had signed the original purchase contract and represented that the water leaks had been repaired. Although they possessed the Norton & Schmidt report that indicated the actual source of the water leaks could not be pinpointed without conducting additional destructive testing, the Brennans represented that all “corrective actions” had been completed. Although the Brennans dispute the materiality of the Norton & Schmidt report, they maintain that they disclosed the contents of the report in their disclosure statement. The Brennans maintain that “all the information that was contained in the [Norton & Schmidt] report was included in the disclosure statement and Mr. Brennan checked ‘Yes’ in the appropriate boxes on the disclosure statement.” Consequently, the Brennans argue that no “material facts” went undisclosed. Nevertheless, the Brennans specifically stated in their disclosure statement that several windows had leaked and that those leaks had been repaired with caulking and flashing. Those disclosures, however, would not have suggested to a prospective buyer or an inspector what was causing the water leaks. Further, the Brennans made their disclosures of the water leaks under the “Roof’ portion of the disclosure statement. Both the Norton & Schmidt report and the Kunzles’ inspection report, however, determined that the roof was not the main cause for the water leales. Particularly, the Brennans’ disclosure statement was absent of any reference to the synthetic stucco system and to the possible absence of a vapor barrier or felt barrier behind the stucco finishes. As a result, the Brennans’ disclosure statement would not have alerted a prospective buyer or an inspector that absent destructive testing, the cause of the water leaks could not be pinpointed. In pointing out the significance of the Norton & Schmidt report, the Kunzles presented the testimony of Reed. He testified that the Norton & Schmidt report “most certainly would have suggested further inspection-investigation by the Kunzles of the exterior covering of the house.” “A matter is material if it is one to which a reasonable man would attach importance in determining his choice of action in the transaction in question. [Citation omitted.]” Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P.2d 198 (1973). In determining whether to purchase a home, a reasonable person would attach importance to a professional report that alerted them to further investigation of a house in order to discover the source of water leaks. See Lynn v. Taylor, 7 Kan. App. 2d 369, 371-72, 642 P.2d 131, rev. denied 231 Kan. 801 (1982) (Failure to reveal the existence of an unfavorable termite inspection was fraud.). As has been noted, the Kunzles, through their inspections, were attempting to gather information about the home’s soundness. The Kunzles planned to use this information to determine whether to complete the purchase of the home. To know that the actual source of the water leaks could not be determined without conducting additional destructive testing would have been very important to a prospective buyer. All inferences from the evidence must be given to the nonmoving party. “Factual inferences tending to show triable issues must be considered in the light most favorable to those issues.” Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995). Discovery of Information Through Reasonable Diligence The Brennans maintain, however, that the Kunzles would have discovered the hidden defects if they had inspected for water leaks before the sale as they had done after the sale. The Brennans contend that the Kunzles were aware of numerous water leaks within the home but failed to inspect for the cause of the water leaks until after the sale. On the other hand, the Kunzles argue that the defects were latent and that they could not have discovered the source of tire water leaks based on the information provided to them by the Brennans. In granting summary judgment to the Brennans, the trial court pointed to the fact that the Kunzles failed to hire a professional inspector for the water leaks. The trial court stated that the Kunzles had agreed that if they failed to inspect or if they inspected but failed to notify the Brennans of unacceptable conditions, they would waive their rights to cancel or renegotiate any part of the contract. The trial court stated that “[t]he Kunzles, knowing of some prior water leak problems in the house, failed to hire professional inspectors to look at the water related items.” The trial court’s holding, however, goes to the reasonableness of the Kunzles’ inspections, which is a fact question. Under the contract, the Kunzles waived any right to cancel or renegotiate the contract under the inspection provisions only if they failed to conduct inspections. As the Kunzles point out, they did have inspections done to the house, including inspections for roof and structural issues. The roof inspector examined leaks discovered in the house and gave his opinion that they were likely attributable to roof flashing detail. In addition to numerous other inspections, the Kunzles had a structural engineer perform a structural inspection of the house. Because the Kunzles had inspections, they did not waive their rights under the contract. Moreover, in support of their counterclaims, the Kunzles presented expert testimony that they had not been provided with enough information to warrant further inspection of the water leak issue. Reed testified about the lack of information: “I do not believe that enough information was given to the Kunzles by their sellers to justify the retention of a civil engineer, such as Larry Fehner, or an architect to undertake inspection of this house prior to closing.” Reed further stated that “[i]t would be unusual and unnecessary, in most circumstances, to have a civil engineer or architect inspect a residence prior to closing.” At the very least, Reed’s affidavit created a genuine issue of material fact as to tire reasonableness of the Kunzles’ inspections based on the information they had been provided by the Brennans. The Brennans maintain that Alires, 277 Kan. 398, coupled with this court’s recent decision in Phillips v. Tyler, 35 Kan. App. 2d 256, 129 P.3d 656, rev. denied 281 Kan. 1378 (2006), controls the outcome of this case. Alires has limited application in this case as it involved a fraudulent misrepresentation claim. Moreover, Alires is factually distinguishable because the buyers in that case did not have inspections done and they acknowledged that an inspection would have revealed the defect about which they were complaining. Our Supreme Court in Alires held: “Under the facts of this case, the buyer of real estate could not reasonably rely upon representations of the seller when the truth or falsity of the representation would have been revealed by an inspection of the subject property and the misrepresentations were made prior to or as part of the contract in which the buyer contracted for the right to inspect, agreed that the statements of the seller were not warranties and should not replace the right of inspection, declined inspection, and waived any claims arising from defects which would have been revealed by an inspection.” 277 Kan. at 411-12. In reaching this holding, our Supreme Court stated that in order to prove their case, it was incumbent upon the buyers to establish that even if an inspection had been performed, the water leakage problems in the basement would not have been apparent. 277 Kan. at 410. The buyers, however, provided no such evidence. Here, the Kunzles did have inspections performed, but they did not discover the defects that were causing the leaks. Moreover, the Kunzles presented evidence through Reed’s affidavit indicating that the defects would not have been discovered during a normal inspection. Therefore, Alires is factually distinguishable. Phillips also has limited application to the instant case as it involved a negligent misrepresentation claim. Moreover, in that case, evidence of the water infiltration problems in the house was discovered during the buyers’ inspections. Specifically, the inspection report revealed evidence of past roof leakage and also informed the buyers that the synthetic stucco system installed on the house was a “water-barrier” system no longer recommended by most major manufacturers. The inspection report further informed the buyers that a wet-wall detector had “ ‘indicated possible moisture below all roof-to-wall joints and around or below most windows.’ ” 35 Kan. App. 2d at 264. The report noted that there was a potential for hidden dry rot and recommended that additional evaluation and repairs be made by a licensed qualified contractor. Thus, the buyers were put on notice that there were many potential problems with the house. This court held that the buyers’ failure to conduct a more detailed test of the roof, along with their decision to allow the sellers to contract for limited liability, prevented a claim for negligent misrepresentation. 35 Kan. App. 2d at 264-65. The knowledge obtained by the buyers in Phillips concerning a potential defect was similar to that obtained by the buyer in McLellan, 36 Kan. App. 2d 1, which was cited by the Brennans in a letter of additional authority under Supreme Court Rule 6.09(b) (2006 Kan. Ct. R. Annot. 44). In McLellan, shortly after the buyer purchased and moved into her house, water began leaking into the basement. The buyer brought a fraud by silence claim against die sellers, the real estate agents, and the real estate agency. The trial court granted summary judgment on the fraud by silence claim, and this court affirmed. 36 Kan. App. 2d at 9-16. In that case, however, the buyer had received information warning her of a potential defect with the hoúse prior to closing. In the disclosure statement, the sellers had marked “Yes” in the paragraphs dealing witii settling, shifting, and cracking of the foundation and basement walls. In addition, the buyer’s inspections revealed a crack in the home’s foundation. The inspection report recommended firing the crack to prevent the chance of leaks. The buyer, however, chose not to have the inspector’s recommended repairs performed. Instead, she bargained witii the sellers to lower the purchase price. Here, however, the Kunzles never had the information that the buyers in Phillips or McLellan had before closing on the house. Although the Kunzles conducted numerous inspections on the house, nothing was revealed during the inspections that would have suggested a major defect in the house. One of the propositions of law relied upon by the Kunzles is: “Where one party to a contract or transaction has superior knowledge or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud.” Wolf v. Brungardt, 215 Kan. 272, 282, 524 P.2d 726 (1974); Fouts v. Armstrong Commerc ial Laundry Distributing Co., 209 Kan. 59, 69-70, 495 P.2d 1390 (1972). While the above-mentioned statement of law is well settled, this rule of law might be abused by real estate sellers and realtors. In characterizing the seller’s disclosure statement and the buyer’s acknowledgment and agreement in a real estate contract as essentially a disclaimer of liability, Professor William E. Westerbeke warned: “[T]his disclaimer could be at odds with cases in which the seller or realtor simply fails to disclose known defects in the house.” Westerbeke, Survey of Kansas Tort Law: Part II, 50 Kan. L. Rev. 225, 280 (2002). There is no doubt that the Brennans knew that the actual source of the water leaks could not be pinpointed without additional destructive testing but failed to disclose this information. Whether there is a duty to disclose depends on whether the defects could have been discovered by a reasonable inspection. The Kunzles conducted a number of inspections, but they did not discover the defects until after taking possession of the house. Moreover, the Kunzles presented evidence that the defects were not discoverable through reasonable inspections. The reasonableness of the Kunzles’ inspections was a question of fact. “ Tt is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law.’ ” Seabourn, 257 Kan. at 189 (quoting Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 [1974]). Because more than one conclusion can be drawn from the same evidence, the trial court erred in determining as a matter of law that the Kunzles failed to establish a genuine issue of material fact as to whether the defects could have been discovered had the Kunzles hired “professional inspectors to look at the water related items.” The determination of whether the defects were discoverable through a reasonable inspection was a function of the trier of fact. See Jenkins v. McCormick, 184 Kan. 842, 843-45, 339 P.2d 8 (1959) (The trial court properly overruled a demurrer to a petition alleging that the vendor had failed to disclose to the vendee of realty a known defect in the basement floor and that such defect could not be discovered by the vendee in the exercise of reasonable diligence.). Fraudulent Misrepresentations In order to establish an action for fraud, the Kunzles must prove that there was “an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or with reckless disregard for the truth, upon which another party relies and acts to his or her detriment. [Citation omitted.]” Alires v. McGehee, 277 Kan. 398, 403, 85 P.3d 1191 (2004). Based on the language in the disclosure statement in this case, it appears that the Kunzles cannot establish their reliance on the Brennans’ statements in the disclosure statement or those made before the disclosure statement was signed. Just above the Kunzles’ signature line, paragraph 5 of the “Buyer Acknowledgment and Agreement” section of the disclosure statement states: “I specifically represent that there are no important representations concerning the condition or value of the property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them.” Because the Kunzles did not indicate any representations upon which they were relying, they appear to have waived their right to rely on the Brennans’ statements in the disclosure statement and those made before the disclosure statement was signed. The language in the buyers’ acknowledgment here is distinguishable from that found in Alires. In that case, the sellers’ disclosure statement contained the following acknowledgment: “ 1 state that no important representations concerning the condition of the property are being relied upon by me except as disclosed above or as fully set forth as follows ....’” 277 Kan. at 402. Our Supreme Court noted that one of the alleged fraudulent representations was already listed in the disclosure statement itself. Our Supreme Court held that there was no need for the buyers to write in the representations on which they were relying because the representation was already listed. Here, however, the buyers’ acknowledgment does not contain the language “except as disclosed above,” as in Alires. Rather, the buyers’ acknowledgment here required the Kunzles to specifically indicate which representations on which they were relying. The language in the buyers’ acknowledgment here was present in McLellan, where this court held: “Under the facts of this case involving a real estate transaction, the language of the buyer’s acknowledgment in a disclosure statement was unambiguous and clearly directed the buyer to either indicate which representations she was relying on or agree to rely on none of them. When she did not so indicate, she waived her right to rely on the sellers’ representations in the disclosure statement.” 36 Kan. App 2d 1, Syl. ¶ 2. Here, the Kunzles’ failure to specifically set forth the Brennans’ representations on which they were relying precludes their fraudulent misrepresentation claim. Negligent Misrepresentations The Kunzles also assert that the Brennans made negligent misrepresentations concerning the condition of the house. The tort of negligent misrepresentation was first recognized in Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, Syl. ¶ 2, 876 P.2d 609 (1994), where our Supreme Court adopted the definition from the Restatement (Second) of Torts § 552 (1976). The Restatement (Second) of Torts § 552 defines negligent misrepresentation as follows: “ ‘(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.’ ” 255 Kan. at 604. Thus, by its own terms, the tort of negligent misrepresentation under Restatement (Second) of Tort § 552 imposes liability only for false information supplied to others. The major difference between the torts of fraudulent misrepresentation and negligent misrepresentation is that fraudulent misrepresentation requires proof that the defendant knew the statement was untrue or was reckless as to the truth or falsity of the statement, while negligent misrepresentation requires proof that the defendant failed to exercise reasonable care or competence to obtain or communicate true information. Gerhardt v. Harris, 261 Kan. 1007, 1018, 934 P.2d 976 (1997). Based on a liberal construction of the Kunzles’ counterclaim pleading, it appears that the Kunzles are alleging that the Brennans provided “false information” in the disclosure statement relating to the water leak condition and also when Derek Brennan told Christian Kunzle on May 30, 2001, that there were no problems with the house other than those described in the disclosure statement. Based on the analysis of the previous issue, it appears that Kunzles’ negligent misrepresentation claim also must fail. The buyers’ acknowledgment contained clear language that the Kunzles needed to indicate any representations upon which they were relying. Because the Kunzles did not indicate any representations upon which they were relying, they have waived their right to rely on the Brennans’ statements in the disclosure statement and those made before the disclosure statement was signed. Negligence In their 47-page appellate brief, the Kunzles make a one-paragraph argument that summary judgment was improper on their negligence counterclaim. The Kunzles contend that the Brennans were, in effect, the contractors in the construction of the house and could be held responsible for the defective construction of the residence. The Kunzles provide no relevant legal authority and simply make a conclusoiy argument. Supreme Court Rule 6.02(e) (2006 Kan. Ct. R. Annot. 36) requires that an appellant’s brief include “[t]he arguments and authorities relied upon.” Further, our Supreme Court has stated that “[sjimply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue. “Where the appellant fails to brief an issue, that issue is waived or abandoned. [Citation omitted.]’ ” McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) (quoting Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 [1999]); see also State v. Haney, 34 Kan. App. 2d 232, 248, 116 P.3d 747, rev. denied 280 Kan. 987 (2005) (Generally, an issue raised but not argued is deemed abandoned.). As a result, it is unnecessary to address this issue any further. Moreover, it appears that the trial court properly determined that the Kunzles could not establish the duty element of negligence in this case. In count II of their counterclaims, tire Kunzles alleged that the Brennans had a duty to exercise care in the design and construction of the house and in the repairs they made to the house before it was sold and that the Brennans breached these duties. Nevertheless, the trial court found that the Brennans had no such duty in this case. The trial court pointed out that the Brennans did not construct the house or perform repairs to the house. Rather, they hired independent contractors to perform this work. The trial court noted that the Brennans were not experts in the design, construction, or repair of homes. Moreover, they were not in the business of construction or of selling homes. Citing Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991), the trial court stated that an owner hiring contractors to perform work or services does not malee the owner liable for negligence of the contractor. Because the Kunzles could not establish the duty element of their negligence counterclaim, the trial court properly granted summary judgment to tire Brennans. Breach of Implied Warranties Again, the Kunzles make a one-paragraph argument in their appellate brief that summary judgment should not have been granted on their breach of implied warranties counterclaim. In granting summary judgment, the trial court pointed out that the disclosure statement in the real estate contract stated that the property was being sold “without warranties or guaranties of any land by SELLER or BROKER(S) or agents concerning the condition or value of the property.” In addition, citing Miles v. Love, 1 Kan. App. 2d 630, 573 P.2d 622, rev. denied 225 Kan. 845 (1977), the trial court found that an implied warranty to build a house or to perform other work in a “good and workmanlike manner” only applied to contractors and those in the business of selling services or contracting to provide work and did not apply to ordinary per sons who were merely selling their personal residence to other ordinary persons. As with the previous issue, the Kunzles provide no legal authority and simply make a conclusory argument as to why the trial court’s decision was in error. Therefore, it is unnecessary to address this issue any further. “As Is” Clause Finally, the trial court determined that the Kunzles “agreed to accept the house ‘as is’ following their opportunity to inspect and after their list of repair items in ‘Addendum A’ to the Amendment in the sale contract were resolved to their satisfaction. The Brennans argue that the Kunzles agreed to accept the property “as is.” Nevertheless, an “as is” clause is not a defense to fraud. See Alires, 277 Kan. at 409. Moreover, this conclusion is consistent with the majority view: an “as is” clause in a real estate contract does not shield a seller from liability for fraud. 277 Kan. at 409; see also S Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, 16, 31 P.3d 123 (2001) (“[A] vendor must disclose latent defects in property that are known to the vendor, notwithstanding the existence of a burden-shifting ‘as is’ clause or disclaimer of warranties.”); Stemple v. Dobson, 184 W.Va. 317, 323, 400 S.E.2d 561 (1990) (An “as is” clause in a real estate sale contract will not reheve the vendor of his or her obligation to disclose a condition that substantially affects the value or habitability of the property, is known to the vendor but not to the purchaser, and would not be disclosed by a reasonable and diligent inspection. Such failure to disclose constitutes fraud.). Should judgment have been entered on the Brennans’ mortgage foreclosure claim? Finally, the Kunzles argue that the trial court erred in entering a judgment in favor of the Brennans on their mortgage foreclosure claim. The Kunzles maintain that the Brennans should not have been allowed to proceed with their foreclosure action until the Kunzles’ counterclaims of fraud and misrepresentation had been resolved. As the Brennans point out, the Kunzles provide no relevant authority for their argument. Our Supreme Court has stated that “[s]imply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue. ‘Where the appellant fails to brief an issue, that issue is waived or abandoned. [Citation omitted.]’ ” McCain, 275 Kan. at 15 (quoting Bergstrom, 266 Kan. at 873). Moreover, it is apparent that the trial court was well within its authority to enter a judgment on the Brennans’ mortgage foreclosure claim. The trial court has the authority to order separate trials on any claim and counterclaim. See K.S.A. 60-213(j); K.S.A. 60-242(b); Hindman v. Shepard, 205 Kan. 207, 216, 468 P.2d 103 (1970), cert. denied 401 U.S. 928 (1971). Here, the Kunzles’ counterclaims do not provide a defense to the Brennans’ mortgage foreclosure action and would not affect the validity of the mortgage and promissory note. The Kunzles’ counterclaims did not relate to the creation or the inception of the mortgage or promissory note. At most, if the Kunzles prevail on their counterclaim of fraud by silence, they could receive an offset against the amount they still owe to the Brennans. CROSS-APPEAL Did the trial court err in denying the Brennans attorney fees to defend the counterclaims? In their cross-appeal, the Brennans argue that the trial court erred in ruling that the parties did not agree to reimbursement for attorney fees regarding the counterclaims. The Brennans’ argument requires interpretation of the promissory note and mortgage. The interpretation and legal effect of written instruments are matters of law over which an appellate court exercises unlimited review. Regardless of the construction given a written instrument by the trial court, an appellate court may construe a written instrument and determine its legal effect. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). “Attorney fees cannot be granted absent statutory authority or an agreement by the parties. A trial court does not have authority to impose attorney fees under its equitable powers absent statutory authority. [Citation omitted.]” Rensenhouse v. Bauer, 33 Kan. App. 2d 148, 150, 98 P.3d 668 (2004). Where the trial court has authority to grant attorney fees, its decision is reviewed under the abuse of discretion standard. Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002). Paragraph 6(E) of the promissoiy note allows for the recovery of attorney fees as follows: “If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. These expenses include, for example, reasonable attorneys fees.” Paragraph 19 of the mortgage document .entitles the Brennans “to collect all expenses incurred in pursuing the remedies provided in this paragraph 19, including, but not limited to, reasonable attorneys’ fees . . . .” In awarding attorney fees to the Brennans, the trial court stated that “[t]he promissoiy note and mortgage in question do provide for recovery of attorney’s fees, but they do not provide for the recovery of attorney’s fees incurred in defending the Counterclaims asserted by the [Kunzles].” The trial court awarded the Brennans $2,500 in attorney fees and expenses for the foreclosure of their mortgage. In arguing that the trial court should have awarded attorney fees incurred in defending the counterclaims, the Brennans cite to the real estate contract that provides for attorney fees when there has been a default under the contract. The Kunzles point out, however, that the real estate contract was never used as a basis for recovery of attorney fees in the trial court. Indeed, at the hearing before the trial court on this issue, the Brennans argued diat they were entitied to attorney fees under the promissory note. They never argued that they could recover attorney fees under the real estate sale contract. Because the Brennans failed to argue this point before the trial court, it is unnecessary to address whether they are entitled to attorney fees under the real estate contract. See Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). Moreover, under the doctrine of merger, the real estate contract would have merged into the deed or final contract of sale. Citing Blair Constr., Inc. v. McBeth, 273 Kan. 679, 686, 44 P.3d 1244 (2002), this court in Schlup v. Bourdon, 33 Kan. App. 2d 564, 571, 105 P.3d 720 (2005), set forth the doctrine of merger as follows: “ ‘It is a general rule of law applicable to all contracts, including deeds, that prior stipulations and agreements are merged into the final and formal contract or deed executed by the parties. When a deed is delivered and accepted as performance of a contract to convey, the contract is presumed to be merged into the deed. [Citations omitted.]’ ” When the deed or final contract does not contain a provision included in a prior agreement, the presumption is that the provision was waived or superseded by the final contract. 33 Kan. App. 2d at 571. It appears that the default provision in the real estate contract would have been superseded or merged into the deed executed by the parties. Nevertheless, as they argued before the trial court, the Brennans maintain that they are entitled to recover attorney fees for defending the counterclaims based on the language in the promissoiy note. The promissory note allows the Brennans to recover reasonable attorney fees “in enforcing” the note “to the extent not prohibited by applicable law.” Moreover, the mortgage document allows the Brennans to collect reasonable attorney fees in foreclosing the mortgage. This language allows the Brennans to recover attorney fees in enforcing the promissory note and in foreclosing the mortgage but does not allow for attorney fees in defending counterclaims asserted by tire Kunzles. Citing DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, 947 P.2d 1039 (1997), tire Brennans argue that the attorney fees incurred in defending the counterclaims were recoverable because they were integral to pursuing the mortgage foreclosure action. In De-Spiegelaere, this court stated: “An exception to the duty of a prevailing party’s attorney to segregate work on several causes of action arises when the attorney fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and, thus, are intertwined to the point of being inseparable, the party suing for attorney fees may recover the entire amount covering all claims.” 24 Kan. App. 2d 542, Syl. ¶ 2. Here, the Brennans’ mortgage foreclosure action and the Kunzles’ counterclaims did not entail “proof or denial of essentially the same facts” and were not “intertwined to the point of being inseparable.” The mortgage foreclosure action involved the Kunzles’ failure to pay on the promissory note and mortgage while the Kunzles’ counterclaims concerned the Brennans’ misrepresentations and failure to disclose information prior to the closing on the house. The parties’ claims required proof of entirely separate facts. Thus, the rule in DeSpiegelaere does not have application to this case. Did the trial court properly award interest under the promissory note and mortgage? Finally, the Brennans contend that the trial court erred in determining that the interest rate on default should fluctuate monthly based on the statutory rate published by the Secretary of State under K.S.A. 2006 Supp. 16-207. The Brennans’ argument requires interpretation of the promissory note and mortgage over which we exercise unlimited review. See Unrau, 271 Kan. at 763. The promissory note contains the following provision on interest: “The first six months of the note shall be interest free, thereafter, interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 7%. The annual interest rate upon maturity on the unpaid principal will be at the highest allowable by law.” The “maturity date” under the promissory note was August 3,2002. As the Brennans point out, K.S.A. 2006 Supp. 16-207(b) establishes the maximum interest rate that may be charged for notes secured by real estate and that statutory rate is published monthly by the Secretary of State. The trial court awarded interest on the note beginning August 2002 based on a fluctuating monthly interest rate. From August 2002, the trial court recalculated interest each month based on the new interest rate published monthly by the Secretary of State. The Brennans argue that the interest rate published by the Secretary of State that was in effect on August 3, 2002, should be the interest rate payable on the unpaid principal balance until it is paid in full. The Brennans’ argument is correct. The promissory note states that “[t]he annual interest rate upon maturity on the unpaid principal will be at the highest allowable by law.” (Emphasis added.) The language “upon maturity” sets the date at which the interest rate would be determined. Here, that date was August 3, 2002. The parties inform us that the interest rate that was “the highest allowable by law” on that date was 7.93%. The 7.93% fixed rate should be the interest rate on the unpaid principal balance until it has been paid in full. Moreover, the Brennans point out that K.S.A. 2006 Supp. 16-207(h) states that subsection (b), which sets forth the maximum interest rate that may be charged for notes secured by real estate and provides that the rate is published monthly by the Secretary of State, does not apply to real estate notes with adjustable rates. As the Brennans point out, it would be illogical that a default interest rate for a fixed-rate note would fluctuate. Based upon the language in the promissory note, the applicable interest rate should have been determined upon maturity and not redetermined each month based on the new statutory rate published monthly by the Secretary of State. Therefore, the trial court’s award of interest is reversed, and the case is remanded for the trial court to recalculate interest based on a 7.93% fixed interest rate from the date of maturity. In summary, we affirm the grant of summary judgment on the Kunzles’ counterclaims of negligent misrepresentation, negligence, and breach of implied warranties. We reverse the trial court’s grant of summaiy judgment on the Kunzles’ counterclaim of fraud by silence. We affirm the mortgage foreclosure and the award of attorney fees to the Brennans. We reverse the award of interest and remand the case with directions for the trial court to recalculate interest at the fixed rate of 7.93% from the date of maturity. Affirmed in part, reversed in part, and remanded for trial; reversed in part and remanded in part with directions.
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Malone, J.: Tracey A. Young appeals his convictions of one count of possession of methamphetamine and one count of possession of drug paraphernalia. Young claims the district court erred in denying his motion to suppress evidence. Young had been approached by a police officer in a city park, and he consented to a search of his person, which led to his arrest. This case raises a single issue: Was Young’s contact with the police officer a voluntary encounter or an investigatory detention? The facts are undisputed. While on routine patrol in the evening of February 25, 2005, Officer Brian Rousseau saw Young and Richard Beatty in a city park in Newton, Kansas. From his patrol vehicle, Rousseau observed Beatty hand something to Young, and the two men parted ways. Rousseau had prior contacts with Beatty and knew that he was involved with illegal drugs. Based on his observation of the exchange, Rousseau believed he may have witnessed a drug transaction. Rousseau continued to observe Young as he walked through the park. Prior to Young leaving the park, Rousseau exited his vehicle and approached him on foot. According to Rousseau’s testimony, the following exchange took place: “Q. [By the State] Officer Rousseau, when you made contact with Mr. Young, what happened then? “A. I asked him what was up, what was going on, where he was headed. He told me his girlfriend’s house. I asked where he was coming from, he said his apartment complex on Boyd. “Q. Okay. Did you — during your conversation with Mr. Young did you ob— did anything catch your attention? “A. While speaking with him I smelled a pretty strong odor of marijuana emitting from his person. “Q. What did that prompt you to do? “A. Based on what I observed between him and the — the subject who was later identified as Richard Beatty, I asked him if he had anything illegal on his person. “Q. What did he say? “A. He stated no. “Q. What did you ask him after that? “A. I asked him if he minded if I could search him. “Q. And what were you searching for, did you tell him that? “A. I just asked him if I could search him for illegal contraband. “Q. And what was his response to that? “A. He said I could search him. “Q. Okay. What did you do after you received permission to search his person? “A. Um, I felt on the outside of his right front pocket and, uh, while searching or feeling that pocket I felt a long tube in his pocket. I asked him what it was. “Q. Okay. What did he tell you it was? “A. Well, he stated it was — It’s a pen. “Q. [By the State] What happened after that? “A. I asked him if I could remove the pen from his pocket. “Q. Did he allow you to do that? “A. Yes, he did. “Q. Did he give you permission to do that? “A. Yes, he did. “Q. When you removed — what was it when you removed it? “A. It was just a hollowed ink tube cartridge just where there was no — just a pen without the ink cartridge in it. “Q. Okay. Anything about that catch your attention, Officer? “A. Uh, based on my training and experience, that’s a common tiling that people use to ingest illegal narcotics. Also inside the tube I saw white residue within the tube. “Q. And based on your training and experience what did you believe this white residue to be? “A. It was either metliamphetamine or cocaine.” Rousseau testified that the hollow ink tube field tested positive for methamphetamine and Young was placed under arrest. Young was charged with one count of possession of methamphetamine and one count of possession of drug paraphernalia. Young filed a motion to suppress the evidence seized from his person. The district court held an evidentiary hearing in which Rousseau was the only witness who testified. After hearing the evidence, the district court denied the suppression motion. The district court found that Rousseau did not have reasonable suspicion of criminal activity to detain Young, but the court found that Young had voluntarily consented to the search during a voluntary encounter with Rousseau. The case proceeded to a bench trial on stipulated facts consisting of the suppression hearing transcript, police reports of the arrest, and KBI lab reports. Young preserved his motion to suppress and continued to object to the admission of any physical evidence taken by the police and any statement he may have made at the time of the search. The district court found Young guilty as charged. Young timely appeals. Young claims the district court erred in denying his motion to suppress evidence. Young maintains his encounter with Rousseau was not voluntary. Rather, Young asserts he was seized by Rousseau without reasonable suspicion of criminal activity thereby making his detention illegal. The State maintains the contact between Young and Rousseau was a voluntary encounter, which is not considered a seizure under the Fourth Amendment to the United States Constitution. In reviewing a district court’s decision regarding suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). Young does not dispute the district court’s findings of fact. When the material facts to a district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of the Kansas Constitution Bill of Rights contains similar language and “provides protection identical to that provided under the Fourth Amendment to the United States Constitution. [Citation omitted.]” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003). There are four types of police-citizen encounters. The first type is a voluntary encounter, which is not considered a seizure under the Fourth Amendment. State v. Hill, 281 Kan. 136, 141, 130 P.3d 1 (2006). The second type is an investigatory detention or Terry stop, in which an officer may detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. K.S.A. 22-2402(1); see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The third type of encounter is a public safety stop in which an officer may approach a person to check on his or her welfare when the officer can articulate specific facts indicating a concern for the public’s safety. State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992). The fourth type of encounter between law enforcement officers and citizens is an arrest. K.S.A. 2006 Supp. 22-2401. Courts have sometimes struggled with the distinction between a voluntary encounter and an investigatory detention. Both instances involve contact between a law enforcement officer and a citizen, usually precipitated by the law enforcement officer. However, in a voluntary encounter, the citizen is always free to leave or terminate the encounter. State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991). A voluntary encounter is not considered a seizure and does not require the officer to have reasonable suspicion of criminal activity. Conversely, a person is seized when an officer displays his or her authority and restrains the person’s freedom to leave. Hill, 281 Kan. at 142. This requires the officer to have reasonable suspicion of criminal activity. The test for whether a seizure has occurred is based on what a reasonable person would believe under the totality of the circumstances surrounding the incident. 281 Kan. at 145. We will review leading cases drawing the distinction between a voluntary encounter and an investigatory detention before determining which instance applies to Young’s case. United States Supreme Court decisions In Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), two plain-clothes detectives approached the defendant at Miami International Airport believing he fit the profile of a drug smuggler. The detectives identified themselves as police officers and asked the defendant if he had a moment to speak with them. The defendant replied that he did. The detectives asked the defendant to produce his airline ticket and driver s license, and the defendant complied. The name on the defendant’s driver’s license did not match the name on his ticket, and the defendant became noticeably more nervous as he spoke with the detectives. The detectives then informed the defendant that they were narcotics investigators and that they had reason to suspect him of transporting narcotics. Without returning the defendant’s ticket or identification, the detectives asked the defendant if he would accompany them to a nearby room; the defendant acquiesced. Without the defendant’s consent, one of the detectives gathered the defendant’s luggage while the other detective waited with the defendant in the nearby room. The detectives asked the defendant if they could search his luggage, and the defendant produced a key for one of the suitcases. The detectives opened the suitcase and discovered drugs. The defendant did not have the combination for the second suitcase so the detectives asked if they could break it open. The defendant replied they could do so. The second suitcase also contained drugs, and the detectives arrested the defendant. In examining the nature of the contact between the defendant and the detectives, the Supreme Court recognized that law enforcement officers may engage in voluntary encounters with citizens in public places: “[L]aw enforcement officers do not violate die Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations omitted.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation omitted.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations omitted.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation omitted.] If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.” 460 U.S. at 497-98. The Supreme Court ultimately determined that when the detectives asked the defendant to accompany them to tire separate room while retaining his ticket and drivers license, the defendant was effectively seized for Fourth Amendment purposes. 460 U.S. at 501-03. The Court held the defendant had been illegally detained when he consented to the search of his luggage and, therefore, his consent was tainted by the illegal detention and was not voluntary. 460 U.S. at 507-08. Although the Court suppressed the evidence under the facts, the Court emphasized the contextual nature of a Fourth Amendment analysis: “We do not suggest that there is a litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop. . . . [T]here will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment.” 460 U.S. at 506-07. The Supreme Court reaffirmed the voluntary encounter principles from Royer in Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991). In Bostick, two officers, in uniform and carrying a weapon, boarded a bus and randomly asked the defendant to provide his ticket and identification for inspection. After matching the defendant’s identification to his ticket, the officers immediately returned tire documents to the defendant. Nevertheless, they continued the encounter by identifying themselves as narcotics agents and asking the defendant for consent to search his luggage. The defendant denied that he consented to the search, but the Florida trial court believed the officers’ testimony that consent was given. The officers discovered drugs in the defendant’s luggage and arrested him. The Florida Supreme Court ruled the encounter was an illegal detention, focusing on the fact that the defendant’s movements were confined because he was a passenger on a bus. The United States Supreme Court rejected this analysis and stated: “There is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports and has found them to be ‘the sort of consensual encounter[s] that implicate] no Fourth Amendment interest.’ [Citation omitted.] We have stated that even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [citations omitted]; ask to examine the individual’s identification, [citations omitted]; and request consent to search his or her luggage, [citation omitted] — as long as the police do not convey a message that compliance with their requests is required.” 501 U.S. at 434-35. In Bostick, the Court set forth an objective standard for determining whether a seizure has occurred, and the Court emphasized the determination must be made by examining the totality of the circumstances: “We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus.” 501 U.S. at 439-40. Applying Fourth Amendment jurisprudence to the facts in Bostick, die Supreme Court expressed doubt that the officers had ever seized the defendant. The Court noted the two officers had approached the defendant and asked for his identification, ticket, and consent to search his luggage. There was no evidence of any overt acts of intimidation or coercion. However, because the Florida trial court had not made express findings of fact, the Supreme Court remanded the case for further findings regarding whether the officers had seized the defendant under the totality of the circumstances. 501 U.S. at 437. In another case, Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996), the Supreme Court addressed whether a law enforcement officer must advise a citizen that he or she is “free to go” before an encounter can be considered voluntary. In Robinette, an officer stopped the defendant for speeding. After running a check on the defendant’s driver’s license that did not show any previous violations, the officer asked the defendant to step out of his car. The officer gave the defendant a verbal warning about speeding, returned his driver’s license, and asked, “ ‘One question before you [leave]: [A]re you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?’ ” 519 U.S. at 35-36. The defendant responded that he was not, and the officer asked if he could search the car. The defendant consented. The officer discovered illegal drugs inside the car. The Ohio Supreme Court held the search resulted from an unlawful detention and adopted a bright-line rule that citizens stopped for traffic offenses must be clearly informed by the detaining officer that they are free to go before the officer can attempt to engage in a consensual interrogation. The United States Supreme Court granted certiorari and considered the issue in light of its earlier rulings in Royer and Bostick. The Supreme Court held the Fourth Amendment does not require officers to inform individuals they are free to go before engaging in consensual interrogations, preferring an inquiry based on all the circumstances surrounding the encounter: " While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as tire sine qua non of an effective consent.’ [Schneckloth v. Bustamante, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973)]. And just as it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ [412 U.S.] at 231, so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” 519 U.S. at 39-40. It should be noted that on remand, the Ohio Supreme Court still suppressed the evidence discovered inside the defendant’s car. The court found the officer did not have reasonable suspicion of criminal activity to detain the defendant beyond the traffic stop and determined the defendant’s ultimate consent to the car search was involuntary under the totality of the circumstances. State v. Robinette, 80 Ohio St. 3d 234, 244-46, 685 N.E. 2d 762 (1997). Royer, Bostick, and Robinette clearly endorse the concept that law enforcement officers may engage in voluntary encounters with citizens in public places. An officer does not need reasonable suspicion of criminal activity in order to engage a citizen in a voluntary encounter. An encounter between a citizen and a law enforcement officer in a public place is considered voluntary as long as a reasonable person would feel free to decline the officer’s requests for information or otherwise terminate the encounter. This determination must be made by examining the totality of the circum stances. The officer is not required to inform the citizen that he or she is free to go before an encounter can be considered voluntary, but this is one factor to be considered under the totality of the circumstances. Kansas decisions The Kansas Supreme Court acknowledged the concept of a voluntary encounter in McKeown, 249 Kan. 506. McKeown addressed the issue of whether the police had grounds to stop the defendant’s vehicle. The stop of a moving vehicle by law enforcement is always considered a seizure. 249 Kan. at 510. The court discussed the standard set forth in Terry, 392 U.S. 1, that an officer must have a reasonable and articulable suspicion of criminal activity in order to justify a stop. However, in dicta, the court added: “An officer who does not have reasonable suspicion to justify a Terry stop may, however, approach an individual on the street for investigative purposes. [Citations omitted.] The officer can ask the individual’s name and request identification but cannot force the individual to answer. The individual is free to leave.” 249 Kan. at 509. The Kansas Court of Appeals addressed the constitutionality of a voluntary encounter in State v. Crowder, 20 Kan. App. 2d 117, 887 P.2d 698 (1994). In Crowder, two police officers on routine patrol parked in a motel lot known for drug activity. The defendant approached the motel and knocked on the door to one of the rooms. Then, noticing the patrol vehicle parked nearby, the defendant walked over to the driver’s side window of the patrol vehicle. The officer rolled down the window and asked the defendant his name and what he was doing. The defendant initially stated his name was David and he was looking for a friend. The officer exited the vehicle and asked the defendant if he could pat him down for weapons. The defendant agreed to the pat down, and no weapons were found. The officer again asked the defendant his name, and this time the defendant stated his name was Bryan. While the defendant and the officer were talking, the second officer noticed that the defendant seemed to have something in his mouth. The second officer asked the defendant to open his mouth, and the officer found a small plastic baggie containing cocaine inside the defendant’s left cheek. On appeal, the defendant argued the officers had seized him and his consent to the search was not voluntary due to the coerciveness of the encounter. However, the court considered the encounter voluntary and stated: “Crowder contends that he did not believe he could end the contact with the officers because there were two of them, armed and in uniform, and neither informed him that he was free to leave. Crowder cites U.S. v. Ward, 961 F.2d at 1259, and U.S. v. Bloom, 975 F.2d 1447 (10th Cir. 1992), for the proposition that these factors establish the coerciveness of tire encounter. While some of these factors are present in Ward and Bloom, the court in both cases relied heavily on the fact that the ‘seizures’ took place in a private compartment on a railroad car and that the officers asked ‘ “focused, potentially incriminating questions.” ’ 975 F.2d at 1454. “Neither of these factors is present here. While it is true that there were two officers with Crowder, the contact occurred in a public place and the officer’s request for Crowder’s name was neither coercive nor incriminating. [Citation omitted.] “Crowder correctly argues that the officers’ unspoken belief that Crowder was free to go does not preclude the existence of a seizure. Likewise, an individual’s view of the situation colored by his or her fear of being caught engaging in criminal activity cannot be grafted onto an otherwise innocent encounter to convert it into a seizure. [Citation omitted.]” 20 Kan. App. 2d at 121. Thus, the court affirmed the denial of the defendant’s suppression motion, finding the defendant’s consent was voluntary under the totality of the circumstances. 20 Kan. App. 2d at 122. The Kansas Supreme Court upheld a voluntary encounter in State v. Reason, 263 Kan. 405, 951 P.2d 538 (1997). In Reason, two police officers approached a vehicle parked in a public parking lot and found two persons were sleeping inside the vehicle with the doors open. The officers awoke the defendant who was sleeping in the driver’s seat and asked if he was okay. The officers then requested identification from both occupants of the vehicle. The defendant informed the officers he did not have any identification as his wallet had been stolen, but the defendant insisted he owned the vehicle. The officers ran a check on the vehicle’s identification number which confirmed the defendant was the owner. While one officer was still checking the passenger s identification, the other officer informed the defendant he was free to go. Shortly thereafter, however, the officer asked the defendant for permission to search the vehicle. The defendant consented, and the officers found illegal contraband inside the vehicle. The Kansas Supreme Court discussed the United States Supreme Court holdings in Royer and Bostick and determined the police contact began as a voluntary encounter when the officers first approached the parked vehicle to check on the occupants. 263 Kan. at 412. However, the court determined the encounter transformed into an investigatory detention based on reasonable suspicion when the defendant claimed ownership of the vehicle but failed to produce either the vehicle registration or personal identification. 263 Kan. at 412-13. Once the officers had completed the warrant check and informed the defendant he was free to go, the court determined the contact transformed back into a voluntary encounter. The court noted the officers did not thwart any attempt by the defendant to leave, make any untoward demonstration of authority, show weapons, or engage in other coercive behavior. 263 Kan. at 413. The court determined the defendant’s consent to the search was voluntary under the circumstances. The court noted there was no taint to purge from the consent because there had been no illegal detention. 263 Kan. at 410. The court also noted the officer had specifically informed the defendant he was free to go, but found this factor was not conclusive in determining the voluntariness of the defendant’s consent: “The ‘free to go’ signal is a factor in determining whether [the defendant] objectively felt under police coercion at the time of his consent. Even if [the officer] had failed to tell [the defendant] he was free to go before requesting consent to the search, that may not necessarily have invalidated the consent. [Citations omitted.]” 263 Kan. at 414. In State v. Grace, 28 Kan. App. 2d 452, 17 P.3d 951, rev. denied 271 Kan. 1039 (2001), the defendant was a passenger in a car that pulled up to a bar so that another passenger could check whether a friend was inside. Two officers approached the car to make sure the driver was not intoxicated. The officers saw no signs of alcohol or drugs inside the car. Nevertheless, the officers conducted a warrant check on the occupants of the car, which took at least 15 minutes. One of the officers testified that the occupants of the car were free to go while the warrant check was being conducted, but neither of the officers ever informed them of this fact. Ultimately, one of the officers asked the defendant if the officer could search him, and the defendant consented. The officer found a black pouch on the defendant, which contained methamphetamine. The Court of Appeals suppressed the evidence on the ground that the defendant had been detained without reasonable suspicion of criminal activity, and the illegal detention tainted the defendant’s consent to the search, thereby making the consent involuntary. In reaching this result, the court determined the defendant’s prolonged detention converted what may have been a voluntary encounter into an investigatory detention: “Even if the officers’ initial approach of [the defendant] and the other occupants of the car did not qualify as a stop, the continued interaction for approximately 25 minutes while the warrant checks were run converted what could have been characterized as a voluntary encounter into an investigatory detention. Although officers are entitled to approach a stopped car and ask a few questions, [citations omitted], they clearly did more than that here.” 28 Kan. App. 2d at 458. In State v. Morris, 276 Kan. 11, 72 P.3d 570 (2003), the Kansas Supreme Court elaborated on what circumstances constitute a show of authority sufficient to effectuate a seizure. Police officers observed the defendant speak with a woman who had left an apartment which was under surveillance as a possible methamphetamine lab. The officers attempted to follow the defendant in his pickup truck but were unsuccessful due to traffic. Later in the day, the officers observed the defendant parked in his pickup truck on a rocky jetty-breaker at a state lake, and the police pulled their vehicle behind the defendant’s pickup truck. The police activated their vehicle’s emergency lights even though they were well off the roadway. The officers approached the pickup truck and detected a chemical odor associated with methamphetamine, and they observed additional items associated with the production of methamphetamine inside the pickup truck on the passenger side floor board. The police searched the pickup truck and uncovered a fairly complete methamphetamine lab. In evaluating the nature of the encounter, the court determined that a seizure occurs when “there is the application of physical force” or when “there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave [citation omitted] and the person submits to the show of authority. [Citation omitted.]” 276 Kan. at 18-19. Examples of a show of authority include activation of sirens or flashers, a command to halt, a display of weapons, or an attempt to control the suspect’s ability to flee or the direction of travel during a chase. 276 Kan. at 20. Under the facts presented, the court determined the defendant was seized when the police activated their vehicle’s emergency lights for other tiran safety reasons and, at that moment, the police did not have reasonable suspicion the defendant was engaged in criminal activity. It is significant to note that the activation of emergency lights by the police on a highway or other busy location for safety reasons may not have signaled a seizure. See 276 Kan. at 23-24. We conclude our review of cases with State v. Lee, 283 Kan. 771, 156 P.3d 1284 (2007). In Lee, two police officers were dispatched to a public park in response to a report of a suspicious man walking through the park, looking on the ground, and hitting the ground with a stick. The officers approached the man, who was later identified as the defendant, requested his identification, and asked what he was doing. The defendant explained he was looking for his wallet that he had lost the previous week. Although the defendant’s behavior was not threatening, one of the officers asked if he had any weapons. The defendant removed two knives from his pocket. The officer then asked for permission to conduct a pat-down search for weapons, and the defendant complied. The officer discovered a bulge in the defendant’s pocket and, without asking for consent, the officer reached in the pocket and removed a rolled-up baggie which contained methamphetamine. On appeal, the Kansas Supreme Court found the police officers’ contact with the defendant was a voluntary encounter. 283 Kan. at 777. The court determined that a reasonable person in the defendant’s situation would have felt free to disregard the officers and go about his or her business. The court noted that even though there were two officers, there was no evidence the officers displayed their weapons, physically restrained the defendant, or spoke with a commanding tone of voice. 283 Kan. 771, Syl. ¶¶ 3, 4. The court also determined that depending on the facts of the case, an individual may consent to a request for a pat-down search for weapons without transforming a voluntary encounter into an investigatory detention. 283 Kan. 771, Syl. ¶ 5. The court found the defendant’s consent to the pat-down search was voluntary under the circumstances. In doing so, the court specifically rejected the district court’s conclusion that the officers’ presence was coercive merely because tire officers were wearing uniforms and carrying standard-issue weapons. 283 Kan. at 777-78. However, the court ultimately suppressed the evidence seized from the defendant because the court concluded the officer violated the plain feel exception to the requirement for a search warrant when he removed the baggie from the defendant’s pocket while searching only for weapons. 283 Kan. at 780. Young’s encounter Turning to the facts of this case, Young claims his encounter with Rousseau was a seizure rather than a voluntary encounter. Young contends Rousseau exerted three separate displays of authority which communicated that Young was seized: (1) Rousseau was wearing his police uniform and weapon, (2) Rousseau blocked Young’s path of travel, and (3) Rousseau demanded that Young answer questions. There is simply nothing in the record to support Young’s last two contentions. Rousseau’s testimony at the suppression hearing was undisputed. The evidence indicated that Rousseau exited his vehicle and approached Young on foot before he left the city park, but there was no evidence that Rousseau blocked Young’s path or prevented him from leaving. There was also no evidence that Rousseau demanded that Young answer any questions. Rousseau’s testimony, set forth verbatim in this opinion, reflects that Rousseau only asked questions of Young, and he did not give any orders or make any demands for Young to answer. This leaves the fact that Rousseau was wearing his police uniform and weapon as the only display of authority. Young argues that a “police uniform is a display of authority, and should be taken into account in determining whether a police-citizen encounter is voluntary.” However, the mere fact that an officer is in uniform and carrying a weapon does not render the encounter coercive. See Bostick, 501 U.S. at 434-39; Lee, 283 Kan. at 778. The situation would have been different had Rousseau drawn his weapon on Young or displayed his weapon in any manner to threaten or intimidate Young. These were not the facts, and obviously Rousseau was not required to shed his uniform or remove his weapon before approaching Young. In determining that the encounter between Rousseau and Young was voluntary, the district judge found: “Under the facts and circumstances elicited at the hearing, I cannot find that the officer’s actions conveyed a message that compliance was required. The officer made no threats or show of force, or coercion, other than his mere presence in a uniform. . . . “The defendant may have felt or thought he had to comply with the officer’s requests, however, the officer took no action to lead to such a mistaken belief. The officer asked, and did not demand or require the defendant to comply.” The district court’s findings are supported by the record. The facts here are similar to the facts in Lee and possibly even less characteristic of a seizure than the facts in Lee because Young was approached in a park by only one officer. Rousseau did not activate the emergency lights before he exited his vehicle. Rousseau did not command Young to stop, speak in a commanding tone of voice, physically restrain Young, attempt to control Young’s ability to flee, or otherwise indicate to Young that he was not free to leave. See Lee, 283 Kan. at 776-77; Morris, 276 Kan. at 18-20. Although the record does not state exactly how much time Rousseau spent questioning Young, it appears from the testimony that the entire encounter lasted only a few minutes. Rousseau did not inform Young that he was free to leave or that he was not required to answer any questions. However, an officer is not required to give a citizen such advice before an encounter can be considered voluntary. See Robinette, 519 U.S. at 39-40; Reason, 263 Kan. at 414. Whether the citizen subjectively knows that he or she is free to decline to answer an officer s questions is only one factor to be considered under the totality of the circumstances. Reason, 263 Kan. at 414; Crowder, 20 Kan. App 2d at 121. Young did not testify as to his understanding of the nature of his encounter with Rousseau. Viewed objectively, Young was always free to leave and he could have declined at any time to answer Rousseau s questions. Under the totality of the circumstances, the encounter between Rousseau and Young was voluntary. After Young responded to Rousseau’s initial questions, Rousseau asked for permission to search Young’s person. Young consented. The district court found Young’s consent to be voluntary: “The defendant was asked if the officer could search and the defendant consented to the intrusion. The officer did not order him to allow the search, he simply asked. The defendant was free to say no, and absent any objective coercive behavior by the officer, there is nothing in the record to suggest the defendant’s consent was a result of improper coercion or threat.” These findings are also supported by the record. Because Young’s detention was not illegal, there was no taint to purge from his consent. Reason, 263 Kan. at 410. Young’s consent was voluntary under the circumstances, and the evidence discovered as a result of the search was lawfully obtained. As the United States Supreme Court stated in Royer, 460 U.S. at 506, “there will be endless variations in the facts and circumstances” of cases involving voluntary encounters between law enforcement officers and citizens. Each case must be judged by examining the totality of the circumstances. Cases that begin as a traffic stop or an investigatory detention which the officer attempts to transform into a consensual encounter are problematic. See State v. Hayes, 35 Kan. App. 2d 616, 626, 133 P.3d 146 (2006); State v. Moore, 34 Kan. App. 2d 795, 802, 124 P.3d 1054 (2005), aff'd 283 Kan. 344, 154 P.3d 1 (2007). However, this is not that type of case. This case simply involves a police officer approaching a citizen in a public place and asking questions. Such activity by an officer does not constitute a seizure unless there is some display of authority which signals to the average citizen that he or she must comply with the officer s requests. There was no such display of authority by the officer in this case. In summary, the encounter between Young and Rousseau was voluntary when viewed objectively under the totality of the circumstances. In fact, if this encounter is not considered voluntary, it is difficult to imagine any situation that would be. Young was never seized, and his Fourth Amendment rights were not implicated. The search of Young’s person was lawful based on his voluntary consent. Accordingly, the district court did not err in denying Young’s motion to suppress the evidence. Affirmed.
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Rulon, C.J.: Defendant Dale E. McCormick appeals his convictions for aggravated kidnapping, aggravated burglary, and aggravated intimidation of a witness or victim. The defendant challenges the district court’s refusal to appoint substitute counsel; tire admission of evidence seized in violation of tire Fourth Amend ment; the admission of prejudicial photographs; the denial of the defendant’s request for a psychological evaluation of the victim; and the court’s jury instructions on aggravated kidnapping and aggravated burglary. The defendant further contends the prosecution prejudiced his ability to obtain a fair trial by withholding exculpatory evidence and committing multiple instances of misconduct. We affirm. The defendant met the victim, Yasmin Haque, in a class at Wash-burn University in 1997. Thereafter a friendship developed as the two interacted socially on a limited basis and studied together. The defendant attempted to pursue a romantic relationship, but the victim continually rebuffed the defendant’s advances, indicating she was not interested in a romantic relationship. Eventually, the victim told the defendant she no longer wished him to contact her. When the defendant continued to contact the victim she began to file police reports against the defendant. Over the course of the next several years the defendant continued to contact the victim. At one point the defendant followed the victim home from a gas station to learn where she was currently living. Shortly thereafter the victim’s daily journal was taken from her residence, and the defendant demonstrated possession of the journal by copying pages and leaving the pages on the porch of the victim’s residence. On Februaiy 7, 2003, the victim noticed the telephone box outside her residence was open. Fearing the defendant had tampered with her telephone lines, the victim called the police and the telephone company. A representative from the telephone company inspected the box but found no signs of tampering. On February 16, 2003, at approximately 5:30 a.m., the victim was awakened by a noise which she quickly identified as the rustling of the mini-blinds in the living room. The victim grabbed the telephone by her bed and investigated the noise. Upon reaching the doorway between her bedroom and the living room the victim observed a man dressed in dark clothing and wearing a sld mask. The man appeared to be standing up after climbing through one of the living room windows. The victim began screaming and tried to call the police, but she was unable to get a dial tone. The defendant then pulled off the sld mask and said, “Yas, it’s me. It’s me.” The victim continued to scream until the defendant crossed the room and covered her mouth. Because the defendant was wearing gloves, the victim began to have difficulty breathing and she began to fight the defendant. The defendant grabbed the victim’s wrists, overpowered her, and pushed her onto the bed. During the struggle the victim continued to try to call the police until the defendant forcibly removed the telephone from her. The defendant straddled the victim and kept her pinned to the bed. The defendant took his hand away from the victim’s mouth when she agreed to stop screaming. The defendant asked the victim why she had made false reports to the police and why she had written certain things in her journal. According to the victim the defendant said he planned to kill himself, and the victim worried that he might kill her first. Because the victim appeared distraught the defendant offered to comfort the victim but the victim replied, “Excuse me. You fucking broke into my house.” The defendant then stated the victim had called him, and the victim screamed, at the defendant, “What? I didn’t call you, you fucking psychopath. I never called you.” As the defendant again covered tire victim’s mouth she again struggled unsuccessfully to break free from the defendant. After the victim stopped struggling and after she repeatedly commanded the defendant to get off her bed, the defendant stood and allowed the victim to stand, although he blocked the doorway out of the bedroom. The victim moved to the bedroom window and began looking out the window. The defendant then asked, ‘What are you waiting for? They’re not coming.” The victim assumed the defendant was speaking of the police. When the victim attempted to raise the mini-blinds the defendant prevented her; when she attempted to open the blinds he tried to pull her hand away from the wand, which came off in the victim’s hand. Using the wand the victim began to hit the defendant on the neck, shoulders, and head until the defendant took the wand away from her. Eventually, the victim insisted the defendant allow her to use the bathroom. The defendant initially refused to allow the victim to shut the door but finally relented. The victim did not believe she could escape out the bathroom window because there was no lock on the bathroom door. When the victim emerged from the bathroom, the defendant stood only a few feet from the bathroom door. The defendant told the victim he could not live without his wife. When the victim replied that she was not his wife the defendant told her she was supposed to be his wife. When the defendant asked the victim to look him in the eye and tell him there was never a chance of them getting married the victim complied but the defendant refused to believe her. After talking further the defendant pleaded, “Yas I fell in love with you. I can’t close my heart to you now.” However, when the victim did not respond, the defendant begged her not to call the police and promised to leave her alone in exchange for her promise not to report the incident to the police. When the victim told the defendant she would think about it the defendant decided to leave. As soon as the defendant left, the victim went to the kitchen to try another phone. As she did so, the defendant reappeared at the open window and commented, “Oh, the window’s still open.” The defendant then shut the window and replaced the storm screen. After ascertaining the kitchen phone also was not working, the victim ran to a neighbor’s house and asked to call the police. The police arrived shortly after the victim called, and the victim left the neighbor’s house to speak with the officers. As the victim reported the incident, the officers immediately relayed the information to dispatch and other officers were directed to the defendant’s residence. The officers eventually took the victim to the law enforcement center to record her statement and then escorted her to the hospital for a physical examination. The examination noted only some bruising and swelling of the wrists which occurred when the defendant held and pinned the victim. However, the victim suffered a cut lip and some bruising on her legs which were not immediately apparent to the nurse examiner. Receiving the name and description of the defendant from dispatch, Officers Monroe and Kelly drove to the defendant’s residence. Seeing the defendant emerge from the back yard of his residence, the officers approached the defendant, who immedi ately stated, “She called you guys, didn’t she?” Officer Kelly informed the defendant the officers needed to question him about an alleged trespassing incident and handcuffed the defendant. Meanwhile, Officer Monroe noticed a backpack near the defendant and placed it in the patrol car without searching the contents. The defendant was arrested, given his Miranda warnings, and transported to jail. In conducting a routine pat down of the defendant before booking him, jail personnel discovered a ball gag in the defendant’s right pants pocket and some keys. When the gag was discovered, the defendant voluntarily commented, “Some of us are into that kinky stuff, you know.” The backpack was taken to the law enforcement center and inventoried as the personal property of the defendant. From the victim’s account, the officers knew the defendant had been carrying the backpack when he entered the victim’s residence. The backpack contained a length of cotton rope, a wooden paddle with black tape wrapped around the handle, a homemade leather whip, a carton of Camel Light cigarettes, two cigarette lighters, a green journal notebook that the victim identified as the one taken from her residence, a yellow flashlight, a leatherman’s tool, an 8-millimeter camcorder cassette, a padlock with its key, a hand-held socket ratchet with the 3/8" socket attached, a socket holder completely filled except the 3/8" socket, a choke chain, a yellow Phillips-head screwdriver, a package containing several items including a pen, some matches, $.36, and an empty tic-tac box, a loose camcorder batteiy, three condoms, loose cash amounting to $11, a checkbook with checks fisting Dale McCormick as tire account holder and seven $20 bills, a Dillard’s charge card, and a camcorder. A search warrant was obtained and executed on the defendant’s residence. The return on the warrant indicated the officers seized floppy disks, VHS tapes, 8 millimeter camcorder cassettes, photographs, a black stocking hat, an envelope with the defendant’s name and address, writable compact discs, micro-recorder audio cassettes, standard audio cassettes, an Apple I/Maclntosh com puter, a Compaq Presario computer, and a box of trash collected from the victim. An investigation of the interior of the victim’s living room revealed the dust on top of the interior window frame had been disturbed, and the mini-blinds covering the window were slightly disarrayed. A plant in front of the window had lost several of its leaves, some of which were green and healthy. An examination of the exterior of the residence indicated fresh wood shavings underneath the living room window. The officers noted the storm screen on the window was attached by only three screws. Using only a Phillips-head screwdriver, the officers removed the screen, and the frame swung to the ground near the comer that had fresh scrapes in the wood. Later, using a credit card, Detective Burket was able to unlatch the window from outside the residence. Recalling the victim’s statement that she was unable to hear a dial tone, Detective Burket checked the phone box outside the victim’s residence. Although the box revealed no fingerprints, it required use of a 3/8" socket or Phillips-head screwdriver to open and to manipulate the wires inside. At the request of Burket, Ken Keane, the phone company representative who had examined the phone box on February 7, examined the box again and opined the arrangement of the phone box had been altered. Eventually, the State charged the defendant with aggravated kidnapping, in violation of K.S.A. 21-3421 and K.S.A. 21-3420(b) or, in the alternative, K.S.A. 21-3420(c); aggravated burglary, in violation of K.S.A. 21-3716; and aggravated intimidation of a witness or victim, in violation of K.S.A. 21-3833(a)(l). After a maelstrom of motions and hearings, which the district court patiently and fairly considered, the defendant stood trial on Januaiy 26, 2004, through February 5, 2004. The jury returned guilty verdicts on each charge. The defendant filed additional motions for a new trial and/or to set aside the verdict, which the district court denied after several hearings. The district court denied the defendant’s motion for a downward sentencing departure. The court sentenced the defendant to serve 195 months in prison for the aggravated kidnapping conviction; 32 months for the aggravated burglary conviction; and 18 months for the aggravated intim idation of a witness conviction. The aggravated intimidation sentence was ordered to run consecutive to the kidnapping and burglary sentences; the aggravated burglary sentence was ordered to run concurrent with the kidnapping sentence; and the defendant’s controlling sentence was 213 months in prison. Denial of Motion for Substitute Counsel Of primary concern to this court on appeal is the district court’s denial of the defendant’s motion for substitute counsel. The defendant argues he did not wish to represent himself but was forced to proceed pro se when the district court refused to allow his appointed counsel to withdraw and to appoint new counsel. Refusal to Appoint Substitute Counsel Although the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel, the right does not extend to providing an indigent defendant with the representation of his or her choice. Therefore, the decision to grant a criminal defendant new appointed counsel depends heavily upon the circumstances presented in a given case, and the district court possesses broad discretion in determining whether to appoint new counsel. State v. Cromwell, 253 Kan. 495, 856 P.2d 1299 (1993). An appellate court will reverse a judgment of the district court for an abuse of discretion only when no reasonable person would have adopted the view of the district court. State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006). When a criminal defendant seeks the appointment of new counsel, the defendant must establish a justifiable dissatisfaction with the existing counsel, which has been narrowly interpreted to mean a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and the defendant. State v. Jasper, 269 Kan. 649, 654, 8 P.3d 708 (2000). Not all disagreements between counsel and defendants constitute irreconcilable conflicts or lead to complete breakdowns in communication. State v. Ferguson, 254 Kan. 62, 71, 864 P.2d 693 (1993). In a closed hearing outside the presence of the State, the district court inquired into the basis for the defendant’s request for new counsel. The only conflict alleged by the defendant involved disagreements over trial strategy. Specifically, the defendant contended his attorneys refused to challenge his arrest, to challenge the search warrant on First Amendment grounds, to file a State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), motion, and to utilize various other defense tactics the defendant believed were appropriate. The defendant’s appointed counsel, Mark Manna and Alice White, agreed the conflict in the representation involved a fundamental disagreement in the appropriate trial strategies to be pursued in the defense. Manna further indicated that, without communicating with counsel, the defendant frequently filed motions which undermined defense trial strategies. After hearing the comments of the defendant and his attorneys, the district court noted the defendant had previously been represented in this case by Joseph Johnson, who withdrew when the defendant refused to abide by Johnson’s advice regarding the defendant’s desire to file a civil suit while the criminal charges were pending. After Johnson withdrew, the court had a difficult time finding local attorneys capable of representing the defendant, due, in large part, to the number of conflicts these attorneys had with the defendant in prior representation. These conflicts occurred primarily because the defendant wished to control his own representation without regard to the advice of his attorneys. Because the district court had heard nothing to indicate Manna and White’s representation was deficient in any regard, the court found the defendant had not presented a justifiable dissatisfaction with his appointed counsel and denied the defendant’s motion. The court reasoned: “[W]e could go and [sic] on and on in this matter. If I make that ruling, then the next attorney is the same way. In other words, ultimately the attorney would have to agree with how you want to tactically approach this case. “Now, I can’t tell an attorney, ‘I’m going to appoint you to Dale McCormick’s case, but you have to do what he wants you to do.’ That would be violating their oath and that would be, in a sense, you having standby counsel as opposed to— again, I could keep appointing attorneys until the chickens come home to roost, but there’s no guarantee that you’re going to get along with any of them, as far as their agreement on what should and shouldn’t be filed, unless you have absolute control of the case, and I can’t guarantee you that by appointing you other counsel.” Because the district court refused to appoint new counsel, the defendant chose to represent himself. The district court ordered Manna and White to remain in the case as stand-by counsel. In Ferguson, a criminal defendant requested substitute counsel based upon a complete breakdown in communication between her attorney and herself. Although our Supreme Court concluded the representation had suffered from a breakdown in communication, the Ferguson court refused to find an abuse of discretion in the district court’s denial of the defendant’s request for substitute counsel when the evidence clearly indicated the breakdown in communication was the fault of the defendant. 254 Kan. at 73-74. The Ferguson court reasoned: “Arguably, the trial judge could have appointed substitute counsel for Ferguson, as was done in [State v. Long, 206 Mont. 40, 669 P.2d 1068 (1983)]. However, based upon Ferguson’s testimony to the court, appointment of substitute counsel would have been an exercise in futility. The court had no viable option other than to appoint counsel paid by the State. There is no reason to believe such substitute counsel would fare any better than trial counsel did.” 254 Kan. at 75. The current case is distinguishable from the facts of Ferguson to the extent this defendant did not systematically refuse to cooperate with his counsel’s requests like Ferguson. Nevertheless, the defendant’s conduct in this case inevitably leads to the same result. A criminal defendant represented by counsel is entitled to control over three decisions: (1) whether to accept a plea; (2) whether to demand a jury trial; and (3) whether to testify. All other strategic and tactical decisions, including preparation, scheduling, and the type of defense, lie within the province of trial counsel. State v. Rivera, 277 Kan. 109, 116-17, 83 P.3d 169 (2004). While a criminal defendant has the right to consult with appointed counsel and to discuss the general direction of his or her defense, the strategic and tactical decisions are matters for the professional judgment of counsel. State v. Bafford, 255 Kan. 888, 895, 879 P.2d 613 (1994). By refusing to follow the advice of his attorneys and by filing motions without their knowledge or consent, the defendant was attempting to control not only the direction of his defense but the strategy and tactical decisions associated with that defense. Consequently, the irreconcilable conflict or breakdown in communication alleged by the defendant was caused by the defendant’s conduct. The district court did not abuse its discretion in finding appointment of new counsel would be an exercise in futility under the circumstances. Pro Se Representation Because the defendant lacked justifiable dissatisfaction with his appointed counsel, the defendant’s decision to represent himself was not coerced by the district court’s refusal to appoint new counsel. The defendant was presented with the choice of competent counsel to represent him or self-representation. The Sixth Amendment guarantees a criminal defendant the right to self-representation. However, because the right of self-representation frequently conflicts with the right to representation by competent counsel, a court must adopt a presumption against waiver of the right to counsel, and a waiver of the right to represent oneself may be assumed by the failure to unequivocally assert the right. Once a criminal defendant clearly and unambiguously expresses a wish to proceed pro se, though, a court must allow the self-representation after obtaining a knowing and intelligent waiver of the right to counsel. State v. Vann, 280 Kan. 782, 793, 127 P.3d 307 (2006). “Waiver of the right to counsel must be knowingly and intelligently made based on the facts and circumstances of each case. [Citation omitted.] Kansas courts have adopted a three-step framework to determine whether a waiver is knowing and intelligent. First, a defendant should be advised of both his or her right to counsel and right to appointment of counsel in cases of indigency. Second, the defendant must possess the intelligence and capacity to appreciate the consequences of the waiver. Third, he or she must comprehend the nature of the charges and proceedings, the range of punishments, and all facts necessary to a broad understanding of the case. [Citation omitted.]” State v. Mixon, 27 Kan. App. 2d 49, 51, 998 P.2d 519, rev. denied 269 Kan. 938 (2000). Shortly after being charged, the defendant expressed a desire to handle his own defense until he could secure counsel. The district court required the defendant to complete a written waiver of counsel, which noted the maximum sentence for each charge inde pendent of the other charges and acknowledged the rights the defendant would waive by proceeding pro se. After Johnson withdrew from the case, the defendant unsuccessfully sought to find new counsel. Consequently, the district court appointed Manna and White to represent the defendant. After several motions hearings, the defendant filed a motion indicating an intent to represent himself. When the district court denied the defendant’s request to proceed pro se, the defendant filed his motion for substitute counsel. Because the defendant insisted on representing himself when his request for substitute counsel was denied, the district court reviewed the written waiver the defendant had earlier filed in the case. Based on the record, we are satisfied the defendant’s waiver of the right to counsel was knowing and intelligent. Under the circumstances, the district court properly allowed the defendant to proceed to represent himself. The district court took the additional precaution of assigning Manna and White to serve as stand-by counsel. The defendant’s argument he was deprived of his Sixth Amendment right to counsel possesses no legal merit. Searches and Seizures The defendant additionally challenges the district court’s rejection of his Fourth Amendment claims. When a party challenges a suppression ruling on appeal, the reviewing court adopts those factual findings of the district court that are supported by substantial competent evidence but considers the ultimate legal determination independently. State v. Hill, 281 Kan. 136, 140, 130 P.3d 1 (2006). (A) Inventory Search of the Backpack Generally, a search conducted without a warrant issued upon probable cause is unreasonable. The law, however, recognizes a few limited exceptions, including inventory searches. Inventory searches are considered reasonable because such serve three purposes: (1) the protection of the owner’s property while it remains in police custody; (2) the protection of the police against claims of lost or stolen property; and (3) the protection of the police from hazardous objects contained within a criminal defendant’s personal property. State v. Shelton, 278 Kan. 287, 294, 93 P.3d 1200 (2004). The linchpin of an inventory search analysis, as in every Fourth Amendment question, is reasonableness. See Pool v. McKune, 267 Kan. 797, 803-04, 987 P.2d 1073 (1999) (citing Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619, 103 L. Ed. 2d 639, 109 S. Ct. 1402 [1989]). But, because the reasonableness of a search is not capable of precise definition or mechanical application, courts have adopted an approach which balances the government interest against tire invasion of personal rights involved. Pool, 267 Kan. at 804. Under a Fourth Amendment reasonableness test, the officers’ decision to collect the defendant’s backpack at the time of his arrest was justified under the circumstances. The backpack was within the defendant’s immediate vicinity at the time of the arrest, even if the defendant had walked a few steps away from the bag. It was not unreasonable for the officers to believe the backpack constituted personal property of the defendant at tire time of his arrest, which, if not collected, would be subject to loss or damage. At the time of the defendant’s arrest, the officers did not search the backpack but, in conformity with Lawrence police department policies, seized the backpack and took it with the defendant to the jail. Due to space limitations, the police then logged the defendant’s excess personal items into the found property storage area in the law enforcement center. The search of the backpack was reasonable as an inventory search, and the district court properly refused to suppress the contents of the backpack as fruits of an illegal search. (B) Evidence Obtained from the Search of the Defendant’s Residence The defendant further challenges the use of evidence seized from the search of his residence or fruit of the search, claiming the search warrant was invalid. Assuming without deciding that the search of the defendant’s residence was illegal because such was premised upon an invalid search warrant, the only objectionable evidence introduced at trial as a result of the search was four pic tures depicting individuals engaged in sexual bondage activities and a few entries from the defendant’s personal journal related to the victim. The admission of this evidence, even if wrongful, was clearly harmless. “ ‘Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional harmless error rule. 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 the error is harmless. Before an appellate court may declare such an error harmless, the court 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. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.’ [Citation omitted.]” State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004). The defendant admitted he had entered the victim’s residence early in the morning on February 16. He further admitted he had brought sex toys with the intention of using them with the victim. The issue before the jury was merely one of intent. The victim testified clearly about what occurred and specifically identified the defendant. The victim’s account was corroborated by circumstantial evidence regarding the defendant’s entry through the window. The defendant’s journal entries obtained from the defendant’s computer helped to establish the State’s theory of criminal intent to the extent such evidence demonstrated the obsessive nature of the defendant’s relationship to the victim. However, the prejudice caused by the admission of the journal entries was significantly minimized by the amount of other evidence related to the relationship between the defendant and the victim properly admitted. The State offered a videotape the defendant delivered to the victim in which the defendant recorded himself under his bed coverings addressing “pillow talk” to the victim. This videotape was not seized as the result of the search of the defendant’s residence. Similarly, tire State offered a letter from the defendant to the victim which enclosed two leather straps. The letter indicated the use for the straps in the following manner: “ ‘I will be the man now and guide us through this time. You be like a woman should be in certain emergencies and take orders from your man. Sweetie, I’m not kidding. Way, way too much time has gone by already. Today, Friday the 9th, is the last day we waste. Tomorrow’s the day we start our lives together. It may or may not be forever. That is up to you. But we have love and we have endless passion and it is right now. Today is the last day we waste. Tomorrow, July 10th, our new lives start. Not sort of, not partway, not hallway, but 100 frappin [sic] percent. “ ‘Now as the man, I’m telling you that you as the woman have been bad. I’ve already told you that you owe me a debt. That is what the package is for. Open it now. They go on your wrists. Try them on. Have them on tomorrow night, Saturday night, at 11 p.m. Have on something simple along with them, like a bra or T-shirt. If you have plans that overlap 11 p.m., break them. Sweetie, I brought those for two reasons. One fun and one serious. One, your bottom owes me a debt, and those are to make sure that I get to pay it without you resisting too much. Yes, I am totally serious. “ ‘The second reason is much more profound. There is an absolute symbology to your acquiescence right now. By letting me be in charge and steer us through this turbulence and into tranquility, you will say to me that you know I love you with all of my heart.’ ” Although the defendant claimed this letter reflected an inside joke the defendant shared with the victim, the jury heard that the victim called the police when she received this letter. The State properly introduced photocopied pages from the victim’s journal upon which the defendant had written additional comments to the victim. The State properly admitted the sex toys discovered in the defendant’s backpack. The prejudice to the defendant by the admission of the bondage photographs seized from the defendant’s computer was limited to removing from the jurors’ imaginations the intended use of the sex toys. The defendant testified he took the bondage toys to the victim’s house on Februaiy 16 because she had expressed a desire to pay her “outstanding debts.” Based upon the defendant’s own admissions and the amount of evidence properly introduced to demonstrate the defendant’s intent, we firmly conclude the admission of the evidence obtained from the search of the defendant’s residence and/or computer was constitutionally harmless, even if the search was illegal. Psychological Evaluation of the Victim The defendant further complains the district court prejudiced his defense by refusing to allow the defendant to obtain a psychological evaluation of the victim. Whether a criminal defendant is entitled to an independent psychological evaluation of a victim is left to the sound discretion of the district court. An appellate court will not disturb a district court’s exercise of discretion absent a showing the district court’s judgment was arbitrary, fanciful, or unreasonable, which is another way of saying abuse of discretion is found only when a district court takes a position no reasonable person in similar circumstances would have taken. State v. Price, 275 Kan. 78, 80, 83, 61 P.3d 676 (2003). The right of a criminal defendant to request a victim to submit to a psychological evaluation is limited to cases in which the victim has alleged a sex crime against the defendant. See State v. McIntosh, 274 Kan. 939, 941-45, 58 P.3d 716 (2002). The reason for so limiting the right to a psychological evaluation of the victim is related to the nature of some sex crime cases, i.e., an uncorroborated allegation of a sex crime which may have been the result of a mental condition transforming a wishful biological urge into a fantasy, or an aggressive tendency prompted by a desire for attention. State v. Gregg, 226 Kan. at 487. Here, the victim did not allege the defendant committed a sex crime, even though the State sought to demonstrate, through circumstantial evidence, the defendant entered the victim’s residence with the intent to commit a sexual battery. Moreover, the victim’s allegations against the defendant are corroborated, albeit by circumstantial evidence. Consequently, the district court did not err in finding that Gregg did not permit a psychological evaluation of the victim under the circumstances of this case. Jury Instructions The defendant challenges the district court’s jury instructions on two bases: (1) the district court erroneously included the intent to commit a sexual battery within the jury instructions on aggravated burglary, and (2) the jury instruction regarding the bodily harm element of aggravated kidnapping was deficient and misleading. The defendant failed to object to either of these instructions at trial. Where a criminal defendant challenges jury instructions for the first time on appeal, this court reviews the instructions as a whole to determine whether the offending instruction is clearly erroneous. A jury instruction is clearly erroneous only when the reviewing court is convinced of a real possibility the jury would have returned a different verdict had the erroneous instruction not been given. State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006). (A) Aggravated Burglary The defendant contends the instruction on aggravated burglary included a prosecution theory that had been dismissed during the prehminaiy hearing, i.e., sexual battery. The defendant contends that allowing the jury to consider a charge dismissed after a prehminaiy hearing violates due process. The defendant confuses alternate theories for an offense with evidence to support probable cause that the offense occurred. The Fourth Amendment to the United States Constitution requires a fair and rehable probable cause determination before an individual is significantly detained for criminal prosecution. In Kansas, this probable cause determination occurs when a magistrate holds a preliminary examination or when an indictment is issued by a grand jury. State v. Thompkins, 263 Kan. 602, 618, 952 P.2d 1332 (1998). During the defendant’s prehminaiy hearing, the district court bound the defendant over for trial on all charges of the complaint, including aggravated burglary. The court noted, however, the State’s evidence at the prehminaiy hearing did not support all of the various theories presented by the prosecution. Relying on Thompldns, the defendant argues the district court’s finding that the State had presented insufficient evidence of sexual battery constituted a dismissal of that theory of prosecution. The defendant’s argument does not bear close scrutiny. In State v. Young, 277 Kan. 588, 87 P.3d 308 (2004), a criminal defendant was charged and arraigned on premeditated first-degree murder, but the district court instructed the jury on a theory of felony murder, as a lesser included offense of premeditated first-degree murder. While noting that felony murder is not a lesser included offense of premeditated murder, our Supreme Court ruled that the instruction on felony murder was not error, plainly rejecting the reasoning employed in Thompkins. The Young court noted the evidence produced at trial clearly supported the instruction on felony murder and the prosecution did not mislead the defense in its presentation of the case. Because felony murder was merely an alternate theory of first-degree murder, the court properly instructed the jury on the alternate theory where the evidence supported the instruction. 227 Kan. 588, Syl. ¶¶ 4, 5. Similarly, the defendant cannot demonstrate prejudice from the State’s presentation of the sexual battery theory of aggravated burglary. The State consistently maintained the defendant entered the victim’s residence with the intent to commit a sexual battery, and the defense merely argued his entry into the residence was authorized. Under the reasoning of Young, the district court committed no error in instructing the jury on the State’s sexual battery theory of aggravated burglary. (B) Aggravated Kidnapping The district court’s jury instruction on the bodily harm element of aggravated kidnapping stated: “ ‘Bodily harm’ includes any act of physical violence even though no permanent injury results. Trivial or insignificant bruises or impressions resulting from the act itself should not be considered as ‘bodily harm.’ ” This instruction exactly follows the suggested definition provided in the notes to PIK Crim. 3d 56.25, except that the final sentence was omitted: “Unnecessary acts of violence upon the victim, and those occurring after the initial abduction would constitute ‘bodily harm’.” The defendant contends this omission misled and confused the jury. We conclude that, if the instruction confused the jury, the confusion prejudiced the State not the defendant. The final sentence of the instruction given to the jury explained that trivial injuries arising out of the victim’s confinement did not constitute bodily harm. The jury was not told that unnecessary acts of violence, even if inflicted during the confinement, could con stitute bodily harm. The jury was not told that injuries occurring after the confinement was completed could constitute bodily harm. These omissions benefit the defendant; therefore, the instruction, if erroneous, provides the defendant with no basis for relief. Exculpatory Evidence After his trial, the defendant filed several motions for a new trial. One basis for a new trial was the State failed to produce exculpatory evidence. On appeal, the defendant specifically challenges the State’s refusal to produce a forensic laboratory report the Kansas Bureau of Investigation (KBI) prepared in relation to a DNA analysis of scrapings from the victim’s fingernails and the State’s failure to disclose extant notes used to create police reports in this case. (A) KBI Laboratory Report There is no legal merit to the defendant’s contention he was not provided with the KBI laboratory report. While the defendant clearly made discovery requests to the State, there is no indication in the record on appeal he did not receive the laboratory report. In fact, die KBI forensic biologist was called as a defense witness. The defendant clearly knew the results of the forensic examination of the fingernail scrapings but was unable to present these results to the jury because tire defendant could not establish the proper foundation for the admission of the DNA report. (B) Investigatory Notes of Police Officers While the record supports the defendant’s allegations that at least two police officers possessed undisclosed field notes with which their reports were prepared, the record indicates the State was completely unaware of these reports until after the trial. Consequently, before this court will order a new trial, the defendant must establish a high level of materiality of the undisclosed exculpatory evidence. See State v. Adams, 280 Kan. 494, 501, 124 P.3d 19 (2005). On appeal, the defendant argues only the notes of Officer Garcia were material. Garcia’s notes indicated Lucille Toback, the victim’s neighbor, claimed to be awake at 5:30 a.m. on Februaiy 16 and heard no noises until 6:45 a.m. The defendant claims this testimony was material because such would have allowed the defendant to impeach the victim’s account that she had been screaming when the defendant entered her residence. Although the statements of Toback to Garcia are material, this evidence was merely cumulative. Toback testified at trial she awoke before 5 a.m. on February 16 and never heard screaming from the victim’s residence. The jury heard this testimony, which was consistent with the notes taken by Garcia, but apparently did not believe the testimony discredited the victim. We firmly conclude the unintentional failure to disclose Garcia’s field notes does not constitute grounds for reversing the defendant’s convictions and remanding the case for a new trial. Prosecutorial Misconduct The final issue to be considered in this appeal concerns the defendant’s allegations of prosecutorial misconduct. The defendant alleges the prosecutor: (1) violated the district court’s orders regarding the introduction of photographs purportedly depicting the victim and the victim’s residence; (2) improperly impeached a defense witness with unfounded accusations; (3) made inflammatory and prejudicial remarks in closing statements, (4) misstated evidence produced at trial; and (5) misled the juiy on the law. Although the defendant failed to object to much of this alleged misconduct, our standard of review is the same whether the alleged misconduct was preserved by a contemporaneous objection or is challenged for the first time on appeal. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006). Appellate review of allegations of prosecutorial misconduct involves a two-part analysis: a performance prong and a prejudice prong. First, the court must decide whether the alleged misconduct transgressed the permissible bounds of zealous advocacy, remaining cognizant of the wide latitude permitted prosecutors to argue reasonable inferences from the evidence adduced at trial. State v. Robertson, 279 Kan. 291, 303, 109 P.3d 1174 (2005). If the prosecutor’s conduct is found to have been improper, the court must then consider the prejudice, if any, to the defendant’s ability to obtain a fair trial. Three factors should be considered in deter mining whether a defendant has been prejudiced by improper prosecutorial conduct: “ ‘(1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.’ ” State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Having reviewed the defendant’s allegations of prosecutorial misconduct in light of the entire trial record, we conclude the allegations either have no foundation in fact or had no influence upon the juiy’s deliberations. Affirmed.
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Green, J.-. Paul Robert Dayhuff appeals his jury trial conviction and sentence for aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). First, Dayhuff argues that he was denied his right to a unanimous verdict because the prosecutor relied on acts not charged in the complaint to obtain his conviction. Nevertheless, the juiy in this case was properly instructed on the elements of the charged crime. Moreover, the State never argued to the jury that uncharged acts could provide a basis for Dayhuff s conviction. Further, tire jury was properly instructed on juror unanimity in a multiple acts case. Therefore, Dayhuff s argument fails. Next, Dayhuff argues that his right to a fair trial was violated by the admission of prior evidence under the plan exception of K.S.A. 60-455. Because there was insufficient evidence presented in this case to show a “strikingly similar” or a “signature” act, we conclude that the trial court erred in admitting evidence of Dayhuff s prior crimes under the plan exception of K.S.A. 60-455. As a result, Day-huff s case must be reversed and remanded for a new trial. Next, Dayhuff contends that his right to a fair trial was violated by the conduct of a child advocate during the child’s testimony. We determine that the trial court’s refusal to allow Dayhuff to develop a factual basis for his motion for mistrial at the time of trial denied him the opportunity to show what, if any, influence the child advocate’s conduct may have had on the child’s testimony when the child’s credibility was being considered by the juiy. Accordingly, we reverse and remand for a new trial. Next, Dayhuff argues that cumulative error denied him a fair trial. Nevertheless, we have already determined that there is re versible error in this case. Whether considered alone or in combination, the errors in this case denied Dayhuff a fair trial. Finally, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Dayhuff contends that the trial court erred in including his prior convictions in his criminal history. Because we are reversing, we need not consider Dayhuff s challenge to his criminal history. But see State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Facts On June 15, 2003, Pam Brown reported to the police that her daughter, H.D., had told Brown that she had been sexually abused by Dayhuff. Brown and Dayhuff had been married to each other but had divorced in February 1998. Brown told the interviewing officer that after returning home from a visit with Dayhuff, H.D. had told Brown that Dayhuff had put his hands down H.D.’s pants several times and had attempted to get H.D. to touch his penis. H.D. was 9 years old at the time of the alleged incidents. The sexual abuse allegedly occurred when H.D. was staying with Dayhuff at his brother’s home between June 2, 2003, and June 13, 2003. H.D. told Brown about the sexual abuse the day before she was scheduled to return to Dayhuff s home for another visit. Brown testified that H.D. told her that Dayhuff had touched her vagina and had attempted to place H.D.’s hand on his penis. H.D. told Brown that the touching had occurred at night. Brown called the police and reported the sexual abuse. Brown also faxed a voluntary written statement to the police department. After Brown faxed her statement, H.D. told Brown that Dayhuff had said that he would kill Brown if H.D. told her about the abuse. Susan Beitzinger, an investigative social worker, interviewed H.D. on June 17, 2003. The interview was videotaped. Beitzinger was the only person with H.D. during the interview. A police officer and Katherine Adams, a child advocate, observed the interview through a one-way mirror. During the interview, H.D. told Beitzinger that she had lain down at night in a bedroom at Day-huffs brother’s home when Dayhuff raised her nightgown and reached into her underwear and touched her private part. H.D. was lying in her bed, and Dayhuff was lying naked in his bed in the same room. Dayhuff s brother was in a downstairs bedroom. H.D. told Beitzinger that Dayhuff told H.D. to keep it a secret. The following morning, H.D. was still lying in her bed when Day-huff asked her to touch his private part. H.D. refused to touch Dayhuff. On June 24, 2003, Brown took H.D. to the hospital for a sexual assault examination. H.D. told the examining nurse, “I don’t like my daddy any more. He touched me. He touched me a lot of times.” The examining nurse found no physical evidence of sexual abuse. Nevertheless, the nurse testified that she would not expect to find any physical evidence of sexual abuse when a child had been touched on the outside of the vagina. Moreover, the nurse testified that when an exam occurs over 72 hours after the alleged sexual abuse, any trauma would have healed by that time. The State charged Dayhuff with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). Before trial, the State moved to admit evidence of Dayhuff s prior crimes against his previous girlfriend’s daughter, S.A., to show plan under K.S.A. 60-455. The trial court granted the State’s motion to admit the evidence under K.S.A. 60-455. At trial, Bobbie Wiltsie, who investigated S.A.’s case, testified about four separate incidents of sexual abuse allegedly committed by Dayhuff against S.A. In addition, S.A. testified about two of these instances of sexual abuse. Before Wiltsie and S.A. testified, Dayhuff renewed his objection to the introduction of the prior crimes evidence under K.S.A. 60-455. H.D. testified at trial about the alleged sexual abuse. H.D. recounted two incidents when Dayhuff had touched her while they were lying in separate beds in a bedroom at Dayhuff s brother’s house. During the first incident, Dayhuff reached under H.D.’s clothes and touched the outside of her vagina. H.D. testified that Dayhuff was not naked when he touched her. H.D. testified that this incident occurred at night. In the second incident, Dayhuff again reached under her clothes and touched the outside of her private part. Dayhuff also grabbed H.D.’s hand and attempted to have her touch him. According to H.D., this second incident oc curred when it was dark outside. H.D. testified that Dayhuff told her to keep it a secret. Immediately after H.D.’s testimony, Dayhuff moved for a mistrial on the basis that an individual in the courtroom had been gesturing to H.D. and shaking her head while H.D. testified, essentially coaching H.D.’s testimony. Dayhuff informed the trial court that another attorney, John Bullard, who was watching the trial, had told him of the individual’s action and that defense counsel’s secretary had also been in the courtroom. Dayhuff requested that he be allowed to present testimony from his counsel’s secretary about the individual’s actions. The trial court told Dayhuff that he could bring up the issue in a motion for a new trial if he was convicted. The jury found Dayhuff guilty of aggravated indecent liberties with a child. Dayhuff moved for a new trial. Among numerous issues raised in his motion for a new trial, Dayhuff argued that although he informed the trial court that an individual in the courtroom had been directing H.D.’s testimony, the trial court did not take any action with this information. After conducting an evidentiary hearing, the trial court denied Dayhuff s motion for a new trial. The trial court sentenced Dayhuff to 204 months in prison. I. Was Dayhuff denied his right to a unanimous verdict? First, Dayhuff argues that he was denied his right to a unanimous verdict because the State relied upon acts that were legally insufficient to sustain a conviction for aggravated indecent liberties with a child based upon how the crime was charged in the complaint. K.S.A. 22-3403 and K.S.A. 22-3421 give a criminal defendant tire right to a unanimous jury verdict. State v. Unruh, 281 Kan. 520, 527, 133 P.3d 35 (2006). An appellate court exercises de novo review over issues of jury unanimity. State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005). Dayhuff maintains that the State argued to the jury that Day-huffs conviction could be based upon either: (1) Dayhuff touching H.D. on the outside of her vagina; or (2) Dayhuff placing H.D.’s hand on his penis the next morning. The complaint in this case charged Dayhuff with aggravated indecent liberties with a child based upon “engaging in an act of lewd fondling or touching of the person of H.D.” Although K.S.A. 21-3504(a)(l)(A) defines aggravated indecent liberties with a child as engaging in “[a]ny lewd fondling or touching of the person of either the child [who is under 14 years of age] or the offender” (emphasis added), the State never amended the complaint to allege the alternative means of committing the crime by H.D. touching Dayhuff. Dayhuff alleges that the State’s failure to amend or clarify the complaint to allege a lewd fondling or touching of Dayhuff resulted in jury confusion and violated his right to a unanimous verdict. A. Instruction on Elements of Crime Nevertheless, the jury was properly instructed on the elements of aggravated indecent liberties with a child consistent with the elements alleged in the complaint. The jury was instructed that in order to convict Dayhuff of aggravated indecent liberties with a child, they needed to find that Dayhuff “fondled or touched H.D. ■in a lewd manner, with intent to arouse or to satisfy the sexual desires of either H.D. or the defendant, or both.” No mention was made in the juiy instruction of Dayhuff forcing or attempting to force H.D. to touch him. “As a general rule, juries are presumed to have followed instructions given by the trial court. [Citation omitted.]” State v. Rogers, 276 Kan. 497, 503, 78 P.3d 793 (2003). Moreover, “[i]t is a juiy’s legal duty and proper function to accept the law as given in the instructions.” State v. McClanahan, 212 Kan. 208, 214, 510 P.2d 153 (1973). The jury was properly instructed that the charged crime of aggravated indecent liberties with a child was based upon Dayhuff touching H.D. B. State’s Argument Moreover, Dayhuff mischaracterizes the State’s argument to the jury. Before trial, Dayhuff sought to clarify the multiple acts upon which the State was proceeding. Dayhuff questioned whether the State was relying on the following acts: (1) the act where Dayhuff touched H.D. and (2) the act where Dayhuff forced H.D. to touch him the following morning. The State responded that the two acts upon which it was proceeding were the two times that Dayhuff touched H.D., once at night and once in the morning. Indeed, during opening statement, the State told the jury that the evidence would show there had been two instances of Dayhuff touching H.D., once at night and once in the morning. Moreover, at the beginning of closing argument, the State informed the jury that the evidence showed that there had been two instances of Dayhuff touching H.D.: “Now that you’ve heard all the evidence, it should be apparent to you that Paul Dayhuff abused the trust with . . . [H.D.], when he touched her vagina, [not] once but twice. Both of these touches occurred between the days of June 2nd and June 13th, 2003, in Labette County in Oswego, Kansas.” The State proceeded to discuss the evidence that Dayhuff had touched H.D. twice, first at night and then the following morning. Although the State, while discussing the evidence concerning the second touching, did go over the testimony that Dayhuff had also attempted to force H.D. to touch him that morning, the State never argued that the act of H.D. touching Dayhuff could provide a basis for his conviction. C. Unanimity Instruction Although the State did not elect which of the two instances of Dayhuff touching H.D. it was relying to support the charged crime of aggravated indecent liberties with a child, there was no error here based on the unanimity instruction given to the jury. Where multiple acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in these cases, our Supreme Court has required that either the State elect the particular criminal act upon which it will rely for conviction or the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. State v. Dickson, 275 Kan. 683, 696, 69 P.3d 549 (2003). The pattern jury instructions for Kansas have a specific instruction for use in multiple acts cases. See P.I.K. Grim. 3d 68.09-B. Here, the trial court instructed the jury in accordance with P.I.K. 68.09-B as follows: “The [S]tate claims distinct multiple acts which each could separately constitute the crime of aggravated indecent liberties with a child. In order for the defendant to be found guilty of aggravated indecent liberties with a child, you must unanimously agree upon the same underlying act.” Therefore, we conclude that Dayhuff was not denied his right to a unanimous verdict. II. Did the trial court err in admitting prior crimes evidence under KS.A. 60-455? Next, Dayhuff contends that the trial court violated his right to a fair trial by allowing the State to present evidence from a 1992 case, where he pled no contest to two counts of indecent liberties with a child, under the plan exception of K.S.A. 60-455. Previously, our Supreme Court has stated that “[a]ppellate review of the admission of prior crimes evidence under K.S.A. 60-455 is limited to whether the trial court abused its discretion or whether the trial court admitted clearly irrelevant evidence. [Citations omitted.]” State v. Dotson, 256 Kan. 406, 412, 886 P.2d 356 (1994). More recendy, however, our Supreme Court has applied a de novo standard in reviewing the trial court’s admission of K.S.A. 60-455 evidence: “Reviewing whether the trial court properly admitted evidence pursuant to K.S.A. 60-455 requires the court to review the legal basis for the district court’s decision. When an appellate court reviews the legal basis for admitting evidence, the standard of review is de novo.” State v. Horton, 283 Kan. 44, Syl. ¶ 2, 151 P.3d 9 (2007). In State v. Overton, 279 Kan. 547, 551-52, 112 P.3d 244 (2005), our Supreme Court set forth the requirements for the admissibility of evidence under K.S.A. 60-455: “Although evidence of prior crimes and other civil wrongs is inadmissible to prove a person’s propensity to commit crime, thereby implying that he or she committed the crime at issue, K.S.A. 60-455 allows the admission of such evidence when that evidence is relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before evidence of prior crimes may be admitted pursuant to K.S.A. GO-455, three requirements must be met. ‘First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice.’ [Citation omitted.]” If these three requirements are met, an appellate court’s review is limited to whether the trial court abused its discretion. Discretion is abused when no reasonable person would take the view of the trial court. State v. Jones, 277 Kan. 413, 420, 85 P.3d 1226 (2004). The State’s motion to admit evidence under K.S.A. 60-455 requested that evidence of Dayhuff s prior sex crimes against S.A. be admitted to prove plan. After conducting an evidentiary hearing, the trial court allowed the State to introduce evidence of Dayhuff s prior criminal conduct towards S.A. under K.S.A. 60-455. Wiltsie and S.A. testified at trial about Dayhuff s molestation of S.A. in 1991. Wiltsie was a child abuse investigator when he interviewed S.A. about the sexual abuse. S.A. told Wiltsie that in June 1991, S.A., her sister, her mom, and Dayhuff were all sleeping in a bedroom at Dayhuff s brother’s home. Dayhuff was engaged to S.A.’s mother. In the middle of the night, S.A. had asked Dayhuff if she could sleep next to him because she was cold. S.A.’s mother and sister were in the same bed as Dayhuff. As S.A. was lying next to Dayhuff, he put his hand underneath her clothing and touched the outside of her vagina. S.A. told Wiltsie about a second touching that occurred at S.A.’s house in Oswego. S.A., her sister, her mother, and Dayhuff were watching television when S.A. and her sister fell asleep on the floor of the living room. Dayhuff lay down on the floor and reached underneath S.A.’s clothing and touched the outside of her vagina. S.A.’s mother was asleep on the couch when the touching occurred. Wiltsie testified that S.A. told him about a third incident when S.A. and Dayhuff were again lying on the floor in the living room and he reached under her clothing and touched the outside of her vagina. S.A.’s mother was again asleep on the couch. S.A. also told Wiltsie about a fourth touching that occurred in September or October 1991 when she was at home watching television. Dayhuff covered S.A.’s mother, who was asleep on the couch, with a blanket and lay down on the floor next to S.A. Day-huff reached underneath S.A.’s clothing and touched the outside of her vagina. Dayhuff placed S.A.’s hand on his penis, but S.A. pulled her hand away from him. Dayhuff again placed S.A.’s hand on his penis, but S.A. pulled her hand away from him and placed it under her pillow. S.A. was 10 years old when the incidents occurred. S.A. testified at trial that she could remember only two of the touching incidents involving Dayhuff. S.A. testified about an incident when she and Dayhuff were lying on the floor watching television and her mother was asleep on the couch. S.A. had fallen asleep, and she awoke to discover Dayhuff touching the outside of her vagina. S.A. testified about a second incident that occurred when Dayhuff was lying next to her in the living room, and he reached underneath her clothing and touched the outside of her vagina. S.A. testified that Dayhuff placed her hand on his penis. S.A. pulled her hand away from Dayhuff, but he grabbed her hand again and placed it on his penis. S.A. pulled her hand away from Dayhuff again. Before the jury retired for deliberations, the trial court instructed the jury that evidence admitted tending to prove that Day-huff committed a crime other than the present crime charged “may be considered solely for the purpose of proving the defendant’s plan.” In State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), our Supreme Court recognized two theories for admitting evidence of a prior crime or civil wrong to prove plan under K.S.A. 60-455. Under the first theory, evidence of a prior crime or civil wrong is admitted to show modus operandi or the general method the defendant used to commit similar but totally unrelated crimes. Recognizing that evidence of prior unrelated acts is admissible to show plan, our Supreme Court stated: “The rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citation omitted.]” 245 Kan. at 682. Under the second theory, evidence of a prior crime or civil wrong is admitted to show plan where there is a direct or causal connection between the prior act and the crime charged. The State acknowledges that this second theory does not apply to the present case. Instead, the State argues that evidence of Day-huff s prior crimes was admissible under the first theoiy to show modus operandi or the method used by Dayhuff to commit the unrelated crimes. On the other hand, Dayhuff contends that his prior crimes were not sufficiently similar to the charged crime to demonstrate a modus operandi. A. Strikingly Similar In Jones, 277 Kan. at 421, our Supreme Court recognized that several decisions have upheld the admission of K.S.A. 60-455 evidence in sex crime cases where the details of the plan for the prior crimes and the crime for which the defendant was on trial were “strikingly similar.” Jones cited State v. Rucker, 267 Kan. 816, 826-29, 987 P.2d 1080 (1999); State v. Tiffany, 267 Kan. 495, 497-502, 986 P.2d 1064 (1999); Damewood, 245 Kan. at 682; and State v. Aldaba, 29 Kan. App. 2d 184, 189-92, 25 P.3d 149 (2002), as examples of such decisions. Moreover, in State v. Tolson, 274 Kan. 558, 564, 56 P.3d 279 (2002), our Supreme Court held that the method of operation in Damewood was so distinct as to be a “signature.” Nevertheless, our Supreme Court in Jones pointed out that in State v. Clements, 252 Kan. 86, 90, 843 P.2d 679 (1992), it upheld the admission of prior crimes evidence to prove plan under K.S.A. 60-455 with no requirement of “striking” similarities because the evidence showed that the general method used by the defendant was “ ‘similar enough to show a common approach that is tantamount to a plan.’ ” Jones, 277 Kan. at 421. Our Supreme Court in Jones analyzed the admissibility of prior crimes evidence to show plan under K.S.A. 60-455 by comparing the similarities to the dissimilarities between the prior crimes and the crime for which the defendant was on trial. In making this comparison, our Supreme Court discounted the similarities that may exist in many child sexual abuse scenarios. See 277 Kan. at 421-23. In the instant case, as in Jones, both similarities and dissimilarities existed between the prior crimes and the crime charged. Both S.A. and H.D. were young girls — S.A. was 10 and H.D. was 9 when the abuse occurred. Dayhuff touched both S.A. and H.D. by reaching under their clothing and touching the outside of their vaginas. During one of the incidents with S.A., Dayhuff forced S.A. to touch his penis. Similarly, during one of the incidents with H.D., Dayhuff either forced or attempted to force H.D. to touch his penis. One of the incidents with S.A. and both of the incidents with H.D. occurred in a bedroom at Dayhuff s brother’s home where they were staying overnight. Dayhuff and both S.A. and H.D. were lying down during the incidents. The dissimilarities in this case were that all of the incidents with S.A. occurred when there was another adult sleeping in the room. In contrast, Dayhuff was alone with H.D. when the alleged incidents occurred. Three of the incidents with S.A. occurred in the living room of S.A.’s home, while both incidents with H.D. occurred in a bedroom of Dayhuff s brother’s home. Further, Day-huff told H.D. to keep the abuse a secret or told H.D. that he would kill Brown if H.D. told anyone. On the other hand, there was no evidence that Dayhuff made a similar request of S.A. or threatened S.A. Moreover, H.D. was related to Dayhuff, while S.A. was the daughter of Dayhuff s fiancée. In arguing before the trial court that Dayhuff s conduct was a “signature act,” the State cited State v. Kackley, 32 Kan. App. 2d 927, 92 P.3d 1128, rev. denied 278 Kan. 849 (2004). In Kackley, this court found that the defendant’s act of first placing the hands of his underage girl victims on his exposed penis was a “signature” act. This court stated that “it is a signature act because it is so strikingly similar in pattern or modus operandi as to authenticate the conduct as the defendant’s when it is allegedly replicated in a later case.” 32 Kan. App. 2d at 932. This court distinguished Jones because there was no such signature sexual act in that case. In Jones, our Supreme Court noted that the prior crime involved only fondling in isolation, while the crime charged began with intercourse in a group. In Kackley, this court further distinguished Jones because the dissimilarities in Kackley between the prior acts and the crime charged were either relatively minor or reflected only the degree of success obtained. This court upheld the admission of the K.S.A. 60-455 evidence to show plan. 32 Kan. App. 2d at 932. In Kackley, the defendant’s “signature act” seems to be conduct that might occur in many sexual abuse scenarios. Similarly, the conduct in this case might be present in many sexual abuse scenarios. Nevertheless, the dissimilarities in this case are greater than those in Kackley. Dayhuff perpetrated all of the acts against S.A. when there was another adult in the room. On the other hand, no other people were present in the room when he committed the acts against H.D. Dayhuff told H.D. to keep the acts a secret or threatened H.D., while there is no evidence that he made similar statements to S.A. Further, Dayhuff points out that the act of placing or attempting to place the underage girls’ hands on his penis allegedly occurred in only one of the four prior incidents and in only one of the two incidents involving H.D. In Kackley, this type of conduct occurred in both incidents. Moreover, this case is different from Kackley, where the court found, as another reason for upholding the decision of the trial court, that the admission of the prior crimes evidence to show plan under K.S.A. 60-455 constituted harmless error. See 32 Kan. App. 2d at 932-33. Such a result cannot be reached in the instant case. As discussed later in this decision, the admission of the prior crimes evidence was not harmless under the facts of this case. Dayhuff cites State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶ 7, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003), where this court determined that the trial court’s admission of evidence under K.S.A. 60-455 to show plan was error. There, this court noted the following similarities between the defendant’s prior conduct and the crime charged: (1) all of the victims were related to the defendant by marriage and were under the age of 10; (2) some form of fondling to ejaculation was among the sex acts; (3) the abuse occurred in the absence of other adults; and (4) all of the victims were threatened. This court discounted the similarities, such as isolation of and threats toward the victim, that are present in nearly all child sexual abuse scenarios. The dissimilarities were that most of the charged acts did not match the prior conduct with the female victims and that the victims were different genders. This court concluded that “this case lacks the ‘striking’ similarities that have marked our precedents” and determined that the prior bad acts evidence should not have been admitted to show plan under K.S.A. 60-455. 31 Kan. App. 2d at 384. Here, as in Davidson, this case lacks the “striking” similarities present in previous cases. The similarities in this case, when compared with the dissimilarities, do not seem to rise to tire level of “strikingly similar” as in those cases cited in Jones; see Rucker, 267 Kan. at 826-29 (both victims were 5-year-old stepchildren abused until puberty, defendant applied lubricant and rubbed victims’ vaginal areas with his penis until ejaculation, defendant slapped victims if they protested, and defendant threatened to kill victims’ pets); Tiffany, 267 Kan. at 497-502 (defendant used similar words to entice victims into performing requested acts, victims were all about the same age, and criminal conduct was performed in same manner); Damewood, 245 Kan. at 679-82 (defendant arranged time alone with young teenage boys by soliciting their involvement in beekeeping operation and then sexually molesting them); Aldaba, 29 Kan. App. 2d at 189-92 (both victims were young boys when molested, defendant forced penis into victim’s mouth in both incidents, both incidents allegedly occurred when defendant stayed overnight in same residence with victim, and each victim threatened with bodily harm if abuse revealed). In each of those cases, there was a unique mode of operation or a “signature act” by the defendant that was so strikingly similar that the conduct could be recognized as the work of the defendant when it happened again in a later case. Here, there was no “signature act” or distinct mode of operation used by Dayhuff. Although all of the incidents were similar in that Dayhuff reached under the clothing of both underage girls and touched the outside of their vaginas, this conduct may be present in many sexual abuse scenarios. This conduct is not so “strikingly similar” as to be called a distinct mode of operation used in committing the crimes. Citing Clements, 252 Kan. at 90, the State asserts that the trial court needed to determine only that the offenses were “similar enough” in order to admit the evidence under K.S.A. 60-455 to show plan. Our Supreme Court has never clarified whether the standard is “signature act,” “strikingly similar,” or “similar enough” when determining whether the prior crimes evidence is relevant to show plan under K.S.A. 60-455. See Jones, 277 Kan. at 423. Nevertheless, since Clements our Supreme Court and this court have more recently applied the “strikingly similar” or the “signature act” standard when determining whether prior crimes evidence is relevant to show plan; see Rucker, 267 Kan. at 826-28; Tiffany, 267 Kan. at 500; Kackley, 32 Kan. App. 2d at 932; Davidson, 31 Kan. App. 2d at 381; and Aldaba, 29 Kan. App. 2d at 190. Our Supreme Court has never defined the term “simüar enough,” and Clements provides little guidance on the analysis for such a standard. Based on how our Supreme Court and this court have been treating the issue, a “strikingly similar” or a “signature act” analysis is the appropriate standard for this case. Because there was insufficient evidence presented in this case to show a distinct mode of operation that was “strikingly similar” or a “signature act,” we conclude that the trial court erred in admitting evidence of Dayhuff s prior crimes under the plan exception of K.S.A. 60-455. B. Harmless Error Our next step is to determine whether the admission of the prior crimes evidence to show plan under K.S.A. 60-455 constituted harmless error. Citing State v. Henry, 273 Kan. 608, Syl. ¶ 7, 44 P.3d 466 (2002), our Supreme Court in State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 (2004), set forth the harmless error rule as follows: “ ‘Normally, the admission or exclusion of evidence is measured by the harmless error rule. In determining if the erroneous admission or exclusion of evidence is harmless, the appellate court must consider if it is inconsistent with substantial justice, i.e., affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.’ ” In this case, the only evidence of the sexual abuse came from H.D.’s statements and testimony. Dayhuff testified at trial and denied the alleged acts. Thus, H.D.’s credibility was vitally important in securing a conviction against Dayhuff. The evidence of Dayhuff s prior crimes was a significant part of the State’s case. Several pages of closing argument were spent discussing the prior crimes and comparing those acts with the acts in the present case. Because the prior crimes evidence failed to meet the plan exception under K.S.A. 60-455, the admission of such evidence may have unfairly created the inference that Dayhuff had the propensity to commit the charged crimes. See Jones, 277 Kan. at 424. Based on the facts of this case, the prior crimes evidence was unduly prejudicial. Further, we are unable to conclude that the erroneous admission of such evidence had little, if any, likelihood of having changed the result of the trial. See 277 Kan. at 424. As a result, we reverse and remand for a new trial. III. Did the child advocate’s conduct violate Dayhuff s right to a fair trialP Next, Dayhuff argues that his right to a fair trial was violated because the child advocate’s gestures during H.D.’s testimony served to coach H.D. and vouch for H.D. in the eyes of the jury. Based on these actions, Dayhuff maintains that the trial court should have granted his motion for a mistrial during the trial or his motion for a new trial at sentencing. Citing In re Habeas Corpus Application of Pierpont, 271 Kan. 620, 24 P.3d 128 (2001), and State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996), Dayhuff asserts that the question of whether he was denied his right to a fair trial under the Due Process Clauses of the United States and Kansas Constitutions presents a question of law over which this court has unlimited review. Nevertheless, neither Anderson nor Pierpont involved the issue that is present here. Anderson concerned the trial court’s denial of the defendant’s motion to suppress evidence. Pierpont concerned the amount of process due an inmate in a prison disciplinary proceeding. The standards cited in Anderson and Pierpont do not apply here. Rather, the appropriate standard of review appears to be whether the trial court abused its discretion in failing to declare a mistrial or to grant a new trial. Recognizing that the declaration of a mistrial is within the trial court’s discretion, our Supreme Court in State v. Dixon, 279 Kan. 563, 592-93, 112 P.3d 883 (2005), stated: “The trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(l)(c). Declaration of a mistrial is a matter entrusted to the trial court’s discretion, and the decision will not be set aside on appeal unless an abuse of discretion is clearly shown. The defendant has the burden of proving that he or she was substantially prejudiced. [Citation omitted.]” Similarly, when reviewing the trial court’s decision of whether to grant a new trial, an appellate court is limited to determining whether the trial court abused its discretion. State v. Kirby, 272 Kan. 1170, 1192, 39 P.3d 1 (2002). With these standards firmly in mind, we turn now to the facts of the instant case. Immediately after H.D.’s testimony at trial, defense counsel moved for a mistrial on the basis that an individual in the courtroom had been nodding her head and making gestures to H.D. while she testified, essentially coaching H.D.’s testimony. Defense counsel informed the trial court that his secretary and another attorney in the courtroom, John Bullard, had witnessed the individual’s actions. The trial judge informed Dayhuff that there was no factual basis at that time for a decision to be made on his motion for mistrial: “Now you can make a record if you want to. We can go through all this on a motion for new trial, you can do anything you want but I’m saying right now at this time, there’s no factual basis for me to malee a decision like that.” Defense counsel proceeded to request a hearing where his secretary could testify about the individual’s actions in the courtroom. The prosecutor informed the trial court that he would also need to call as witnesses people who had been in the courtroom. Declining to address the motion for mistrial, the trial court stated: ‘We can take it all up on a, we’ll see how this thing plays out and it can all be sorted out in motions for new trial if there’s a conviction, if there’s a conviction. We don’t have the time to deal with this right now.” By declining to address Dayhuff s motion for a mistrial, the trial court denied Dayhuff an opportunity to develop a factual basis as to whether he was prejudiced by the individual’s actions in the courtroom. Our Supreme Court in State v. McNaught, 238 Kan. 567, 577, 713 P.2d 457 (1986), stated that “the trial judge is charged with the preservation of order in his court and with the duty to see that justice is not obstructed by any person or persons whatsoever.” Moreover, recognizing that a trial judge has the responsibility to see that the full truth is developed by the evidence, our Supreme Court in State v. Norwood, 217 Kan. 150, 152, 535 P.2d 996 (1975), stated: “A defendant in a criminal trial is entitled to a fair and impartial trial. . . . The purpose of a trial in a criminal case is to ascertain the truth or falsehood of the charges against the defendant, and it is a part of a duty of the trial judge to see that the full truth is developed by the evidence. [Citation omitted.]” Once Dayhuff brought it to the trial court’s attention that an individual had been gesturing to H.D. and possibly coaching her testimony, the trial court had the responsibility to initiate an investigation to ensure that H.D.’s testimony had not been influenced by the individual’s actions and that the jury had not been affected by the conduct. To illustrate, in Sharp v. Commonwealth, 849 S.W.2d 542 (Ky. 1993), the trial court conducted a hearing in chambers after the defendant moved for a mistrial on the basis that a courtroom bystander had been gesturing and signaling to a child witness during the child’s testimony. During the hearing, the bystander, a friend of the child’s family, admitted that she had been gesturing to the child witness to comfort and encourage the child during her testimony. In addition, the bystander admitted that she had told at least one sequestered witness about certain portions of the child’s testimony and had entered the room where these sequestered witnesses were waiting. At the hearing on the defendant’s motion for mistrial, the trial court questioned the bystander and potential witnesses who were sequestered in the witness room. Moreover, the trial court heard from the person who observed the bystander’s actions and also the child witness. The trial court then denied the defendant’s motion for a mistrial. Although the appellate court reversed the trial court’s decision, that portion of the opinion will be discussed in greater detail later. Here, no similar attempt was made by the trial court to determine to what extent the individual’s conduct had affected H.D.’s testimony and the jury. Dayhuff was not even allowed to present evidence concerning the individual’s identity or the lands of gestures she was making to the child witness. Although Dayhuff again' raised this issue in his motion for a new trial, the evidentiary hearing on his motion was held nearly 7 months after his trial. By this time, it was discovered that Katherine Adams, a child advocate who had worked with H.D. during the case, was the individual seen by Bullard and defense counsel’s secretaiy in the courtroom. Adams had also observed H.D.’s interview with Susan Beitzinger, where H.D. disclosed that Dayhuff had sexually abused her. At the evidentiary hearing on Dayhuff s motion for a new trial, defense counsel’s secretary testified that she saw a woman sitting in the back of the courtroom gesturing to H.D. during H.D.’s testimony. She testified that she saw the woman giving a thumbs up to H.D., smiling at H.D., nodding and shaking her head, and changing her position to maintain eye contact with H.D. Bullard testified that he saw the woman smiling, nodding her head, and changing her position to maintain eye contact. Nevertheless, he never saw the woman gesturing with her hands. Adams testified that during H.D.’s testimony, she smiled at H.D. and moved around the courtroom so that she would remain in H.D.’s sight. Adams indicated that she might have nodded to H.D. but denied gesturing to H.D. with her hands. Adams denied coaching H.D. or directing her testimony. Adams testified that she was present during H.D.’s testimony for support and encouragement. Adams stated that her job as a child advocate was to make sure the child was comfortable and to give the child a focal point so that the child could get through the testimony. At the end of the evidentiary hearing, the trial court ruled on numerous issues in Dayhuff s motion for a new trial. Nevertheless, the trial court never ruled on the present issue. Therefore, the trial court never exercised its discretion as to whether Adams’ conduct prejudiced Dayhuff. Moreover, there are no factual findings in the record that would resolve the conflicting testimony as to whether Adams actually gestured with her hands to H.D. At a minimum, we know that Adams moved around the courtroom to maintain eye contact with H.D. and that she smiled and nodded her head to support and to encourage H.D. The State attempts to compare this case to State v. Rowray, 18 Kan. App. 2d 772, 776-78, 860 P.2d 40, rev. denied 254 Kan. 1009 (1993), where this court held that the defendant’s right to a fair trial was not violated, nor did the trial court abuse its discretion when it allowed the mother of two child witnesses to sit behind them as they testified before the jury. Rowray, however, is distinguishable from the present case because the mother did not actively support and encourage the child witnesses during their testimony. In fact, Rowray seems to indicate that any prompting or gesturing to the witness could be problematic. After citing numerous cases from other jurisdictions, this court stated: “Although the wording of each opinion [cited from other jurisdictions] differs slightly, the common thread running through the holdings is that when the accompanying party does not speak, prompt the witness, or in any manner attempt to disrupt or influence the trial, the trial judge’s discretion is not abused in permitting an adult support person to be in close proximity to a minor while the minor testifies.” 18 Kan. App. 2d at 776. Because Adam’s actions involved more than sitting passively in close proximity to H.D., the holding in Rowray does not apply here. The conduct in this case is more similar to that in Sharp, 849 S.W.2d at 546-47, where the courtroom bystander admitted that she had mouthed “ ‘You’re doing fine’ ” to the child witness and that she gave approving gestures by winks and a thumbs-up sign. In Sharp, however, the trial court heard from the person who observed the bystander’s conduct. That person was convinced that the gestures told the child whether to answer yes or no to the questions and whether she approved of the child’s answers. In reversing the trial court’s denial of the defendant’s motion for a mistrial, the Kentucky Supreme Court stated: “The child victim on the witness stand was a crucial witness for the Commonwealth. Her demeanor during testimony and her ability to withstand cross-examination inevitably influenced the jury as to whether or to what extent she should be believed. Even taking Ms. Hess’s version of what she did at face value, the witness received encouragement, approval and comfort at the time her credibility was being assessed by the juiy. It would be impossible to say that the witness did not derive confidence and assurance from this positive reinforcement which influenced the jury to believe her.” 849 S.W.2d at 547. Concerning the bystander’s contact with the sequestered witnesses, the court stated that whether such conduct affected the trial can never be known because defense counsel never recalled the witnesses to the stand after learning that they had been told about portions of the child’s testimony. 849 S.W.2d at 547. The Court concluded by noting that a trial court has broad discretion to determine whether a violation of proper courtroom conduct requires a mistrial. Nevertheless, the violations in that case were “so egregious and inimical to the concept of a fair trial that they cannot be disregarded in the name of trial court discretion.” 849 S.W.2d at 547. Here, the record fails to show why the trial court did not take up Dayhuff s motion for mistrial and hold a hearing on whether the alleged improper acts influenced the juiy. It is undisputed that Adams moved around the courtroom, nodded, and smiled to H.D. during her testimony. Although the conduct falls short of the behavior in Sharp, Adams was actively supporting and encouraging H.D. at the time her credibility was being assessed by the jury. As in Sharp, “[i]t would be impossible to say that the witness did not derive confidence and assurance from this positive reinforcement which influenced the juiy to believe her.” 849 S.W.2d at 547. Moreover, “[tjhe trial court has an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment [to the United States Constitution], Wheat v. United States, 486 U.S. 153, 161, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988).” State v. Jenkins, 257 Kan. 1074, 1084, 898 P.2d 1121 (1995). The main problem in this case is that the trial court never allowed Dayhuff to develop a factual basis for his motion for mistrial at tire time of trial. Our Supreme Court in A. & N. Rld. Co. v. Wagner, 19 Kan. 335, Syl. ¶ 4 (1877), recognized that when a party to a lawsuit believes that a witness has been compelled to testify falsely against him, he may immediately call the court’s attention to the matter so that it can be investigated: “Where, after ail the testimony has been heard, but before the arguments have commenced, one of the parties ascertains or has good reason to believe that one of his adversary’s witnesses has been compelled by such adversary to testily falsely against him, he is not obliged to wait until after the verdict, and then seek a remedy for the wrong by a motion for a new trial, but may immediately call the attention of the court to the matter and have it investigated, and if true, the fact made known to the jury before retiring to consider of their verdict.” Here, Adams was intimately involved with the case and had heard H.D.’s statements about the alleged abuse. Moreover, Adams admitted that she encouraged and comforted H.D. by smiling, nodding, and moving around the courtroom so that she would remain in H.D.’s sight. Adams stated that she did these things to give the child a focal point so that the child could get through the testimony. If the trial court had allowed Dayhuff to proceed with his motion for mistrial, it could have determined to what extent, if any, Adams’ conduct had influenced H.D.’s testimony. The trial court could have asked H.D. about Adams’ actions. Moreover, the parties would have had the opportunity to present testimony from other courtroom bystanders who had seen Adams’ conduct. Nevertheless, the trial court refused to allow Dayhuff to proceed any further with his motion for mistrial even after Dayhuff requested to put his counsel’s secretary on the stand to develop the facts of what had occurred in the courtroom. The trial court’s actions were similar to a denial of a party’s request to make a proffer. A refusal by the trial court to permit the making of a proffer is usually error. See State v. Hodges, 241 Kan. 183, 191, 734 P.2d 1161 (1987). By forcing Dayhuff to take up this issue in a motion for a new trial that was heard nearly 7 months after the trial, the trial court denied Dayhuff the opportunity to show how he may have been prejudiced by Adams’ actions. Conducting a hearing nearly 7 months after trial is simply inadequate to investigate the matter as to how the child advocate’s conduct may have impacted the child’s testimony and affected the jury. Therefore, Dayhuff must be granted a new trial. TV. Was there cumulative error? Next, Dayhuff contends that cumulative trial error substantially prejudiced him and denied him a fair trial. “Multiple trial errors may require reversal of a defendant’s conviction if the cumulative effect of the errors substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found if the evidence against the defendant was overwhelming.” State v. Schoonover, 281 Kan. 453, Syl. ¶ 34, 133 P.3d 48 (2006). In the present case, the trial court erred in admitting evidence of Dayhuffs prior convictions under the plan exception of K.S.A. 60-455. In addition, the trial court erred in failing to allow Dayhuff to develop a factual basis to show how he was prejudiced by Adams’ conduct. Whether considered alone or in combination, the effect of these errors substantially prejudiced Dayhuff and denied him a fair trial. Because the evidence was not overwhelming in this case, these errors warrant reversal. Reversed and remanded.
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Malone, J.: The Commissioner of Juvenile Justice (commissioner) appeals the district court’s denial of the Kansas Juvenile Justice Authority’s (JJA) motion to modify the sentence of D.T.J., a juvenile offender placed in the commissioner’s custody pursuant to K.S.A. 38-1663 and K.S.A. 38-1664. JJA claims the district court erred by hmiting the amount of good time credit the commissioner can award to D.T.J. to 15%. A threshold issue is whether JJA had standing to file a motion to modify D.T.J.’s sentence and whether JJA has standing to bring this appeal. We conclude that standing exists under the facts and circumstances of this case. Concerning the merits of JJA’s claim, we conclude the district court lacked statutoiy authority to limit D.T.J.’s good time credit to 15%. Factual and procedural background On March 23, 2005, D.T.J., d.o.b. 11/01/88, was charged with two counts of aggravated robbery. The State filed a motion requesting permission to prosecute D.T.J. as an adult. After an evidentiary hearing, the district court denied the State’s motion, but designated the proceeding as an extended juvenile jurisdiction prosecution (EJJP) pursuant to K.S.A. 38-1636(i)(3). On July 14,2005, D.T.J. pled guilty to both counts of aggravated robbery, and the district court ordered a presentence investigation. At sentencing on September 8, 2005, the district court found that D.T.J. was a violent offender II as defined by K.S.A. 38-16,129(a)(1)(B), having been adjudicated a juvenile offender for an offense which if committed by an adult would constitute a nondrug severity level 1, 2, or 3 felony. Because the case was an EJJP, the district court imposed both a juvenile sentence and an adult criminal sentence. The district court ordered D.T.J. to be placed in the commissioner’s custody for direct commitment to a juvenile correctional facility until the age of 22 years, 6 months, followed by conditional release until D.T.J. reached 23 years of age. Noting the proceeding was an EJJP, the district court ordered that D.T.J. could not receive more than 15% good time credit on his juvenile sentence. The district court also sentenced D.T.J. pursuant to the Kansas Criminal Code. The district court imposed a sentence of 233 months’ imprisonment on Count 1 and 61 months’ imprisonment on Count 2, to be served concurrently. However, the district court stayed the adult criminal sentence as long as D.T.J. complied with all of the conditions of his juvenile sentence. On November 3, 2005, JJA, on the commissioner’s behalf, filed a motion to modify D.T.J.’s sentence, seeking to remove the district court’s 15% limitation on good time credit. The State filed a response to JJA’s motion and subsequently filed its own motion for the district court to deny JJA’s request, due to lack of standing since JJA was not a party to the action. After a hearing on January 6, 2006, the district court adopted the State’s response and denied JJA’s motion to modify D.T.J.’s sentence. Likewise, the district court granted the State’s motion to deny JJA’s request due to lack of standing. JJA timely appeals. Appellate jurisdiction At oral argument, the issue was raised whether this court has jurisdiction to hear JJA’s appeal. In district court, the State raised multiple arguments against JJA’s motion to modify D.T.J.’s sentence. One of the State’s arguments was that K.S.A. 38-16,130, which authorizes the commissioner to award good time credit, violates the separation of powers doctrine and is therefore unconstitutional. In the journal entiy denying JJA’s motion, the district court indicated that it “adopt[ed] the State’s response.” The parties have not furnished a transcript of the hearing or the district court’s ruling from the bench, and we have no record of the district court’s ruling other than the journal entry. Generally, an appeal from a final judgment of a district court in which a statute of this state has been held unconstitutional shall be taken directly to the Kansas Supreme Court. K.S.A. 60-2101(b); K.S.A. 38-1683(b) (procedure on appeal under the Kansas Juvenile Justice Code, K.S.A. 38-1601 et seq., shall be governed by article 21 of chapter 60 of the Kansas Statutes Annotated). Accordingly, the State argues that even if JJA has standing to bring this appeal, the appeal should have been taken directly to the Supreme Court. However, the State has never argued in district court or on appeal that K.S.A. 38-16,130 is unconstitutional on its face. The State only argues that the statute is unconstitutional, as applied by JJA, because it violates the separation of powers doctrine. In the journal entry denying JJA’s motion, the district court indicated that it “adopt[ed] the State’s response.” However, the district court did not expressly declare K.S.A. 38-16,130 to be unconstitutional, either on its face or as applied. Under these circumstances, we conclude the statutes of appellate jurisdiction do not require this appeal to be taken directly to the Kansas Supreme Court, and this court retains jurisdiction over JJA’s appeal. Standing A threshold issue is whether JJA had standing to file a motion to modify D.T.J.’s sentence concerning good time credit and, likewise, whether JJA has standing to bring this appeal. JJA contends it has standing because the commissioner has a personal stake in the district court’s decision to limit good time credit. JJA further contends it was authorized to request modification of D.T.J.’s sentence under K.S.A. 2005 Supp. 38-1665(c). The existence of standing is a question of law over which an appellate court’s scope of review is unlimited. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005). Additionally, “[t]he interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court’s interpretation. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Generally, standing is a question of whether a party has alleged such a personal stake in the outcome of a controversy as to warrant invocation of jurisdiction and to justify exercise of the court’s remedial powers on behalf of the party. A party must have a sufficient stake in tire outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy. Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996). The issue here is not whether a party has standing to initiate a lawsuit. Rather, the issue is whether JJA, who is not a party of record, has standing to intervene and challenge D.T.J.’s juvenile sentence concerning good time credit. Ordinarily, interested parties who are not parties of record do not have standing to take part in or control the proceedings. Here, JJA did not file a separate action to contest D.T.J.’s juvenile sentence, nor did D.T.J. join in the motion to modify his sentence. JJA’s motion to modify sentence concerned only the amount of good time credit the commissioner was authorized to award D.T.J. while he was in the commissioner’s custody. Good time credit for juvenile offenders is governed by K.S.A. 38-16,130, which provides: “On and after July 1, 1999: “(a) For purposes of determining release of a juvenile offender for an offense committed on or after July 1, 1999, a system shall be developed whereby good behavior by juvenile offenders is the expected norm and negative behavior will be punished. “(b) The commissioner of juvenile justice is hereby authorized to adopt rules and regulations to carry out the provisions of this section regarding good time calculations. Such rules and regulations shall provide circumstances upon which a juvenile offender may earn good time credits through participation in programs which may include, but not be limited to, education programs, work participation, treatment programs, vocational programs, activities and behavior modification. Such good tíme credits may also include the juvenile offender’s willingness to examine and confront the past behavior patterns that resulted in the commission of the juvenile’s offense. “(c) If the placement sentence established in K.S.A. 38-16,129, and amendments thereto, is used by the court, the juvenile offender shall serve no less than the minimum term authorized under the specific category of such placement sentence.” (Emphasis added.) K.S.A. 38-16,130 specifically provides that the commissioner, not the court, shall develop a system of good behavior for juvenile offenders and shall adopt rules and regulations concerning good time calculations. At oral argument, counsel for JJA announced the commissioner was in the process of developing such regulations. The only statutory Hmitation for good time credit is that the juvenile offender shall serve no less than the minimum term of the sentence. In D.T.J.’s case, his minimum commitment to the juvenile correctional facility is 24 months. K.S.A. 38-16,129(a)(1)(B). Here, the district court imposed a limit on D.T.J.’s good time credit, which is more restrictive than the limitation contained in the statute. It is clear the commissioner has a stake in the outcome of this controversy, which supports JJA’s claim of standing. Nevertheless, we must examine other statutes under the Kansas Juvenile Justice Code to determine if JJA had authority to file a motion to modify D.T.J.’s sentence. K.S.A. 38-1664 authorizes the district court to place a juvenile offender in the commissioner’s custody. This statute provides in part: “(b) When a juvenile offender has been placed in the custody of the commissioner, the commissioner shall notify the court in writing of the initial placement of the juvenile offender as soon as the placement has been accomplished. The court shall have no power to direct a specific placement by the commissioner, but may malee recommendations to the commissioner. The commissioner may place the juvenile offender in an institution operated by the commissioner, a youth residential facility or a community mental health center. If the court has recommended an out-of-home placement, the commissioner may not return the juvenile offender to tire home from which removed without first notifying the court of the plan. “(c) During the time a juvenile offender remains in the custody of the commissioner, die commissioner shall report to the court at least each six months as to the current living arrangement and social and mental development of the ju venile offender and document in writing the reasonable efforts that have been made and the progress made to finalize the permanency plan. “(d) If the juvenile offender is placed outside the juvenile offender’s home, a permanency hearing shall be held not more than 12 months after the juvenile offender is placed outside the juvenile offenders home and, if reintegration is a viable alternative, every 12 months thereafter. The court may appoint a guardian ad litem to represent the juvenile offender at the permanency hearing. Juvenile offenders who have been in extended out of home placement shall be provided a permanency hearing within 30 days of a request from the commissioner.” K.S.A. 38-1664 provides for the commissioner to play a role under the Kansas Juvenile Justice Code that the Secretary of the Kansas Department of Corrections (KDOC) does not play under the Kansas Criminal Code. When the district court places a juvenile offender in the commissioner s custody, the commissioner must notify the court of the juvenile offender s placement in any specific facility, and the commissioner must report to the court every 6 months as to the juvenile’s current living arrangement. The commissioner must notify the court before returning a juvenile offender to the home, and the commissioner may request a permanency hearing for a juvenile offender in an extended out-of-home placement. A district court’s sentence under the Kansas Juvenile Justice Code does not have the finality of a sentence under the Kansas Sentencing Guidelines Act, which generally cannot be modified except to correct arithmetical errors. K.S.A. 21-4721(i). K.S.A. 2005 Supp. 38-1665 addresses modification of a juvenile offender’s sentence. This statute provides in part: “(b) At any time after the entry of an order awarding custody of a juvenile offender to a person other tiran a parent, the court on its own motion, or the commissioner, the attorney for the juvenile offender or any party or parent may file a motion with the court for a rehearing on the issue of custody. . . . “(c) Any time within 60 days after a court has committed a juvenile offender to a juvenile correctional facility the court may modify the sentence and enter any other sentence, except that a child support order which has been registered under K.S.A. 38-16,119 and amendments thereto may only be modified pursuant to K.S.A. 38-16,119 and amendments thereto. “(d) Any time after a court has committed a juvenile offender to a juvenile correctional facility, the court may, upon motion by the commissioner, modify the sentence and enter any other sentence based on the medical condition of tire juvenile.” (Emphasis added.) K.S.A. 2005 Supp. 38-1665(b) expressly authorizes the commissioner to file a motion with the court for a rehearing on the issue of custody any time after the entry of an order awarding custody of a juvenile offender to a person other than a parent. Because JJA’s motion only concerned D.T.J.’s good time credit, JJA filed its motion under 38-1665(c). This subsection authorizes the district court to modify a sentence within 60 days after a juvenile offender has been committed to a juvenile correctional facility. However, 38-1665(c) does not specify the appropriate parties who may file a motion under that subsection. K.S.A. 2005 Supp. 38-1665(d) expressly authorizes the commissioner to file a motion to modify a juvenile offender’s sentence based upon a change in the juvenile’s medical condition. Furthermore, K.S.A. 38-16,131, which also addresses sentence modification, provides in part: “On and after July 1, 1999: “(a) The commissioner of juvenile justice may petition the court to modify the placement sentence established in K.S.A. 38-16,129, and amendments thereto, after a juvenile offender has served the minimum term indicated by the placement sentence, based upon program completion, positive behavior modification and progress made. “(b) If the court grants the modification, the sentence shall be shortened, and the term of aftercare that was pronounced at sentencing shall commence.” (Emphasis added.) It is clear from these statutes that in many instances, the commissioner is expressly authorized to file a motion with the district court for rehearing or sentence modification of a juvenile offender placed in the commissioner’s custody. This is consistent with the unique role the commissioner plays under the Kansas Juvenile Justice Code to rehabilitate the juvenile offender. The statutes do not expressly authorize the commissioner to file a motion to modify sentence concerning good time credit. However, it is illogical to conclude the commissioner lacks standing to file this specific motion, when the commissioner is expressly authorized to intervene on issues of custody generally. Good time credit impacts the length of time a juvenile offender is placed with the commissioner, and to this extent the amount of good time credit a juvenile offender can earn directly concerns the issue of custody. “In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Considering the statutes discussed herein in their entirety, we agree that JJA was authorized to file a motion to modify D.T.J.’s custody under either K.S.A. 2005 Supp. 38-1665(b) or (c). The commissioner has a stake in the district court’s decision to limit good time credit. We conclude that JJA had standing to file its motion to modify D.T.J.’s sentence. Likewise, we conclude JJA has standing to bring this appeal. This does not mean that JJA would have standing to challenge a district court’s sentencing order in every juvenile offender case. However, under the facts and circumstances of this case, we conclude JJA has standing to challenge the district court’s specific order concerning good time credit. Did the court err in limiting good time credit Turning to the merits of the case, the district court ordered D.T.J. committed to a juvenile correctional facility until he reached the age of 22 years, 6 months. Noting the juvenile proceeding was an EJJP, the district court ordered that D.T.J. could not receive more than 15% good time credit on his juvenile sentence. Specifically, the district court’s journal entry stated: “The Court imposes specific conditions for JJA. “1. On May 25, 2005, this Court designated the proceedings to be an Extended Juvenile Jurisdiction Prosecution (EJJP) .... These proceedings are therefore different than a normal direct commit of a juvenile offender. The Court in an EJJP retains sentencing authority under 38-16,126(b) and can, thus, impose conditions as to good time credit. “2. Based upon the forgoing, the Court ADJUDGES, ORDERS AND DECREES that respondent will receive no more than fifteen percent (15%) good time credit.” K.S.A. 38-1663 authorizes the district court to impose several sentencing alternatives for a juvenile offender. Furthermore, in an EJJP, the district court imposes both a juvenile sentence and an adult criminal sentence. K.S.A. 38-16,126(a). The adult criminal sentence is stayed unless the juvenile offender violates the provisions of the juvenile sentence. K.S.A. 38-16,126(a)(2). JJA contends neither K.S.A. 38-1663 nor K.S.A. 38-16,126 allows the district court to limit tire amount of good time credit a juvenile offender can earn. The interpretation of a statute is a question of law over which this court has unlimited review. Bryan, 281 Kan. at 159. “The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” 281 Kan. at 159. “ ‘ “In construing statues and determining legislative intent, several provisions of an act in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if possible.” [Citations omitted.]’ “ ‘As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. [Citations omitted.]’ ” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005). JJA correctly asserts that K.S.A. 38-1663 does not specifically authorize the district court to limit the amount of good time credit a juvenile offender can earn. The State contends D.T.J.’s case is “different” because it was designated as an EJJP. The State asserts the district court’s continuing jurisdiction under K.S.A. 38-16,126(b) allowed it to impose “specific conditions for JJA,” including a limitation on D.T.J.’s good time credit of 15%. However, the State does not provide any authority for this assertion. The district court’s only authority under 38-16,126(b) is to revoke the stay of the adult criminal sentence if the juvenile offender violates the provisions of the juvenile sentence. There is no provision in 38-16,126(b) that authorizes the district court to impose specific conditions of supervision for JJA, such as a limitation on the juvenile offender s good time credit. JJA asserts the legislature has given the commissioner the authority to implement a good time credit program under K.S.A. 38-16,130; therefore, the district court cannot override the commissioner s discretion in determining whether to grant or deny good time credit. JJA argues the situation is similar to the adult system in which the sentencing court cannot limit the good time credit awarded by the KDOC, except as provided by statute. Indeed, the Kansas Supreme Court has explicitly stated: “Good time credits are awarded by [KDOC] employees; the sentencing court plays no role in the process.” State v. Golston, 269 Kan. 345, 348, 7 P.3d 1132 (2000). Under both the Kansas Criminal Code and the Kansas Juvenile Justice Code, the legislature has authorized the respective authorities to develop a system for awarding good time credit. K.S.A. 2005 Supp. 21-4722(a)(2) (adult cases); K.S.A. 38-16,130 (juvenile cases). Likewise, in both types of cases, the legislature has expressed the purpose for developing such a system — to ensure that good behavior is the expected norm and negative behavior will be punished. K.S.A. 2005 Supp. 21-4722(a)(l); K.S.A. 38-16,130(a). Finally, the legislature has expressed maximum caps on the amount of good time credit adult or juvenile offenders can earn. K.S.A. 2005 Supp. 21-4722(a)(2) and K.S.A. 2005 Supp. 21-4706(a) (limiting the good time credit to 15% of the primary sentence authorized by law); K.S.A. 38-16,130(c) and K.S.A. 38-16,133 (limiting good time credit to an amount which does not reduce the minimum term of incarceration authorized by law for the offense committed). K.S.A. 38-16,130 specifically provides that the commissioner, not the court, shall develop a system of good behavior for juvenile offenders and shall adopt rules and regulations concerning good time calculations. The only statutory limitation for good time credit is that the juvenile offender shall serve no less than the minimum term of the sentence. In D.T.J.’s case, his minimum commitment to the juvenile correctional facility is 24 months. K.S.A. 38-16,129(a)(1)(B). However, the Kansas Juvenile Justice Code con tains no express provision limiting good time credit to 15%, as is found in the Kansas Criminal Code. Had the legislature intended to limit the amount of good time credit in a juvenile offender’s case to 15%, this could have easily been accomplished by statute. We agree with JJA that the district court lacked statutory authority to limit D.T.J.’s good time credit to 15%. The State claims K.S.A. 38-16,130, as applied by JJA, violates the separation of powers doctrine because it usurps the court’s power to impose sentences and therefore is unconstitutional. “The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the statute may be stricken down it must clearly appear the statute violates the constitution.” ’ ” State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006). “The doctrine of separation of powers is not expressly set forth in either the United States or Kansas Constitutions. However, it has long been recognized that the very structure of our three-branch system gives rise to the doctrine. [Citation omitted.] The Kansas Constitution creates three distinct and separate departments of government: the legislative, the executive, and the judicial. Kan. Const, art 1, 2, and 3. Only the legislative branch has the authority to define crimes and prescribe punishments, while only the judicial branch is empowered to determine whether an offense has been committed and to assess punishment. [Citation omitted.] The executive branch is vested with the power to enforce the laws. [Citation omitted.] “Early Kansas decisions attempted to apply the doctrine strictly and allow no overlapping of powers. However, recent decisions have modified the doctrine and taken a more pragmatic, flexible, and practical approach, recognizing that there may be a certain degree of ‘blending or admixture’ of the three powers of government and that absolute separation of powers is impossible. It is now a well-recognized fact that the powers of one branch may overlap with another branch’s powers. [Citation omitted.]” State v. Beard, 274 Kan. 181, 185-86, 49 P.3d 492 (2002). In Beard, the State attacked the constitutionality of K.S.A. 21-4603d(e) (now K.S.A. 2005 Supp. 21-4603d[l]), which authorizes the KDOC to malee a direct placement of an inmate to the Labette Correctional Conservation Camp, followed by supervision with community corrections even if this reduced the minimum term of incarceration ordered by the district court. In determining whether a usurpation of power existed, the court considered (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. 274 Kan. at 186. The court concluded the statute was not unconstitutional as a violation of the separation of powers doctrine. 274 Kan. at 193. In D.T.J.’s case, the inquiry is whether the commissioner’s authority to award good time credit pursuant to K.S.A. 38-16,130 usurps the district court’s power to impose sentences. We reach the same conclusion as the court reached in Beard. While the commissioner’s power to award good time credit may blend with the district court’s power to sentence a juvenile offender, the commissioner is not usurping the powers of the judicial branch by controlling the amount of good time credit a juvenile offender can earn. The commissioner’s power to award good time credit does not violate the separation of powers doctrine so as to render K.S.A. 38-16,130 unconstitutional. Finally, the State argues the district court’s hmitation of D.T.J.’s good time credit should be upheld as a matter of public policy. The State argues it is contrary to public policy to allow a juvenile offender’s good time credit to be as high as 40% when an adult’s good time credit under the criminal code is limited to 15%. Essentially, the State requests this court to override the legislature’s function of enacting laws in the public’s best interest. We decline the State’s request to establish public policy and suggest this argument is better left to the legislature to address. For all these reasons, we conclude the district court erred in limiting the amount of good time credit the commissioner can award to D.T.J. to 15%. D.T.J.’s case is remanded for resentencing without the hmitation on good time credit. Reversed and remanded.
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McAnany, J.: Kevin W. Bastían appeals the district court’s denial of his suppression motion which led to his convictions for possession of methamphetamine and possession of drug paraphernalia. The charges against Bastían arise from an incident in the early morning hours of September 2, 2003. Dallas Wedel, who was house-sitting for the owners of a ranch in Butler County, called the sheriff s department to report an unknown man who had parked a pickup truck under the deck of the house. The man was in the driver’s seat slumped over the wheel. The engine was off but the lights of the vehicle were on. Officer Brandon Stewart of the Butler County Sheriff s Department and Deputy Chief Todd Ball of the Rose Hill Police Department responded to the call. Ball arrived first and waited for Stewart’s arrival. When Stewart arrived and approached the vehicle, he saw the driver, Bastían, slumped over and “messing around in his feet area.” As a precaution Stewart drew his weapon since he could not see Bastian’s hands and did not know what Bastían was doing in the floorboard area. Stewart ordered Bastían out of the car and turned him over to Ball. Stewart then saw a syringe and an unspent cartridge designed for use in an automatic pistol. The syringe and cartridge were located in plain view on the center console of die pickup. The presence of the syringe led Stewart to believe that Bastían was either a diabetic or a narcotics user. He did not know which. The presence of the cartridge suggested that a gun might be nearby. Therefore, Stewart searched the pickup for a weapon and any illegal drugs while Ball secured Bastían and patted him down for a weapon. A weapon which could use the kind of cartridge Stewart found would be rather bullo/. Neither Ball nor Stewart found any weapon. The search of the pickup did not produce any drugs. When Stewart questioned Bastían about why he was on the property, it appeared that Bastían was under the influence of alcohol or drugs. Bastían was jittery and had a hard time standing without support. He said he had become tired while driving and had decided to pull over and get some sleep. Bastían thought he was in Utah. Stewart told Bastían he would have to submit to field sobriety testing. Before doing so, Stewart directed Bastían to empty his pockets. This was Stewart’s regular practice before patting down a suspect. Bastían removed several small bags from his pocket which were later determined to contain methamphetamine. Bastían was charged with possession of methamphetamine and possession of drug paraphernalia. The evidence to support the possession of methamphetamine charge came from the search of Bastian’s person after he was removed from the pickup. The evidence to support the possession of drug paraphernalia charge came from the syringe which was in plain view when Bastían got out of the pickup. Bastían moved to suppress the evidence obtained from the search of his vehicle and his person. Following a hearing, the district court denied the motion. The case ultimately was tried to the court on stipulated facts. Bastían was found guilty on both counts. The court imposed a $500 fine and a 20 months’ prison sentence, granted Bastían 12 months’ probation, and ordered 12 months of postrelease supervision for the possession of methamphetamine conviction. The court imposed a $300 fine and a concurrent sentence of 6 months in jail for the possession of drug paraphernalia conviction. The court also ordered Bastían to pay $400 in restitution to the KBI for lab fees, to reimburse BIDS for his court-appointed counsel, to pay the costs of the action, and to pay a probation fee. Bastían now appeals. He argues that the district court erred in not suppressing the evidence against him and in ordering him to pay fines and the BIDS fee. Preservation of Issue for Review The State first argues that since Bastían did not renew at trial his objection to the evidence obtained at the scene, he failed to preserve this issue for appeal. The contemporaneous objection rule is found in K.S.A. 60-404. In the context of this case, the purpose of the rule is to give the trial court the opportunity to revisit its prior ruling on the suppression motion before introduction of the evidence at trial. The rule has no application here. The same judge who heard the testimony at the suppression hearing presided over the bench trial. The judge was aware of the circumstances under which the State obtained the evidence and the defendant’s objections to it. The trial consisted of a submission to the court of stipulated facts, along with a transcript of the suppression hearing and the videotape of the arrest introduced at the suppression hearing. There was no trial in the traditional sense. No witnesses were called. No additional evidence was presented. There was no point during the proceedings when Bastian’s counsel had the opportunity to rise and announce, “We object!” No arguments of counsel were heard beyond those memorialized in the transcript of the suppression hearing. Bastian’s objections to the evidence were clearly expressed at the suppression hearing. In an nouncing its ruling, the court specifically referred to having considered die parties’ stipulation and the transcript of the suppression hearing. The court concluded: “I reread the transcript again last night and the Court has concluded that the defendant is guilty beyond a reasonable doubt.” Bastían has preserved the issue for appeal. The Detention of Bastían At the suppression hearing the State had the burden to prove that the search and seizure were lawful. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). In reviewing the district court’s denial of Bastian’s suppression motion, we review the district court’s ultimate legal conclusion de novo. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect against unreasonable searches and seizures of persons. As stated in State v. Morris, 276 Kan. 11, Syl. ¶ 5, 72 P.3d 570 (2003): “A seizure of a person occurs if there is the application of physical force or if there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority.” It is clear that Stewart’s seizure of Bastían occurred when Stewart approached Bastian’s pickup with his weapon drawn and ordered Bastían out of the pickup, and Bastían complied. The issue is whether Stewart had reasonable suspicion to detain Bastían at that point. In ruling on the suppression motion, the district court found that Stewart saw the syringe and the cartridge before ordering Bastían out of the pickup. In fact, Stewart testified that he saw these items only after ordering Bastían out of the pickup. Thus, while we normally defer to the trial court on issues of fact, we do not do so here because there was no substantial evidence to support this finding. See Ackward, 281 Kan. at 8. Since Bastían was detained when he complied with Stewart’s order that he get out of the car, the presence of the syringe and cartridge do not provide reasonable suspicion for that initial detention. The State asserts, however, that Stewart had reasonable suspicion to detain Bastían even before Stewart saw the syringe and die cartridge in the pickup. This assertion is well founded. In the middle of the night, Wedel discovered an unknown person parked in a pickup truck under the deck of the home he was caring for in rural Buder County. This was of sufficient concern for Wedel to call the sheriff s department. While Bastían points out that Wedel’s concern was for his welfare, since Bastían was slumped over the wheel of the pickup, the fact of the matter is that Wedel called law enforcement, not an ambulance or the local rescue unit. While it is also correct that Wedel did not report that Bastían had threatened him, Wedel was concerned about Bastian’s presence on private property and did not know if Bastían had permission to be there. And while Wedel did not report that Bastían had engaged in any criminal activity, Stewart had reasonable suspicion to detain Bastían based upon the belief that he was a trespasser or was about to commit a crime. Considering the totality of the circumstances, Stewart had reasonable suspicion to justify directing Bastían to get out of the pickup. See State v. Burks, 15 Kan. App. 2d 87, 89-90, 803 P.2d 587 (1990), rev. denied 248 Kan. 997 (1991). Once Stewart observed die unspent cartridge used as ammunition in an automatic pistol and Bastian’s apparent intoxicated condition, he had grounds to inquire further and search the vehicle. Stewart’s search of the vehicle yielded the syringe, which was in plain view. It is important to note that Bastían does not challenge the sufficiency of the evidence to support his conviction for possession of drug paraphernalia. Rather, he challenges the district court’s refusal to suppress the use of the syringe as evidence. The syringe was obtained in the search of die pickup. Since the search of the pickup was legal, Bastian’s conviction for possession of drug paraphernalia stands. On the other hand, if the court erred in admitting into evidence the methamphetamine taken from Bastian’s person, his conviction for possession of methamphetamine must be reversed. Therefore, we must now examine the search of Bastian’s person. The Search of Bastian’s Pockets Having ordered Bastían out of his pickup truck, Stewart directed Bastían to empty his pockets. This led to the discoveiy of contra band. The State seeks to justify this search under two theories: first, it was not a search at all but rather a voluntary disclosure by Bastían following Stewart’s request; and second, since Stewart could have lawfully searched Bastian’s pockets himself, asking Bastían to empty his own pockets was not improper. Upon examination, both of the State’s arguments fail. The State relies on State v. Bieker, 35 Kan. App. 2d 427, 132 P.3d 478 (2006), in contending that Bastian’s disclosure of the contents of his pockets was voluntary. Since the facts relating to this portion of Stewart’s investigation are not disputed, we may resolve the issue as a question of law. See State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). In Bieker, the officer requested a pat-down search of Bieker for weapons, and Bieker responded by emptying his pockets and revealing drugs. The officer had not drawn or displayed his weapon. The officer was dressed in ordinary street clothes but had shown Bieker his badge. There was no inference that the officer threatened Bieker or behaved in an intimidating manner. The court found that there was no evidence that the production of the items in Bieker’s pocket was other than the result of Bieker’s willingness to comply with the investigator’s request. The facts in Bieker stand in stark contrast to those now before us. Here, Bastían was ordered out of his vehicle at gunpoint in the middle of the night by two uniformed officers and detained by one while the other searched his pickup. While Stewart characterized Bastian’s response as voluntary, Stewart testified that if Bastían had refused to empty his pockets, Stewart would have emptied them himself. In order to avoid Fourth Amendment constraints, Bastian’s disclosure of the contents of his pockets, an analogue for a search by Stewart, must have been made voluntarily and without duress or coercion. See State v. Dwyer, 28 Kan. App. 2d 238, Syl. ¶ 3, 14 P.3d 1186 (2000), rev. denied 270 Kan. 900 (2001). Under these circumstances, a reasonable person would not feel free to ignore Stewart’s “request.” Bastian’s disclosure of the contents of his pockets was not a voluntary act, but an inevitable response to Stewart’s show of authority. With respect to the State’s second argument, that Stewart was justified in searching Bastian’s pockets himself but instead re quested that Bastían empty his own pockets, the State contends that Stewart’s request was justified because Stewart believed Bastían might be carrying a weapon. When Stewart saw the unspent cartridge in the pickup, he had a reasonable suspicion that Bastían was armed. During an investigative detention, if an officer reasonably suspects that personal safety requires it, the officer may frisk the seized person for firearms or other dangerous weapons. K.S.A. 22-2402(2). However, Bastían had already been patted down by Ball, “a capable and competent officer,” when Bastían first got out of the pickup. Further, the pat-down frisk for weapons authorized by K.S.A. 22-2402 is not the same as a search inside a suspect’s pockets. As stated in State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 3, 784 P.2d 381 (1989): “The initial frisk permitted under Terry and K.S.A. 22-2402 is limited to a ‘patdown’ search of the suspect’s outer clothing to determine the existence of concealed objects which might be used as weapons. An officer may not reach directly into a suspect’s pockets or outer clothing without first having conducted a patdown search, and the exclusionary rule must be applied to any evidence removed from the pockets of a suspect prior to a patdown search.” When Stewart directed Bastían to empty his pockets in anticipation of a second pat-down search, Stewart violated Bastian’s Fourth Amendment rights. He had no probable cause to search Bastian’s person beyond a pat-down frisk to search for weapons. Since all the evidence used to convict Bastían on the charge of possession of methamphetamine was obtained through this illegal search, the conviction on this charge must be reversed. The Imposition of a Fine and Restitution Bastían next argues that the district court erred in imposing fines against him because it failed to comply with the Kansas Sentencing Guidelines Act by not making any specific findings that a fine was warranted and by not taking Bastian’s financial resources into consideration. The State concedes that the district court failed to make the required findings. However, the State argues that Bastían failed to preserve this issue for appeal because he did not object at the time the fines were imposed. Generally, issues not raised below cannot be raised on appeal. State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). However, an exception applies when a newly asserted legal theory involves only a question of law arising on proved or admitted facts and is finally determinative of the issue. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). This exception applies here. Thus, we will consider the issue, but only those fines and fees related to the possession of drug paraphernalia conviction which has been affirmed. K.S.A. 21-4607(3) required the court to make specific findings and to take into consideration Bastian’s financial resources and the financial burden a fine would impose at the time it imposed fines against him. See State v. Edwards, 27 Kan. App. 2d 754, Syl. ¶ 7, 9 P.3d 568 (2000). The court imposed a $300 fine for the possession of drug paraphernalia conviction. The court did not make the requisite findings to support the $300 fine. Thus, this fine imposed on Bastían is vacated and the case is remanded for compliance with Edwards with respect to the imposition of a fine. Assessment of the BIDS Fee Bastían argues, and the State concedes, that the district court erred in failing to consider Bastian’s financial resources at the time it assessed the BIDS fees against him, as required by State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006). However, the State argues that Bastían did not preserve the issue for appeal. Once again, the issue is one of law arising on proved or admitted facts and is finally determinative of the issue. See Schroeder, 279 Kan. at 116. Consequently, we can consider it. The parties are well familiar with the ruling in Robinson which was announced after the district court sentenced Bastían. We must vacate the order for BIDS fees and remand the case to the district court for it to consider these financial impact issues discussed in Robinson. Further, tire district court should take into account the effect, if any, of Bastian’s conviction on only the possession of drug paraphernalia charge, since the possession of methamphetamine conviction has been reversed. Affirmed in part; reversed in part; orders regarding one fine and reimbursement of BIDS fees vacated; and case remanded for further proceedings consistent with this opinion.
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Green, J.: Eva Ayalla appeals from a summary judgment granted in favor of Southridge Presbyterian Church in Ayalla’s breach of contract claim. On appeal, Ayalla contends that the trial court erred in granting summary judgment because a genuine issue of material fact existed and because she entered into an enforceable contract with Southridge Presbyterian. We disagree, holding that any factual dispute was not material to Ayalla’s claim. We further determine that the statute of frauds bars Ayalla’s action. Accordingly, we affirm. Ayalla sued Southridge Presbyterian for breach of contract. Ayalla set forth the following allegations in support of her claim. Southridge Presbyterian, owner of a residential home, offered to sell it for the amount of $134,500. On April 25, 2005, Ayalla viewed the home. Ayalla made a written offer to purchase the home for $130,000 on April 26, 2005. The written offer was made on a residential real estate sale contract form furnished by Southridge Presbyterian’s real estate agent, Jim Henderson. Ayalla gave Henderson a check for $1,000 as an earnest money deposit. Henderson later negotiated the closing costs with Mike Pyper, Ayalla’s mortgage broker. On April 28, 2005, Henderson orally notified Pyper that South-ridge Presbyterian had accepted Ayalla’s offer. Pyper left a message with Ayalla’s nephew regarding Southridge Presbyterian’s acceptance. The following day, Henderson orally told Ayalla personally of Southridge Presbyterian’s acceptance. Henderson and Ayalla agreed to meet on May 1, 2005, to complete the paperwork, and Ayalla made plans to take that day off work. Based on Southridge Presbyterian’s oral acceptance, Ayalla scheduled a home inspection to take place on May 2 or 3. Ayalla and her friends and family gathered together on May 1 to celebrate. Before her scheduled meeting with Henderson, however, he called and told Ayalla that Southridge Presbyterian had accepted a higher offer of $142,500 from the Hamiltons. Ayalla alleged that this event caused anguish and monetary damages in the amount of $12,900. Ayalla’s damages calculation consisted of $12,500 for file loss of die benefit of her bargain, $200 for her lost wages on May 1, and $200 for her legal expenses. In her petition, Ayalla requested a preliminary injunction, specific performance of the contract, restitution based on Southridge Presbyterian’s unjust enrichment, monetary damages in the amount of $12,900, and other such relief the court deemed appropriate. Following the filing of Ayalla’s petition, Southridge Presbyterian moved to dismiss Ayalla’s action based on the statute of frauds. Ayalla alleged in her answer to Southridge Presbyterian’s motion to dismiss that the sale contract, which was prepared and signed by Henderson on behalf of Southridge Presbyterian, was a sufficient memorandum to satisfy the statute of frauds. Ayalla further alleged that Southridge Presbyterian engaged in fraud when it failed to disclose Ayalla’s accepted offer to the Hamiltons. The trial court denied the motion due to the existence of outstanding discovery. Following the completion of discovery, Southridge Presbyterian moved for summary judgment based on the statute of frauds. Ayalla argued at the summary judgment hearing that the sale contract containing Henderson’s signature satisfied the statute of frauds. Ayalla admitted that she never received a signed contract from Southridge Presbyterian but maintained that Henderson’s oral ac ceptance on behalf of Southridge Presbyterian was sufficient to render her written offer an enforceable agreement. The trial court granted Southridge Presbyterian’s motion, finding that no enforceable contract under the statute of frauds existed between the parties for the sale of the property. Did the trial court err in granting summary judgment in favor of Southridge PresbyterianP An appeal from a trial court’s grant of summary judgment is governed by the following standard: “ ‘ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005). “ ‘An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000). Statute of Frauds Ayalla asserts two main theories in support of her argument regarding the statute of frauds: (1) that an enforceable agreement existed between herself and Southridge Presbyterian based on Henderson’s oral acceptance of her written offer; and (2) that the sale contract, which was signed by Henderson, was sufficient to satisfy the statute of frauds. Southridge Presbyterian contends that no written agreement existed between itself and Ayalla for the sale of the real estate; therefore, the statute of frauds precludes relief. Enacted to prevent fraud and injustice, the statute of frauds requires that an enforceable contract for the sale of real estate be in writing and signed by the party against whom enforcement is sought. K.S.A. 33-106; Bank of Alton v. Tanaka, 247 Kan. 443, 452-53, 799 P.2d 1029 (1990). K.S.A. 33-106 provides the following: “No action shall be brought whereby to charge a party upon . . . any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.” Based on the statute of frauds, the trial court determined that no enforceable agreement existed between the parties. The court stated the following: “[T]here is no evidence of any contract ever signed by anyone on behalf of South-ridge Presbyterian Church to sell [Ayalla] that property. . . . [Henderson’s] signature did not say that Southridge Presbyterian was making any specific offer to [Ayalla] to sell the property. All it did was say that this form contract which is a pre-printed form is a form approved by the Kansas City Regional Association of Realtors and that Remax Realty who had printed up this document had not changed it from tire form contract that had been approved.” The trial court continued, “[t]he form [contract] was never signed by anyone representing Southridge Presbyterian. Accordingly[,] it has not been signed by the party against whom it is to be charged.” The first consideration is whether a genuine issue of material fact exists. Ayalla contends that triable issues of fact exist regarding whether the oral agreement between herself and Southridge Presbyterian is enforceable. Southridge Presbyterian asserts that the facts are undisputed. Because Southridge Presbyterian has asserted the defense of the statute of frauds, the only material fact is whether the parties’ alleged agreement was evidenced by a writing signed by Southridge Presbyterian. See K.S.A. 33-106. Ayalla admitted that Henderson’s signature on the sale contract did not evidence Southridge Presbyterian’s agreement to sell her the house. Moreover, Ayalla failed to show that Henderson was properly authorized by Southridge Presbyterian to act in the capacity of the seller. Further, Ayalla conceded that she did not receive a signed contract from South-ridge Presbyterian. As a result, the only material fact is not in dispute. Next, we turn to the question of whether Southridge Presbyterian was entitled to judgment as a matter of law. Because the issue of whether an alleged contract satisfies the statute of frauds involves the interpretation of a statute, this court’s review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). Citing Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996), Ayalla first asserts that the oral acceptance of a written offer satisfies the statute of frauds. In Van Dyke, however, the written offer was made and signed by the party to be charged. 326 Ark. at 742-43. Here, the written offer was made by Ayalla and was never signed by Southridge Presbyterian. The essential point in the trial court’s ruling was the absence of a memorandum signed by South-ridge Presbyterian as the party against whom Ayalla was seeking enforcement of the alleged oral agreement. As a result, Van Dyke does not support Ayalla’s position. Ayalla also argues that parties may bind themselves to an enforceable contract even though they contemplate the future execution of a formal instrument as evidence of their agreement. In support of this argument, she cites four cases: Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 512 P.2d 379 (1973) (involving a written agreement signed by an agent of the party to be charged); Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, Syl. ¶¶ 6, 7, 500 P.2d 39 (1972) (holding that an oral employment contract would not become enforceable until it was reduced to writing and signed by the parties); Middleton v. City of Emporia, 106 Kan. 107, 186 Pac. 981 (1920) (involving a contract bid submitted by the party to be charged); Willey v. Goulding, 99 Kan. 323, 161 Pac. 611 (1916) (involving a memorandum signed by the party to be charged). These cases do not aid Ayalla because they do not negate the requirement that an agreement for the sale of real estate must be evidenced by a writing signed by the party to be charged. See K.S.A. 33-106. Rather, the principle and cases simply indicate that under some circumstances, parties may bind themselves to an enforceable contract before they reduce their agreement to a formal instrument. See, e.g., Phillips & Easton Supply Co., Inc., 212 Kan. at 735. In two of the cases cited by Ayalla, this principle was applicable when the parties had created a signed memorandum of the agreement but contemplated the future creation of a more formal instrument. 212 Kan. at 731-32, 735; Willey, 99 Kan. at 325-26. In die third case cited by Ayalla, the statute of frauds was not applicable to the transaction. Middleton, 106 Kan. at 111. In the last case cited, the court held that the oral contract was not enforceable because it had not been reduced to a signed writing. Short, 210 Kan. 68, Syl. ¶¶ 6, 7. Ayalla next argues that the sale contract, signed by Henderson, was sufficient to satisfy tire statute of frauds. According to Ayalla, the sale contract satisfies the waiting requirement, and Henderson’s signature satisfies the requirement that the writing be signed by the party to be charged. The trial court correctly explained to Ayalla that Henderson’s signature on the sale contract did not satisfy the signature requirement of the statute of frauds. As the trial court noted, Henderson signed the sale contract in a box that was designed to certify the form as containing, without addition or deletion, the language approved by the Kansas City Regional Association of Realtors. Notably, Henderson signed the sale contract before he had even informed Southridge Presbyterian of Ayalla’s offer. Plenderson’s signature was not meant to be an acceptance of Ayalla’s offer but simply a certification that the form was an approved real estate contract form. Ayalla also argues in her brief that her actions indicate a contract was formed and cites Reznik v. McKee, Trustee, 216 Kan. 659, 673, 534 P.2d 243 (1975), for the principle that a court may determine the existence and terms of a contract based on a combination of written instruments and the parties’ actions in connection with the waitings. The trial court ruled that no enforceable agreement existed between Ayalla and Southridge Presbyterian because the signature requirement of the statute of frauds had not been satisfied. This argument by Ayalla, therefore, does not advance her position because it does not negate the absence of a writing signed by Southridge Presbyterian. Fraudulent Misrepresentation Ayalla contends that Southridge Presbyterian engaged in fraudulent misrepresentation and acted in bad faith by portraying her offer as a competing bid to the Hamiltons rather than as an accepted offer. Ayalla argues that Southridge Presbyterians actions violated the Kansas Consumer Protection Act, which prohibits suppliers from engaging in deceptive acts or practices in connection with consumer transactions. K.S.A. 50-626(a). Fraud must be established by clear and convincing evidence and is never presumed. An action for fraud requires the following elements: “an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or with reckless disregard for the truth, upon which another party justifiably relies and acts to his or her detriment.” Crandall v. Grbic, 36 Kan. App. 2d 179, Syl. ¶ 3, 138 P.3d 365 (2006). “[T]he existence of fraud is ordinarily a question of fact and [an appellate] court’s review is limited to determining whether the trial court’s findings are supported by substantial competent evidence. [Citation omitted.]” Stauth v. Brown, 241 Kan. 1, 8, 734 P.2d 1063 (1987). The trial court did not specifically refer to Ayalla’s allegation of fraud when ruling on Southridge Presbyterian’s motion for summaiy judgment. A review of the record, however, indicates that Ayalla’s claim is fatally flawed for two reasons. First, although Ayalla mentions fraud in her answer to Southridge Presbyterian’s motion to dismiss, she failed to assert a claim of fraud as a separate theory of recovery in her petition filed with the trial court. Notwithstanding the liberality of the Kansas Rules of Civil Procedure, they require certain matters to be set forth with particularity. Fraud is one of them. K.S.A. 60-209(b). The circumstances constituting fraud or mistake shall be stated with particularity. Second, Ayalla seems to be attempting to assert a cause of action for Southridge Presbyterian’s alleged fraud perpetrated upon the actual buyers of the house. Ayalla’s claim is that it was fraudulent for Southridge Presbyterian to portray her offer as a competing bid to the Hamiltons rather than as an accepted offer. This alleged misrepresentation was made to the Hamiltons, not to Ayalla; therefore, Ayalla could not have relied on the misrepresentation. Because Ayalla could not have relied on the alleged misrepresentation, she cannot state a cause of action for fraud. Crandall, 36 Kan. App. 2d 179, Syl. ¶ 3. In addition, because Southridge Presbyterian did not enter into an enforceable agreement with Ayalla, it was not fraudulent for Southridge Presbyterian to portray Ayalla’s offer as a competing bid. Equitable Relief Citing Cooper v. RE-MAX Wyandotte County Real Estate, Inc., 241 Kan. 281, 291, 736 P.2d 900 (1987), Southridge Presbyterian contends that Ayalla is not entitled to equitable relief, although Ayalla has not specifically asserted a claim for equitable relief. Southridge Presbyterian argues that the doctrine of promissory estoppel does not require enforcement of the oral agreement because no relationship of trust or confidence existed between the parties and it did not misrepresent the existing facts to Ayalla. The trial court explained to Ayalla that she was not entitled to equitable relief: “[T]here was no large investment made by you during the time period that you allege transpired between your orally being told the contract had been accepted and your orally being told that tire property had been sold to someone else. So there is not a gross injustice that would result according to any evidence that you have supplied under the rules for considering a summary judgment motion in Kansas.” Despite the writing requirement for the sale of real estate, equity sometimes justifies the enforcement of a real estate contract that violates the statute of frauds. When one party relies on an oral agreement to his or her detriment and gross injustice would result if the agreement is not enforced, an oral contract may be removed from the statute of frauds. Tanaka, 247 Kan. at 452; see also Cooper, 241 Kan. at 291 (explaining that a real estate contract that is unenforceable based on the statute of frauds may be specifically enforced when the party seeking enforcement so changed her po sition in reasonable reliance on the contract that “injustice can be avoided only by specific enforcement”). In the absence of compelling equitable considerations, however, an oral agreement for the sale of real estate is unenforceable under the statute of frauds. Tanaka, 247 Kan. at 453. Part performance is considered a compelling equitable consideration that may justify removal of an oral contract from the operation of the statute of frauds. Part performance often involves the delivery of possession of the real estate to the purchaser and improvement of the real estate by the purchaser. Part performance wifl only remove the statute of frauds as a defense to an oral contract when the performing party cannot be adequately compensated with money. 247 Kan. at 453. The doctrine of promissory estoppel may be invoked to enforce an oral agreement when the evidence demonstrates the following: “(1) The promisor reasonably expected the promisee to act in reliance on the promise, (2) the promisee acted as could reasonably be expected in relying on the promise, and (3) a refusal of the court to enforce the promise would sanction the perpetration of fraud or result in other injustice. [Citation omitted.]” Templeton v. Kansas Parole Board, 27 Kan. App. 2d 471, 474-75, 6 P.3d 910 (2000). In her petition, Ayalla suggests part performance justifies removal of the alleged contract from the operation of the statute of frauds. Ayalla does not expressly argue that the doctrines of promissory estoppel or part performance are applicable to her case on appeal. An issue not briefed by the appellant is deemed waived or abandoned. McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146 (2005). Even if Ayalla were attempting to assert a claim for equitable relief, the doctrines of promissoiy estoppel and part performance were not applicable to her case. Ayalla did not take possession of or make improvements to the real estate. Nor did Ayalla specify any similar type of part performance. Therefore, the doctrine of part performance was not applicable. Ayalla similarly cannot satisfy the requirements of promissory estoppel because her reliance on Henderson’s oral acceptance was not reasonable. Ayalla had not received written confirmation of Southridge Presbyterian’s commitment to selling her the house. Ayalla stated that “[m]ost persons know when buying a house a tangible document is always necessary to proceed with your mortgage loan.” This statement indicates that Ayalla realized she would need a signed writing from Southridge Presbyterian before she would be able to buy the home. In summary, Ayalla has not demonstrated that a gross injustice will result if the alleged agreement is not specifically enforced. Equity does not require enforcement of the alleged oral contract in this case. Should this court assess costs and attorney fees against Ayalla? Under Supreme Court Rule 7.07(c) (2006 Kan. Ct. R. Annot. 57), Southridge Presbyterian requests that this court impose sanctions against Ayalla for pursuing this appeal. According to South-ridge Presbyterian, Ayalla’s appeal is frivolous and without factual or legal support. Noting that Ayalla has filed a suit against Henderson, Southridge Presbyterian believes sanctions are necessary to deter Ayalla from pursuing additional baseless suits in the future. Southridge Presbyterian asserts that it incurred attorney fees of $3,180 and a reproduction cost of $85.50 for its brief. Supreme Court Rule 7.07(c) provides in relevant part the following: “If the appellate court finds that an appeal has been taken frivolously, or only for purposes of harassment or delay, it may assess against an appellant . . . the cost of reproduction of the appellee’s brief and a reasonable attorney fee for the appellee’s counsel.” The record does not indicate that Ayalla pursued this appeal frivolously or for the purposes of harassment or delay. Ayalla is a pro se appellant. The record indicates that Ayalla has attempted to familiarize herself with the relevant legal principles, and she has cited cases that she argues support her position. In addition, the trial court invited Ayalla to pursue her case in the appellate courts, specifically stating that “[tjhere are appellate courts in our state. You are welcome to present the issue to them and see if they believe that I am wrong on the law.” For these reasons, sanctions are not appropriate in this case. Affirmed.
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Hill, J.: This case was previously remanded to the district court to determine whether Casner could file an untimely appeal as per mitted in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). It now returns to us because that court said he could so appeal. Both parties appeal. The State contends in its cross-appeal that the court erred in granting Ortiz relief. Meanwhile, in Casner’s appeal, he argues that he is entitled to sentencing relief, citing State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), for authority. We dismiss the State’s cross-appeal for lack of jurisdiction and uphold Casner’s appeal and remand the case for a new sentence. Background Facts and Prior Proceedings Gary Casner entered into a plea agreement where he pled guilty to one count of attempting to manufacture methamphetamine in violation of K.S.A. 65-4159. In exchange, the State dismissed all remaining charges and recommended a downward durational departure sentence of 120 months’ imprisonment. On August 21, 2001, the district court imposed the negotiated sentence. Casner did not appeal. Beginning in February 2004 Casner sought relief from his sentence by filing a series of three motions. First, he filed a pro se K.S.A. 60-1507 motion to correct his illegal sentence, claiming McAdam for authority. This motion was followed in March 2004 with a motion to correct illegal sentence, contending that the district court should have sentenced him under K.S.A. 65-4161(a), for a severity level 3 drug felony, instead of under K.S.A. 65-4159(a), a severity level 1 drug felony. Finally, in July 2004 Casner asked to withdraw his guilty plea. At a hearing on these motions, the State submitted the deposition of Casner’s trial counsel. Casner’s trial counsel could not recall discussing with Casner the legal defense that a severity level 1 crime of manufacturing, under K.S.A. 65-4159, could be sentenced as a severity level 3 crime of compounding a chemical, under K.S.A. 65-4161, but stated that it was his practice to discuss the consequences of entering into a plea, which included waiving legal defenses. Casner testified at the hearing and confirmed that he had read tire plea agreement prior to signing it, but that his trial counsel failed to discuss with him any legal or factual defenses. Casner further commented that if he had been advised of the possibility of being sentenced at a severity level 3 crime, he would not have agreed to the 120-month downward durational departure sentence. Nonetheless, Casner conceded that he understood that by entering into the plea agreement, the State would dismiss the remaining charges, forego filing an additional charge of aggravated failure to appear, and agree to a reduction in his sentence. Ruling on these matters in January 2005, the district court denied Casner s motion under K.S.A. 60-1507, ruling that the McAdam holding cannot be applied retroactively in a collateral attack on a sentence imposed in accordance with a favorable plea agreement. Next, the court denied Casner s motion to withdraw his plea on the basis that no manifest injustice would occur in holding the defendant to the consequences of his plea. Casner appealed both decisions. We remanded the case to the district court to decide whether case law exceptions to the requirement of a timely filed notice of appeal applied here. On remand, the district court held a hearing to determine whether Casner met one of the exceptions to an untimely appeal as described in Ortiz. At the hearing, Casner s trial counsel could not recall whether he discussed with Casner his right to appeal or whether he contacted Casner during the 10 days after sentencing. In addition, Casner testified that his attempts to contact his counsel after sentencing were unsuccessful. Casner stated that during the plea agreement discussions, his counsel had advised him that he could not appeal once he signed the plea agreement. After hearing both sides, the district court questioned whether evidence existed demonstrating that the sentencing judge had advised Casner of his right to appeal. Casner responded that the district court would have the transcript if the sentencing judge informed Casner of his appellate rights. The State, however, asserted that the burden was on the defendant to provide such evidence, but according to its records the State also did not possess a copy of the transcript. Relying upon the evidence presented at the hearing, the district court ruled that Casner s appeal qualified under one of the Ortiz exceptions for the reason that Casner’s trial counsel failed to advise him of his right to appeal. Soon after, Cas ner filed his notice of appeal for his direct appeal of his methamphetamine conviction. The State asked the court to reconsider its ruling, claiming the sentencing transcript revealed that the judge had informed Casner of his right to appeal within 10 days of the sentencing proceeding. The district court conducted a hearing to review the State’s motion to reconsider. Although it noted that it wished it had the sentencing transcript at the Ortiz hearing, the district court denied the State’s motion, claiming that it lacked jurisdiction because the case had already been transferred back to the court of appeals. The State cross-appealed the district court’s decision granting the Ortiz hearing. We consolidated both appeals into this case for argument. We deal with the State’s appeal first and then focus on Casner’s. Can the State appeal an Ortiz ruling? The only authority the State claims for its cross-appeal is K.S.A. 2006 Supp. 22-3602(b)(2), which states: “b) Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others: ... (2) from an order arresting judgment.” (Emphasis added.) Only two statutes refer to an arrest of judgment. First, K.S.A. 22-3502 states: “The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged.” Second, if no motion for arrest of judgment is filed, K.S.A. 22-3503 provides: “Whenever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained, if filed, the court may arrest the judgment without motion.” Clearly, no motion to arrest judgment was filed in this case. Furthermore, there is no evidence that demonstrates the State’s complaint was defective or that the district court lacked jurisdiction over the case. Consequently, as defined by K.S.A. 22-3502, the district court’s order granting Casner’s appeal out of time under Ortiz cannot be construed as an arrest of judgment. Pressing further, the State argues that since no reference to K.S.A. 22-3502 appears in K.S.A. 2006 Supp. 22-3602(b)(2), we should not limit an order arresting judgment to the two statutes listed above. Instead, the State claims that its cross-appeal still qualifies as an order arresting judgment under a creative but flawed estoppel theory: “In light of the Court’s determination in [McAdam], the courts have made it clear that a defendant should be subjected to a lesser penalty when two statutes are similar and one has a lesser penalty attached to it. McAdam, 277 Kan. at 146-47. When it is determined that a person who has been sentenced pursuant to a ID felony for Manufacture or Attempt to Manufacture Methamphetamine and that such a person should be subjected to the level 3D sentence for Compounding a Chemical pursuant to K.S.A. 65-4161, the original sentence has essentially been estopped. The State in the present case filed an appeal pursuant to K.S.A. 22-3602(b)(2) because when the District Court erroneously determined [Casner] met an exception under Ortiz, based in part on [Casner’s] counsel’s misstatements to the District Court Judge. [Casner] is now essentially assured the application of a sentence reduction in his case. The judgment entered originally by the District Court against [Casner] has been estopped, and thus “arrested.” [Casner] is no longer subject to that original sentence.” (Emphasis added.) We note that the State fails to cite any authority to support this rationale. Our courts have never broadly construed an order arresting judgment to encompass any order. See State v. Woodling, 264 Kan. 684, 686-87, 957 P.2d 398 (1998) (finding that an order allowing withdrawal of a plea and dismissing the case was not an order arresting judgment); State v. Unruh, 259 Kan. 822, 824-25, 915 P.2d 744 (1996) (holding that a district court’s order vacating a plea because there was an insufficient factual basis for the acceptance of that plea was not an order arresting judgment); State v. Puckett, 227 Kan. 911, 912, 610 P.2d 637 (1980) (confining the definition of “arrest of judgment” to K.S.A. 22-3502 and, therefore, dismissing the State’s appeal because the order permitting the defendant to withdraw his nolo contendere pleas and setting the matter for jury trial was not an arrest of judgment). Contrary to the State’s contention, a judgment that has been “estopped” is not the same as a judgment that has been arrested. To begin, to estop is defined as “to bar or prevent by estoppel.” Estoppel by judgment is also known as collateral estoppel, which'prevents the relitigation of issues conclusively determined in an earlier action.” State v. Day, 17 Kan. App. 2d 737, 738, 843 P.2d 294 (1992), rev. denied 252 Kan. 1093 (1993); Black Law’s Dictionary 589 (8th ed. 2004). On the other hand, it is fundamental that “an arrest of judgment [under common law] was the technical term describing the act of a trial judge refusing to enter a judgment on the verdict because of an error appearing on the face of the record that rendered the judgment invalid.” United States v. Sisson, 399 U.S. 267, 280-81, 26 L. Ed. 2d 608, 90 S. Ct. 2117 (1970). In addition, Congress has preserved the common-law rule in Fed. R. Crim. Proc. 34 that judgments can be arrested only for errors apparent on the record. Sisson, 399 U.S. at 280-82. Fed. R. Crim. Proc. 34 contains language similar to the two grounds expressed in K.S.A. 22-3502. It follows that the common-law term “arrest of judgment” has also been statutorily preserved in Kansas within the two grounds described in K.S.A. 22-3502. We hold that an arrest of judgment order as contemplated in K.S.A. 2006 Supp. 22-3602(b)(2) is limited to the definition of an arrest judgment found in K.S.A. 22-3502. Therefore, the district court’s order finding an Ortiz exception in this case does not qualify as an order arresting judgment. The State cannot appeal. Additional Grounds for Appeal The State also requests this court to consider K.S.A. 2006 Supp. 22-3602(b)(3) for jurisdictional support of its cross-appeal but concedes its error in failing to include this statutoiy ground in its notice of appeal. “ 'Grounds for jurisdiction not identified in a notice of appeal may not be considered by the court.’ [Citation omitted.]” State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). We decline the State’s request to consider the applicability of K.S.A. 2006 Supp. 22-3602(b)(3) as a ground for its cross-appeal. Ortiz and “Fundamental Fairness” Despite the State’s inability to qualify its cross-appeal under K.S.A. 2006 Supp. 22-3602(b)(2), the State requests this court to review the merits of its cross-appeal under the notion of funda mental fairness. Essentially the State argues that if there is an exception for the defendant, there should be an exception for the State. The State contends that it is fundamentally unfair that this court address the merits of Casner’s untimely appeal since the sentencing transcript demonstrated that Casner was informed of his right to appeal at the sentencing hearing and Casner failed to submit such evidence at the Ortiz hearing. Casner disputes the State’s argument, claiming that this court is required to dismiss the State’s cross-appeal because K.S.A. 2006 Supp. 22-3602(b) does not include “fundamental fairness” as a ground for appeal. Appellate courts have only such jurisdiction as is provided by law. Verge, 272 Kan. at 521. K.S.A. 2006 Supp. 22-3602(b) specifically enumerates four instances, and no others, in which the State may appeal a district court decision: “(1) From an order dismissing a complaint, information or indictment; (2) from an order arresting judgment; (3) upon a question reserved by the prosecution; or (4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993.” Therefore, since K.S.A. 2006 Supp. 22-3602(b) is explicit in limiting what grounds the State can raise on appeal and that statute does not include “fundamental fairness,” this court does not have jurisdiction to hear the State’s cross-appeal, and it is dismissed. Does this court have jurisdiction to consider Casner s direct appealP We remanded this case to district court to determine whether any Ortiz exceptions applied that would allow Casner to directly appeal his sentence. “The facts underlying an Ortiz exception ruling should be examined on appeal under a substantial competent evidence standard of review. The ultimate legal determination whether those facts fit the exception should be reviewed under a de novo standard.” State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005). The filing of a timely notice of appeal is jurisdictional, and if the appeal is not taken within the 10-day period fixed by K.S.A. 22-3608(c), it must be dismissed. “A limited exception to the general rule requiring a timely appeal from sentencing is recognized in the interest of fundamental fairness only in those cases where an indigent defendant was either: (1) not informed of the rights to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal.” 280 Kan. at 401 (citing Ortiz, 230 Kan. at 735-36). At the Ortiz hearing, both Casner’s trial counsel and Casner testified that Casner was not specifically advised of his rights to appeal. Furthermore, although die district court questioned whedier the sentencing judge may have informed Casner of his right to appeal, both parties could not produce the transcript to show otherwise. Based on these responses, the district court held that the first Ortiz exception applied because the evidence demonstrated that Casner was not advised of his right to an appeal. The sentencing transcript does not demonstrate that Casner was fully advised of his right to appeal. The statute, K.S.A. 22-3424(f), requires the court to inform the defendant of his or her right to appeal: “After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant’s right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis.” Although the language of K.S.A. 22-3424(f) pertains only to defendants who have “gone to trial on a plea of not guilty,” courts have interpreted it broadly to refer to all defendants. State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079 (1998) (“ The purpose of K.S.A. 22-3424[f] logically is the same as that of the federal rule [then Fed. R. Grim. Proc. 32(a)(2)]: “[T]o insure that all defendants who might wish to appeal are fully aware of their appeal rights.” ’ [Citations omitted.]”). Here, the transcript demonstrates that the sentencing judge advised Casner’s trial counsel in Casner’s presence that “Counsel, if you disagree with what the Court has done today, you may appeal it within 10 days.” Omitted from this statement is information regarding Casner’s right to an attorney for áppeal purposes. Therefore, contrary to the State’s assertion, tire sentencing transcript does not prove that Casner was informed fully of his right to appeal his sentence. Accordingly, the evidence demonstrates that Casner meets the first exception under Ortiz that he was not informed of his right to appeal, and this court has jurisdiction to address Casner’s direct appeal. Should Casner receive a new sentence? In McAdam, our Supreme Court held that K.S.A. 65-4161(a) (compounding methamphetamine) and K.S.A. 65-4159(a) (manufacturing or attempting to manufacture methamphetamine) are identical. 277 Kan. at 145. Therefore, a defendant can only be sentenced under the lesser penalty provided in K.S.A. 65-4161(a), even in cases where the sentencing resulted from favorable plea agreements. State v. Barnes, 278 Kan. 121, 127-28, 92 P.3d 578 (2004); McAdam, 277 Kan. at 145-46. Furthermore, Barnes determined that McAdam applied to all cases that were on direct appeal at the time McAdam was decided, which, under Phinney, included direct appeals filed out of time that satisfy the exceptions stated in Ortiz. Phinney, 280 Kan. at 407; Barnes, 278 Kan. at 129. Accordingly, since Casner s direct appeal of his sentencing is properly before our court under an Ortiz exception and since the district court sentenced Casner under the greater penalty, we vacate Casner s sentence and remand for a new sentence consistent with the ruling in McAdam. Sentence vacated and case remanded for new sentence; cross-appeal dismissed.
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Pierron, J.: Shane Lee Stout appeals his conviction by a jury of involuntary manslaughter and aggravated burglary. He challenges the sufficiency of the evidence supporting his convictions and contends that his criminal histoiy must be proved to a jury beyond a reasonable doubt. We affirm. Nick Maruska provided the testimony impheating Stout in this case. On October 2, 2002, Maruska got a 12 pack of beer and headed to Stout’s house in the middle of the afternoon. Over the next several hours, Stout and Maruska drank the 12 pack of beer, were well into an additional case of beer, and smoked marijuana. During their conversation, Stout told Maruska that he had a problem with someone. Maruska replied that he would beat someone up if needed. Stout and Maruska left the residence afoot on their way to a birthday party for Stout’s brother. They continued to discuss the possibility of a physical confrontation. Maruska told Stout he would back him up if needed. Stout allegedly said he would compensate Maruska with marijuana for his assistance. Stout also told Maruska if something went wrong at the confrontation, they should say they were looking for a job. Stout and Maruska arrived at John Adams’ house. Adams was a foreman for a oil drilling company and had been Stout’s supervisor. Stout had worked for the oil company for about 6 months before being laid off for missing 3 days of work. Stout’s mother, Theresa Stout, testified that Stout and Adams had a prior confrontation over Stout’s dog barking too much and that a fight had ensued. Earl Adams, Adams’ brother, lived in the apartment below Adams. Earl testified that on the night in question, Stout and Maruska knocked on his door and asked if Adams was home. Stout said he wanted to talk to Adams about their previous fight and wanted to get things all straightened out between them. Earl told the two drat Adams was not home because Earl wanted to avoid any confrontation. Maruska testified he and Stout went upstairs to Adams’ apartment anyway. Stout knocked on the door. Adams and Stout cussed at each other through the door. Adams told Stout to “go the fuck away.” Stout told Maruska to “go ahead” and “do what you’re going to do.” Maruska kicked in the door. Maruska and Stout went into the apartment. Inside the apartment, Maruska and Adams got into a fight and exchanged punches. Maruska testified that Adams pulled a 12-inch bowie knife and began swinging it at him. Maruska pulled out a pocketknife he carried at his side, and the two engaged in a knife fight during which they stabbed each other. Maruska charged Adams and was able to push him into a window, breaking the window. When Maruska turned around to leave, Adams pulled out a double-barreled 12 gauge shotgun. Maruska rushed Adams again and wrestled him to the ground. Maruska testified that he was on top of Adams as they wrestled for the shotgun and Stout was standing on the couch kicking Adams and sometimes kicking Maruska. Maruska testified that he heard the shotgun go off. He was not sure whether he was hit by that shot, but they continued to wrestle over the gun. Maruska heard a second shot. Maruska tried to get up to leave, but he realized he had been shot in the left leg. He said he tried to crawl out of the apartment and yell for help. The next thing Maruska remembered was the presence of a paramedic and the police. Maruska was hospitalized and had surgery on his leg. Earl Adams testified he heard noises coming from upstairs that sounded like someone moving a table across the floor, but that he did not think anything of it. A short time later he heard someone running and then his brother yelling to call 911. He got out of bed and walked around the front porch to where Adams’ door lead upstairs. Adams was sitting in a chair with his arm half blown off. Earl called 911 and told dispatch they needed two ambulances because Adams said there was a kid upstairs that would need help as well. Adams told the paramedics that he had shot himself in the arm. Stout ran back to his house. Theresa testified that Stout was soaked from rain and had blood all over the front of his shirt. She had Stout take off his clothes and she put them in the clothes washer. Detectives later came to Stout’s house and he was taken to the police station for questioning. Stout told Detective Kurt Weber that after he and Maruska had knocked on Adams’ door, he started to leave because Adams was not home. When he was halfway down the stairs, he heard a commotion in Adams’ apartment and realized Adams and Maruska were fighting. While on the stairs, Stout said he heard two shots. He then he ran into the apartment, which explained why his hat was found in Adams’ apartment. Stout tried to pick up Maruska and cany him out. Maruska had been shot in the leg, and Stout was unable to move him. Stout told Detective Weber that he did not touch Adams in any way and that Maruska was lying as to Stout’s involvement in the fight. Stout also confirmed that he had a previous fight with Adams over Stout’s dog. Adams was admitted to the hospital on October 2, 2002, but he later died on October 26, 2002. Adams’ left arm had to be amputated, he had major organ failure due to extreme loss of blood, and he developed a blood infection. The coroner concluded: “Complications of shotgun wound to the right arm was the cause of death, with hepatocellular carcinoma, hepatic cirrhosis associated the hepatitis B, and hypertensive cardiovascular disease were contributory conditions.” Stout was charged with first-degree murder, aggravated burglary, and conspiracy to commit aggravated burglary. The same charges were filed against Maruska, but Maruska accepted a plea to a reduced charge of aggravated battery in exchange for his testimony against Stout. At the end of the State’s case, Stout was successful in obtaining a directed verdict and dismissal of the charge of conspiracy to commit aggravated burglary. The trial court found the extent of any agreement between Stout and Maruska was for nothing more than having Maruska beat up Adams. The jury convicted Stout of aggravated burglary and a lesser included charge of involuntary manslaughter. The trial court sentenced Stout to a presumptive sentence of 49 months’ incarceration for involuntary manslaughter and a consecutive presumptive sentence of 32 months’ incarceration for aggravated burglary. Stout appeals. Stout raises several arguments challenging the sufficiency of the evidence supporting his convictions. “When the sufficiency of the evidence is challenged in a criminal case, 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 tire defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005). First, Stout argues the record does not contain substantial competent evidence that he personally committed either aggravated burglary or involuntaiy manslaughter. The support for his argument is based on the lack of evidence that he intended to commit a felony upon entry to Adams’ apartment. Stout relies on the trial court’s statement during instruction conference that “the only evidence there is, even if you take the State’s evidence in the most positive light, is that defendant wanted him to beat him up. Not commit an aggravated battery, but simply a battery.” He contends that a person who enters an apartment with the intent to commit an aggravated battery might be guilty of aggravated burglary, but a person who enters an apartment with an intent to commit a simple battery cannot be guilty of aggravated burglary. Stout also contends the record lacks substantial competent evidence to support a conviction of involuntary manslaughter as there is a lack of evidence that Stout’s actions direcdy caused Adams’ death and that the death resulted from Adams’ actions. Stout states the record indicates that he may have kicked Adams, possibly in an attempt to bréale up the fight, but there were no indications Adams was mortally wounded by any kick. Stout argues he did not take a knife or gun into the apartment, nor did he touch a gun or knife when he was inside. The last sufficiency argument raised by Stout is that the record does not contain sufficient evidence to support the legal conclusion that he was culpable as an aider or abettor. Stout argues his command to Maruska to “go ahead” or “do it” was inadequate to establish guilt as an aider or abettor. He also argues that even if he is liable for his comment to Maruska to “go ahead,” the only crime he could be convicted of was simple battery. K.S.A. 21-3205(1) provides: “A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” K.S.A. 21-3205(2) is the foreseeability provision of the aider and abettor statute: “A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” Stout focuses on the “in pursuance of the intended crime” language in K.S.A. 21-3205(2) in arguing that once a simple battery occurred, his liability as an aider and abettor was legally terminated since it is impossible to be “in pursuance of’ an objective that has already been completed. Stout also suggests that the language “in pursuance of’ is ambiguous and therefore must be strictly construed in favor of the accused. See State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005) (“ ‘The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.’ ”) He argues “in pursuance of’ should be limited to any criminal act committed prior to the intended crime that promotes accomplishment of the intended crime. Viewing the evidence in the light most favorable to the State, there is sufficient evidence that Stout not only aided and abetted in an aggravated burglary, but there is evidence that he actually participated in the aggravated burglary as well. Maruska testified that Stout participated in the incident by kicking Adams during the wrestling over the shotgun. See State v. Green, 280 Kan. 758, 761, 127 P.3d 241 (2006)(“To establish guilt on the basis of aiding and abetting, the State was required to show that Green knowingly associated with the unlawful venture and participated in such a way as to indicate that he was facilitating the success of the venture.”). Not surprisingly, Stout downplays any emphasis on the fact that he ordered Maruska to knock down the door to Adams’ apartment in order to facilitate the battery against Adams, but we find this fact to be the critical factor that started an uninterrupted string of events leading to the severe injury to Adams and his eventual death. Stout is guilty of facilitating the battery against Adams and is guilty for the foreseeable acts committed by Maruska. Stout attempts to limit his guilt only to the acts leading up to any battery committed against Adams. Stout does not cite any case law — only general definitions — concerning the language in K.S.A. 21-3205(2) (“in pursuance of the intended crime”). We find Stout’s interpretation is not consistent with the foreseeability provisions of the criminal code. Stout is culpable for his orders to Maruska to beat up Adams and any reasonably foreseeable consequences of this order to commit violence. Stout’s culpability does not cease upon completion of the battery against Adams but extends to all reasonably foreseeable crimes committed within that incident. K.S.A. 21-3205(2). Aggravated burglary, the underlying crime in the instant case, is an inherently dangerous felony under K.S.A. 21-3436. We disagree with Stout’s argument that someone entering an apartment with an intent to commit a simple battery cannot be guilty of aggravated burglary. As pointed out by the State, a key fact in this case is the forcible entry into Adams’ residence with the intent to commit a battery. This was not a chance meeting on the street or even an encounter in a club. This was a planned violent act. Stout ordered Maruska to expend significant force against someone’s dwelling by kicking in the front door in order to complete a crime of violence inside. It was foreseeable that an aggravated battery might take place, and thus an aggravated burglary occurred. The State cites State v. Foy, 224 Kan. 558, 566-67, 582 P.2d 281 (1978), where the court stated: “While our court has never examined this issue, several states confronted with the question have held that burglary based upon the crime of assault can properly serve as die predicate for a felony-murder conviction. (Blango v. United States, 373 A.2d 885 [D. C. 1977]; State v. Miller, 110 Ariz. 489, 520 P.2d 1113 [1974]; People v. Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85 [1973]; and State v. Tremblay, 4 Or. App. 512, 479 P.2d 507 [1971]. See also Comment, The Merger Doctrine As A Limitation On The Felony-Murder Rule: A Balance Of Criminal Law Principles, 13 Wake Forest L. Rev. 369, 388-94 [1977].). “We find the reasoning in People v. Miller, supra, persuasive. The court states: . . [P]ersons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street. Where, as here, the criminal act underlying the burglary is an assault with a dangerous weapon, the likelihood that the assault will culminate in a homicide is significantly increased by the situs of the assault. When the assault takes place within the domicile, the victim may be more likely to resist the assault; the victim is also less likely to be able to avoid the consequences of the assault, since his paths of retreat and escape may be barred or severely restricted by furniture, walls and other obstructions incidental to buildings. Further, it is also more likely that when the assault occurs in the victim’s domicile, there will be present family or close friends who will come to the victim’s aid and be killed. . . .’ ([32 N.Y.2d at] 160-161).” The next sufficiency question raised by Stout is that his conviction for involuntary manslaughter must be reversed because Adams killed himself. Stout in essence argues he cannot be convicted of felony murder when the killing in this case resulted from a lawful act by Adams. Stout cites Black’s Law Dictionary, 602 (6th ed. 1991) and the Model Penal Code § 210.1 (2001) in defining “homicide” as an act of the perpetrator causing the death of another human being, and he argues that it is undisputed in this case that Adams’ shot and killed himself. Felony murder is the killing a human being committed in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto. K.S.A. 21-3401(b). Stout cites cases in support of his argument. In State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001), a co-felon was shot and killed by a police officer as he fled the scene of an aggravated battery. The Kansas Supreme Court reversed Sophophone’s conviction of felony murder of the co-felon as follows; “A felon may not be convicted of felony murder pursuant to K.S.A. 21-3401(b) for the killing of his co-felon, caused not by his actions but by the lawful acts of a law enforcement office acting in self-defense in the course and scope of his duties in apprehending the co-felon, who was fleeing from an aggravated burglary in which both felons had participated.” 270 Kan. 703, Syl. ¶ 6. In State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001), the court applied the same agency principles in Sophophone on a question reserved where the co-felon was killed by a victim: “Under the facts of this case and for the reasons set forth in State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001), a felon may not be convicted of felony murder pursuant to K.S.A. 21-3401(b) for the killing of his co-felon caused not by his acts or actions but by the lawful acts of a victim of aggravated robbery and kidnapping acting in self-defense for the protection of his residence and the occupants thereof.” 270 Kan. 804, Syl. ¶ 2. The court in State v. Bryant, 276 Kan. 485, 78 P.3d 462 (2003), upheld a felony-murder conviction of the defendant where a co-felon was shot by third party in the house where the co-felons had planned on robbing the victim of his drugs and money. The Bryant court distinguished Sophophone and Murphy by holding that Bryant’s co-felon “was not killed by a law enforcement officer or by the lawful acts of a victim acting in self-defense for the protection of his residence and the occupants thereof.” 276 Kan. at 490. The Bryant court appears to hold that in a drug deal “gone wrong,” tire felony-murder doctrine applies because of the threat or use of physical force or violence inherent in drug activity and that both the buyers and sellers carried and used firearms. 276 Kan. at 491. In the present case, we have a Murphy-type situation where the victim of an aggravated burglary lawfully acts in self-defense for the protection of his residence and the occupants thereof. However, the lawful actions of the victim did not result in the death of a co-felon but caused self-inflicted wounds that ultimately resulted in the victim’s death. The critical distinction in this case is that an innocent victim was killed, not a co-felon. Adams’ attempts at protecting himself and protecting his residence from the attack of Maruska and Stout were the cause of the self-inflicted gun shot wound that ultimately caused his death. The factual scenario in the present case lends itself to the question of whether charges of felony murder would apply if Adams’ shots had not hit himself or Maruska, but had fatally wounded an innocent bystander. In People v. Lowery, 178 Ill. 2d 462, 467, 687 N.E.2d 973 (1997), the court held that the felony murder doctrine applied even though tire intended victim of the underlying felony fired the shot that killed a bystander. They further held that the robbeiy victim’s actions were not an intervening cause or were merely coincidental where the victim’s resistance was a direct response to the defendant’s criminal acts and that resistance did not break the causal chain. We find no need to apply any intervening or superseding causes in a case where the shooting occurs as the victim and a co-felon are involved in a dangerous wrestling match over a gun. In this situation it really does not matter whether the victim is shot by himself or herself or by the co-felon. The entire incident in this case, from Maruska’s breaking down Adams’ door to the wrestling where each participant is shot, was a continuous felonious event without any break in the chain of causation. See State v. Anderson, 270 Kan. 68, 74-77, 12 P.3d 883 (2000) (citing People v. Schmies, 44 Cal. App. 4th 38, 51 Cal. Rptr. 2d 185 [1996], and holding that a driver in a high speed chase could be tried for involuntary manslaughter for the death of occupants killed by the police officer running a controlled intersection). Where a victim is attacked and in trying to reasonably defend himself or herself inflicts on himself or herself a fatal wound, the felony-murder doctrine may be applied. Stout also argues his conviction for involuntaiy manslaughter must be reversed because there is insufficient evidence explaining Adams’ death. He claims the coroner’s report and death certificate classifying Adams’ death as a “homicide” was based on the coroner’s belief that Adams had been shot by another individual. He also argues the coroner’s opinion that “[c]omplications of shotgun wound to the right arm was [Adams’] cause of death” should be disregarded because the coroner never saw the shotgun wound since Adams’ arm had been amputated prior to Adams’ death and the resulting autopsy. Stout argues there is no evidence to explain the 3y2-week intervening period between the time when Adams was shot and his ultimate death. Stout argues the intervening acts in the 3%-week time period superseded any proximate cause linking Stout to the death. Stout does not cite any cases in support of his argument, only general case law on proximate cause. See State v. Gholston, 272 Kan. 601, Syl. ¶ 1, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002) (‘Where a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim’s death was contributed to or caused by the negligence of the attending physicians or surgeons.”). The testimony of Dr. Jamie Oeberst, the coroner, supplied sufficient evidence of Adams’ cause of death. Dr. Oeberst’s conclusion was: “Complications of shotgun wound to the right arm was the cause of death, with hepatocellular carcinoma, hepatic cirrhosis associated the hepatitis B, and hypertensive cardiovascular disease were contributory conditions.” Dr. Oeberst testified how the complications from the shotgun wound caused Adams’ death. Adams lost a lot of blood from the shotgun wound. The loss of blood caused his kidneys to stop working. The loss of blood and the resulting low blood pressure caused a small stroke in his brain. About 12 days into Adams’ hospital stay, he developed a blood infection (sepsis) which in turn caused his liver to fail. Dr. Oeberst testified that the shotgun wound and the resulting loss of blood caused Adams to develop more complications to the diseases that were already present. We find Stout’s convictions are supported by sufficient evidence such that a rational factfinder could have found him guilty beyond a reasonable doubt. Finally, Stout argues the sentencing court violated the principles in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used his prior convictions to increase his sentence beyond the otherwise prescribed maximum without submitting the convictions to a jury for proof beyond a reasonable doubt. He recognizes the Kansas Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but argues Ivory was wrongly decided. Stout’s constitutional attack on the trial court’s application of his criminal history is a question of law allowing an unlimited review. See 273 Kan. at 46. The Ivory court analyzed the prior conviction exception to the Apprendi rule and relied upon language from Apprendi indicating that proof of prior convictions as sentencing enhancements need not be submitted to a jury and proved beyond a reasonable doubt. 273 Kan. at 46. The court held that Apprendi did not require a jury finding of the fact of a prior conviction beyond a reasonable doubt in order for the prior conviction to be included in a defendant’s criminal history score under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. The court also rejected the argument that Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), the source of the prior conviction exception, had been called into doubt by Apprendi. Ivory, 273 Kan. at 46-47. Stout acknowledges that Ivory controls. This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. State v. Jackson, 30 Kan. App. 2d 288, 299, 41 P.3d 871 (2002). Stout proffers no such indication, and his argument fails. See State v. Lackey, 280 Kan. 190, 235-40, 120 P.3d 332 (2005), cert. denied 164 L. Ed. 2d 399 (2006) (reaffirming Ivory after the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 [2005], and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 [2004]). Affirmed.
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Caplinger, J.; Johnny Palmer, Jr., appeals the district court’s revocation of his probation. Specifically, he challenges the court’s admission of an affidavit as sole evidence of his violations without testimony of the declarant or evidence of the declarant’s unavailability, contrary to Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). While we decline to extend the right to confront witnesses as provided in Crawford to defendants in probation revocation proceedings, we nevertheless find the affidavit was improperly admitted without evidence of the declarant’s unavailability. Accordingly, we reverse the probation revocation and remand to the district court with directions to engage in the appropriate balancing test before admitting the affidavit. Factual and procedural background In December 2003, Johnny Palmer, Jr. pled guilty to one count of possession of cocaine and one count of possession of drug paraphernalia in Reno County. The district court sentenced Palmer to 36 months’ probation with an underlying prison term of 68 months. In August 2004, the State filed a motion to revoke Palmer’s probation for cocaine use and failure to report as directed. Shortly thereafter, the motion was voluntarily withdrawn. In March 2005, the State filed another motion to revoke Palmer’s probation because he had again tested positive for cocaine, failed to report as directed, and failed to successfully complete drug and alcohol treatment. The district court conducted a hearing on the State’s motion, at which time Palmer admitted to having vio lated the terms of his probation. The court revoked and reinstated Palmer s probation, ordering him to complete drug and alcohol treatment and the Sedgwick County residential community corrections program. In December 2005, the State again sought to revoke Palmer s probation for failing to report and testing positive for cocaine. The district court conducted a second probation revocation hearing. Brad Wedel, Palmer s former court services officer from Reno County, testified on behalf of the State. He indicated Palmer had been transferred to Sedgwick County. The State attempted to offer into evidence Wedel’s certified statement of Palmer s Sedgwick County community corrections officer. Palmer objected to the statement as improper hearsay because the affiant was unavailable for cross-examination. The district court overruled Palmer s objection and admitted the statement into evidence. In essence, the affidavit indicated that Palmer had violated his probation by ingesting and testing positive for cocaine and failing to report as directed. Relying solely on the affidavit, the district court revoked Palmer s probation and ordered him to serve his original sentence. Palmer timely appeals. On appeal, Palmer argues the district court erred in admitting statements of the community corrections officer, who did not testily at the probation revocation hearing. Citing Crawford, 541 U.S. 36, Palmer claims the admission of the affidavit violated his rights to confrontation under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. While probation revocations are reviewed for an abuse of discretion, due process violations are questions of law over which the appellate court exercises de novo review. Hearst v. State, 30 Kan. App. 2d 1052, 1055-56, 54 P.3d 518 (2002). Prior to Crawford, the Kansas Supreme Court found sworn statements to be admissible at probation revocation in certain circumstances. See State v. Yura, 250 Kan. 198, 207, 825 P.2d 523 (1992) (“[A]ffidavits may be admitted for good cause shown without violating the probationers right to confront witnesses.”). To ascertain the meaning of “good cause,” the Yura court adopted the rationale of United States v. Bell, 785 F.2d 640 (8th Cir. 1986). Yura, 250 Kan. at 207-08. As a consequence of the United States Supreme Court’s decision in Crawford, the importance of the Confrontation Clause in criminal proceedings has increased dramatically. In Crawford, the State sought to introduce the tape-recorded statements from a police interrogation of the defendant’s wife, who did not testify at trial because of the marital privilege. 541 U.S. at 38-40. The Court held the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54. While declining to define “testimonial,” the Court held that the term, at a minimum, includes “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” 541 U.S. at 68. Because the defendant did not have the opportunity to cross-examine his wife during her police interrogation, the Court held that admission of the interrogation statements violated the defendant’s Sixth Amendment right to confrontation. 541 U.S. at 68-69. Here, Palmer argues that an affidavit alleging a probation violation clearly falls within the realm of testimonial evidence and therefore should have been excluded under Crawford. Palmer further suggests that Crawford has abrogated the “good cause” test set forth in Yura. Therefore, Palmer urges us to find the State was required to demonstrate the unavailability of the affiant and that Palmer had an opportunity to cross-examine the affiant prior to the hearing. Finally, Palmer reasons that even ii Yura’s good cause test is still intact, the State failed to produce any evidence that confrontation was undesirable or impractical. Application of Crawford to probation revocation proceedings Thus, we must first decide whether Crawford operates to limit the use of affidavits and other hearsay evidence in probation revocation proceedings. If so, the district court erred in relying upon the affidavit in this case to revoke Palmer’s probation. If not, we must nevertheless determine whether Yura’s good cause test prohibits admission of the affidavit under the facts here. Whether Crawford limits admission of sworn statements at a probation revocation hearing appears to be a matter of first impression for this court. We note, however, that a panel of this court recently issued State v. Duskie, No. 95,949, unpublished opinion filed March 2, 2007, addressing the defendant’s challenge to the district court’s reliance on his probation record as recounted by his court services officer at the probation revocation proceeding. Without elaborating, the panel cited Crawford’s basic confrontation rule before proceeding to a harmless error analysis based on defendant’s failure to object at the hearing and counsel’s admission that defendant failed to abide by the terms of his probation. Duskie, slip op. at 10. Here, the State insists that admission of the affidavit was permissible under K.S.A. 2006 Supp. 22-3716(b), which delineates the procedure for revoking a defendant’s probation. Under that statute, the court must conduct a hearing at which “[Relevant written statements made under oath may be admitted and considered by the court along with other evidence” in determining whether the defendant violated the terms of his or her probation. K.S.A. 2006 Supp. 22-3716(b). The State fails to recognize, however, that K.S.A. 2006 Supp. 22-3716(b) has not been substantively amended since Crawford. Rather, the statute as it currently stands is consistent with our Supreme Court’s decision in Yura. 250 Kan. at 208 (holding K.S.A. 1990 Supp. 22-3716(2) authorizes admission of affidavits constituting relevant written statements made under oath stating the results of a laboratory test). Despite the explicit authorization of K.S.A. 2006 Supp. 22-3716(b), we must nevertheless determine whether Crawford has overruled that portion of the statute. A general survey of other jurisdictions reveals a developing trend in which Crawford has not been extended to probation revocation proceedings. See Ash v. Reilly, 431 F.3d 826, 829-31 (D.C. Cir. 2005); United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir. 2005), cert. denied 163 L. Ed. 2d 714 (2005); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004); United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004); Jackson v. State, 931 So. 2d 1062, 1063 (Fla. Dist. App. 2006); Commonwealth v. Wilcox, 446 Mass. 61, 67-68, 841 N.E.2d 1240 (2006); State v. Abd-Rahmaan, 154 Wash. 2d 280, 287-88, 111 P.3d 1157 (2005); cf. United States v. Jarvis, 94 Fed. Appx. 501, 502 (9th Cir. 2004) (holding a probationer must be afforded the right to confront and cross-examine adverse witnesses at revocation proceedings “unless the hearing officer specifically finds good cause for not allowing confrontation”). In People v. Brown, 32 App. Div. 3d 1222, 821 N.Y.S.2d 348, leave to appeal denied by 7 N.Y.3d 924 (2006), the court specifically recognized that a defendant’s right to confront witnesses is limited to the context of criminal prosecution. Similarly, the court in People v. Turley, 109 P.3d 1025, 1026 (Colo. App. 2004), reasoned that a defendant’s right of confrontation in probation revocation proceedings is somewhat limited because it flows entirely from the Due Process Clause of the Fourteenth Amendment, whereas the rule in Crawford was derived from the Confrontation Clause of the Sixth Amendment. See also Kirby, 418 F.3d at 627 (noting the Sixth Amendment specifically states that it applies in “ ‘criminal prosecutions’ ”). Like other jurisdictions, Kansas courts have long recognized a substantial difference between criminal prosecutions and probation revocation hearings. The rights of an offender in a probation revocation hearing are not the same as those extended him or her by tire United States Constitution upon the trial of the original offense. See, e.g., State v. Miller, 20 Kan. App. 2d 378, 385, 888 P.2d 399 (1995). Our Supreme Court has specifically indicated that “[pjrobation from serving a service is an act of grace” and a defendant is not entitled to the “full panoply of rights.” Yura, 250 Kan. at 201, 206 (citing Morrissey v. Brewer, 408 U.S. 471, 480, 33 L. Ed. 2d 484, 92 S. Ct. 2593 [1972]). Because probation revocation hearings are not equivalent to criminal prosecutions, they are allowed a more flexible process and consideration of “material that would not be admissible in an adversary criminal trial.” Yura, 250 Kan. at 207 (quoting Morrissey, 408 U.S. at 489). Applying similar reasoning and conforming with current trends in case law, it is only logical to decline to extend the right to confront witnesses as provided in Crawford to defendants in probation revocation proceedings. Moreover, this conclusion is not contravened by Palmer s argument that use of the affidavit at his probation violation hearing violates the Kansas Constitution because § 10 is more explicit than the Sixth Amendment regarding the right of confrontation. Whereas the Sixth Amendment states the accused shall have the right “to be confronted with the witnesses against him,” §10 of the Kansas Constitution Bill of Rights states the accused shall have the right “to meet the witness face to face.” Although Palmer correctly identifies discrepancies between § 10 of the Kansas Constitution Bill of Rights and the Sixth Amendment to the United States Constitution, our court recently disavowed this argument in State v. Blanchette, 35 Kan. App. 2d 686, 699, 134 P.3d 19, rev. denied 282 Kan. __ (2006), cert. denied 167 L. Ed. 2d 115 (2007). There, the court recognized that while our Supreme Court may interpret the Kansas Constitution differently than the United States Constitution, it has traditionally declined to do so. 35 Kan. App. 2d at 699. In fact, the court in State v. Busse, 231 Kan. 108, 110, 642 P.2d 972 (1982), indicated the protections under both Constitutions with regard to confronting witnesses are the same. “ ‘It has long been recognized . . . that the right of confrontation under the United States Constitution and the right to meet the witnesses “face to face” under Section 10 of the Kansas Bill of Rights are satisfied when defendant has had an opportunity to cross-examine the witnesses against him. [Citations omitted.]’ ” Blanchette, 35 Kan. App. 2d at 699. Therefore, we hold the district court did not violate Palmer’s right to confrontation under Crawford by admitting the affidavit in Palmer’s probation revocation hearing. Existence of good cause to deny confrontation Nevertheless, defendants are entitled to minimal due process rights, including “ The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ ” Yura, 250 Kan. at 207 (quoting Morrissey, 408 U.S. at 489). The question thus remains whether good cause existed for denying confrontation and whether the district court properly admitted the community corrections officer’s statements under Yura. In order to dispense with confrontation pursuant to Yura, the court must evaluate (1) the explanation offered by the State as to why confrontation is undesirable or impractical, and (2) the reliability of the evidence offered by the State in lieu of live testimony. 250 Kan. at 208. In other words, the court must “balance the probationer’s right to confront an adverse witness against the grounds asserted by the government for not requiring confrontation.” Yura, 250 Kan. at 208. In Miller, 20 Kan. App. 2d at 379, the defendant argued he was denied his right to confrontation because the only evidence presented to establish the violation of his probation conditions was sworn affidavits. Because the district court failed to make a specific finding that good cause existed for not allowing confrontation, this court remanded the case with directions to the district court to engage in the appropriate balancing test before determining admissibility. 20 Kan. App. 2d at 387-88. Similarly, in State v. Graham, 272 Kan. 2, 6, 30 P.3d 310 (2001), our Supreme Court determined that unsubstantiated and unreliable hearsay cannot provide the sole basis for a probation revocation. When hearsay is the only evidence, the indicia of reliability must be substantial in order to furnish legally sufficient grounds for revocation. 272 Kan. at 6. Here, the district court did not make specific findings as to admissibility of the community corrections officer’s affidavit. Despite recognizing the existence of the first factor under Yura, the State failed to proffer any explanation as to why confrontation was undesirable or impractical. The State briefly mentioned that the community corrections officer was located in Sedgwick County rather than Reno County, but neither elaborated nor directly indicated the officer’s presence was undesirable or impractical. While it may have been impractical for a community corrections officer to travel to Reno County to testify at a probation revocation hearing, the district court did not make this finding. The second factor of the Yura test, reliability of the affidavit in lieu of testimony, also was not addressed here. The transcript from the probation revocation hearing indicates the district court engaged in an extended inquiry as to whether the affidavit in question actually referred to Palmer and not another probationer. Apparently the affidavit referred only to Palmer by name and did not contain any other identifying information such as his social security number. Moreover, the community corrections officer had confused the case numbers and sentencing dates of the two cases. However, other than verifying that the affidavit referred to Palmer, the district court did not make a specific finding that the affidavit was rehable. Moreover, no finding was made here that the indicia of the affidavit’s reliability was substantial — a finding required because hearsay was the only evidence upon which the district court based the probation revocation. See Graham, 272 Kan. at 6. In light of the confusion surrounding the community corrections officer’s statement and some doubt that Palmer was even the subject of the affidavit, the transcript tends to indicate that the affidavit was not rehable. We hold the district court erred in admitting the affidavit as the sole evidence of Palmer’s probation violation without engaging in Yuras two-factor good cause test. The court failed to consider both whether the State proffered an appropriate explanation as to why confrontation was undesirable or impractical, and whether the affidavit was rehable. Therefore, we reverse the revocation of Palmer’s probation and remand the case with directions to the district court to engage in the two-factor balancing test before determining admissibility of the affidavit. Reversed and remanded with directions.
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Green, J.: James Landis appeals his convictions and sentences for possession of marijuana with intent to sell within 1,000 feet of a school in violation of K.S.A. 65-4163(b); possession of methamphetamine in violation of K.S.A. 65-4160; possession of marijuana without a drug tax stamp in violation of K.S.A. 79-5208; and possession of drug paraphernalia in violation of K.S.A. 65-4152. Landis argues that the evidence obtained during the search of his resi dence should have been suppressed because material information was deliberately omitted from the affidavit in support of a search warrant. We determine that the affidavit, which was based solely on hearsay statements from a person who was a participant in the crime under investigation, failed to establish probable cause to search Landis’ residence. Moreover, consideration of the information deliberately omitted from the affidavit further magnifies the lack of probable cause in the affidavit. Because there was not probable cause to issue the search warrant, the evidence obtained from the search of Landis’ residence should have been suppressed. Accordingly, we reverse and remand with directions to suppress the evidence obtained from the search. One afternoon in June 2004, Trooper Dale Patrick stopped Janet Melroy for a traffic violation. Kevin Brown, Melroy’s son, was a passenger in the car along with his two children and his girlfriend. During the stop, Patrick found marijuana and a pipe in the car. Melroy and Brown were placed under arrest and taken separately to the police station. While driving to the police station, Patrick questioned Melroy about where she had purchased the marijuana. Initially, Melroy said that she had purchased the marijuana from a man named “John” in Wichita. Melroy told Patrick that she had purchased marijuana from this person several times. Later in their conversation, however, Melroy stated that this was the first time she had bought marijuana from him. Patrick testified that he asked Melroy whether she had purchased the marijuana in Canton, but she responded no. When Patrick asked Melroy where she had purchased the marijuana, Melroy responded that she bought it in several different places. Melroy also told Patrick that she met the person in McPherson. Patrick testified that he confronted Melroy about her conflicting statements and told her that he did not think she was being truthful with him. After arriving at the police station, Patrick told Detective Travis Hawkinson about Melroy’s conflicting statements. When Patrick and Hawkinson interviewed Melroy at the police station, Melroy changed her story and told the officers that she had obtained the marijuana from Landis at his residence earlier that day. Melroy told the officers that Landis had “fronted” her the marijuana and that she was supposed to pay him for it at a later time. Melroy stated that she had smoked marijuana at Landis’ residence that day. Melroy described Landis’ home and its location to the officers. Patrick testified that Melroy stayed consistent with her story that she had obtained the marijuana from Landis. After the interview with Melroy, Hawkmson submitted an affidavit for a search warrant of Landis’ residence. The affidavit for the search warrant contained the following information: that 1/4 ounce of marijuana and drug paraphernalia had been found in a car during a traffic stop; that Melroy and Brown were arrested and taken to the police station; that Melroy told the officers during her interview at the police station that she had purchased the marijuana on credit from Landis at his residence; that Melroy stated that Landis had handed her the marijuana when she came out of the bathroom at his residence; that Melroy stated that she was coming from Landis’ residence when she was stopped by Patrick; that Melroy told the officers that she had previously purchased marijuana from Landis on several occasions; that Melroy described Landis’ residence; and that Hawldnson obtained Landis’ address from another officer. The trial court issued a search warrant for Landis’ residence. The search warrant was executed at Landis’ residence that evening. During the search, Landis revealed to Hawldnson where the drugs in his residence were hidden. According to Hawldnson, Landis went to tire hot water heater in his house and got down on his hands and knees and pulled out a green sock. Landis then took a metal pipe and marijuana out of the sock. Landis also retrieved a small bag from underneath the water heater. Inside the bag was a plastic snort tube, methamphetamine, and marijuana. In addition, marijuana was discovered in Landis’ garage. Landis was charged in an amended complaint with possession of marijuana with intent to distribute within 1,000 feet of a school in violation of K.S.A. 65-4163(b), possession of methamphetamine in violation of K.S.A. 65-4160, possession of marijuana without drug tax stamps in violation of K.S.A. 79-5208, and possession of drag paraphernalia with intent to use in violation of K.S.A. 65-4152. Before trial, Landis moved to suppress the evidence obtained during the search of his home. Landis argued that the affidavit for search warrant lacked probable cause on its face. Landis maintained that there were no facts in the affidavit upon which to find Melroy reliable. Moreover, Landis contended that the affidavit omitted Melroy s conflicting statements about where she had obtained the marijuana and that the judge issuing the search warrant was never made aware of those conflicting statements. At the suppression hearing, Hawkinson testified that he knew Melroy had given conflicting statements concerning from whom Melroy had purchased the marijuana. Nevertheless, Hawkinson decided not to put this information in the affidavit. When asked why he did not include the information in the affidavit, Hawkinson stated: “Because almost eveiy interview that we do with something like this, they’re afraid, they make up a story.” According to Hawkinson, he decided that Melroy’s statements that she obtained the marijuana from someone other than Landis were not credible. The trial court later filed a letter opinion on Landis’ motion to suppress. The trial court found that Hawkinson had deliberately omitted information concerning Melroy’s inconsistent statements from his affidavit for the search warrant. Moreover, the trial court found that this information was material, stating: “Conflicting statements made by an informant about the source of drags clearly bear on the credibility of that informant, and should be disclosed to a magistrate in the search warrant affidavit.” Nevertheless, the trial court found that this deliberate material omission did not destroy the probable cause for issuance of the warrant. The trial court stated that had the judge known about the omitted statements, he still would have issued the search warrant for Landis’ residence. As a result, the trial court denied Landis’ motion to suppress. Landis’ case proceeded to trial. The State was allowed to present testimony from Melroy concerning her purchase of marijuana from Landis. In her testimony, Melroy admitted to buying a 1/4 ounce of marijuana from Landis just before she was pulled over by Pat rick. The jury found Landis guilty of the charged offenses. Landis was sentenced to 68 months in prison. Probable Cause for Issuance of Search Warrant On appeal, Landis contends that the evidence obtained during the search of his residence should have been suppressed because material information was deliberately omitted from the affidavit for search warrant. Landis points out that Hawldnson failed to include in tire affidavit for the search warrant Melroy s conflicting statements about where and from whom she obtained the marijuana. Landis contends that this omitted information combined with the facts alleged in the search warrant affidavit failed to establish probable cause to issue the search warrant and that his motion to suppress should have been granted. Standard of Review In reviewing the trial court’s denial of Landis’ motion to suppress, this court reviews the factual underpinnings of the trial court’s decision for substantial competent evidence. This court reviews the trial court’s ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, determine the credibility of witnesses, or resolve conflicts in tire evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). Under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), a criminal defendant may challenge the veracity of an affidavit used by police to obtain a search warrant. State v. Ratzlaff, 255 Kan. 738, 753, 877 P.2d 397 (1994). Noting that a criminal defendant can challenge an affidavit for search warrant when there has been a deliberate omission, our Supreme Court in State v. Grissom, 251 Kan. 851, 907, 840 P.2d 1142 (1992), stated: “In State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982), this court, relying upon Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), reviewed the general rules applying to a false statement in an affidavit for a search warrant and extended the rules to a deliberate omission. This court stated that a person attacking the affidavit must show the deliberate omission of material information. 232 Kan. at 319.” Thus, a defendant attacking the sufficiency of an affidavit for a search warrant based upon an omission in the affidavit must establish two things: (1) that the omission was deliberate; and (2) that the omission was material. Lockett, 232 Kan. at 319. Each of these prongs will be discussed separately. Deliberate Omission The trial court in this case found that “Detective Hawkinson deliberately omitted information which was available to him as a result of his conversations with Trooper Patrick and Janet Melroy.” The trial court noted that although Hawkinson might not have known all of the details of Melroy’s statements concerning her purchases from “John” in Wichita, Hawkinson did know that Melroy had made inconsistent statements about obtaining the drugs and paraphernalia from someone other than Landis. The trial court stated that although Hawkinson and Patrick did not find those statements to be credible, the judge issuing the search warrant should have been made aware of Melroy’s statements. In its brief, the State does not contest the trial court’s finding that the omission of Melroy s inconsistent statements was deliberate. At the suppression hearing, Hawkinson testified that he knew that Melroy had given conflicting statements concerning from whom she had purchased the marijuana. Nevertheless, Hawkinson decided not to put this information in the affidavit. According to Hawkinson, he decided that Melroy’s statements that she obtained the marijuana from someone other than Landis were not credible. Hawkinson’s testimony establishes that the omission was deliberate. As a result, substantial competent evidence exists in the record to support the trial court’s finding that the omission was deliberate. Material Omission As discussed above, a defendant attacking an affidavit for search warrant based upon a deliberate omission must also establish that the omission was material. Lockett, 232 Kan. at 319. This court determines materiality by inquiring whether the judge issuing the search warrant would have found probable cause if the omitted material had been included. Lockett, 232 Kan. at 320. Here, the trial court found that even if the issuing judge had known about the omitted statements, he still would have issued the search warrant for Landis’ residence. The trial court noted that Melroy’s earlier statements impheating someone other than Landis were contradictory, vague, and confusing. On the other hand, Melroy’s later statement impheating Landis was very specific as to the time, matter of purchase, and location of Landis’ residence. The trial court stated that had the issuing judge known about Melroy’s statements concerning “John” and Wichita, “under the totality of the circumstances he would have been more inchned to rely on the detailed specific information given ultimately by Melroy about her dealings with Landis.” The trial court concluded by stating: “I beheve that there was adequate probable cause in the search warrant affidavit, and I cannot say clearly that probable cause was destroyed by the deliberate omission by Detective Hawkinson.” In reviewing the trial court’s decision, this court must analyze both the affidavit for search warrant and the information omitted from the affidavit to determine whether there was probable cause to issue the search warrant. In his motion to suppress filed with the trial court, Landis argued: (1) that the affidavit for search warrant on its face did not establish probable cause to issue the search warrant; and (2) that the affidavit, along with the omitted information, did not establish probable cause to issue the search warrant. Although these two arguments are not separately set out in Landis’ appellate brief, it makes sense to first look at the information contained in the affidavit and then the omitted information. See State v. Colbert, 257 Kan. 896, 907, 896 P.2d 1089 (1995); State v. Hendricks, 31 Kan. App. 2d 138, 144, 61 P.3d 722 (2003) (first reviewing sufficiency of affidavit to determine whether omissions were material). Evaluation of Affidavit In the recent case of State v. Hicks, 282 Kan. 599, Syl. ¶ 1, 147 P.3d 1076 (2006), our Supreme Court set forth the standard used by an issuing magistrate when evaluating an affidavit for a search warrant: “In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to malee a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Our Supreme Court in Hicks further set forth the standard used by a reviewing court when a defendant challenges an affidavit for a search warrant: “When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit’s sufficiency under this deferential standard.” 282 Kan. 599, Syl. ¶ 2. After citing Hawkinson’s qualifications, the affidavit for the search warrant read in pertinent part: “On June 9 2004, at approximately 1715 hr. Kansas Highway Patrol Trooper Dale Patrick contacted this Affiant by phone. Trooper Patrick stated that he had conducted a traffic stop on a vehicle approximately 1 mile west of Galva on Highway US. 56. During the traffic stop Trooper Patrick found approximately 1/4 ounce of marijuana and drug paraphernalia in the vehicle. 2 of the occupants, a Janet Melroy and Kevin L. Brown were subsequently arrested for possession of marijuana and drug paraphernalia. Trooper Patrick asked that I come to the location of the traffic stop to assist. At approximately 1730 hr. I arrived at the location of the traffic stop and spoke to Trooper Patrick. Trooper Patrick asked me to transport Kevin Brown to the McPherson County Jail, while he transported Janet Melroy. Trooper Patrick also advised me that he had given Kevin Brown the Miranda Warning prior to my arrival. At approximately 1735 hr. I transported Kevin Brown to the McPherson County jail. While enrout I asked Brown whom the marijuana belonged to. Brown stated that the marijuana belonged to his mother, Janet Melroy. “At June 9, 2004 at approximately 1741 hr. Trooper Patrick and I conducted an interview with Janet Melroy. The interview took place in the McPherson County Jail and Melroy gave the following information: “Melroy stated that she had just left Jimmy Landis’ residence in Canton, McPherson County Kansas just before being stopped and arrested on June 9, 2004. Melroy had gone to the Landis residence to buy 1/4 ounce of marijuana from Landis. While at the Jimmy Landis residence Melroy went into the bathroom and when she came out Jimmy Landis gave her approximately 1/4 ounce of marijuana. Melroy advised this Affiant that she received the marijuana today and would then pay Landis for the marijuana when she got paid this next Friday. Melroy advised this Affiant that she has bought marijuana from Landis in the past on several occasions. Melroy stated that Jimmy Landis lives in a light blue house with a white fence around the porch. The house sits on the north side of Grove Street in Canton, McPherson County Kansas. “On June 9, 2004 at approximately 1853 hr. this Affiant spoke to Canton Police Officer Mosher. Officer Mosher advised me that on April 28, 2004 he took a written statement from Jimmy Landis. In the statement Jimmy Landis gave his home address as 128 Grove Street Canton, Kansas. Officer Mosher also states that he knows from past contacts that Jimmy Landis lives at 128 Grove St. in Canton Kansas. “Therefore, this Affiant believes that probable cause exists to believe that marijuana, drug paraphernalia used to ingest drugs, and drug paraphernalia, are located on the premises at 128 Grove, Canton, McPherson County Kansas. The same residence occupied by Jimmy Landis.” a. Informant All of the information concerning Landis’ involvement in selling and possessing drugs came exclusively from Melroy’s statements. This information was hearsay. “Hearsay is acceptable in such affidavits, but among the circumstances to be considered by the magistrate in determining whether probable cause exists to support a search warrant are the Veracity’ and the ‘basis of knowledge’ of any person providing hearsay information. [Citations omitted.]” Hicks, 282 Kan. at 614. Mere conclusions by the affiant are insufficient to establish probable cause. State v. Hemme, 15 Kan. App. 2d 198, 806 P.2d 472, rev. denied 248 Kan. 998, cert. denied 502 U.S. 865 (1991). Our Supreme Court has recognized that concern over the “veracity” and “basis of knowledge” considerations “falls by the wayside if ‘an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him [or her] to criminal liability.’ [Citations omitted.]” Hicks, 282 Kan. at 614. Nevertheless, when the person providing the information was a participant in the crime under investigation or has been implicated in another crime and is acting in the hope of gaining leniency, the presumption of reliability is inapplicable: “ ‘It does not follow . . . that if the name of the person providing the information is disclosed, then he is by virtue of that fact alone properly characterized as a citizen-informer entitled to the presumption of reliability. “That a person is named is not alone sufficient grounds on which to credit an informer, but it is one factor which may be weighed in determining the sufficiency of an affidavit.” Thus, if the person giving the information to the police is identified by name but it appears that this person was a participant in the crime under investigation or has been implicated in another crime and is acting in the hope of gaining leniency, then the more strict rules regarding the showing of veracity applicable to an informer from the criminal milieu must be followed. [Citation omitted.]’ ” State v. Davis, 8 Kan. App. 2d 39, 43, 649 P.2d 409 (1982). Here, Melroy was a participant in the crime under investigation. She had been arrested and was in police custody when she made her statements. She had not come forward as a concerned citizen to give the police information concerning Landis’ involvement in drugs. Melroy was not a disinterested citizen-informer who was entitled to a presumption of reliability. Rather, information surrounding Melroy’s veracity and possible police corroboration of her statements were necessary to establish probable cause for the search warrant. See State v. Hendricks, 31 Kan. App. 2d at 144. Because Melroy’s statements were the only evidence implicating Landis in the sale of drugs, it was incumbent upon the officers to independently corroborate her statements or to include other information establishing her credibility in the affidavit. b. Corroboration Nevertheless, in the affidavit, the only corroboration of Melroy’s statements was confirmation that Landis lived on Grove Street. In State v. Olson, 11 Kan. App. 2d 485, 492, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986), police corroboration of the defendant’s address supplied by tire informant was insufficient to establish the reliability or credibility of the informant. See also Hemme, 15 Kan. App. 2d 198 (holding that information in affidavit supporting search warrant insufficient to establish reliability or credibility of informant where only corroboration of informant’s statements was confirmation of defendant’s address). Under Olson and Hemme, police corroboration of the location of Landis’ residence was insufficient to establish Melroy’s reliability or credibility. No other information in the affidavit supported Melroy’s reliability or credibility. There was no indication that the officers had established a relationship with Melroy where she had previously provided reliable information. There was no information that the police had reason to believe that Melroy was a credible source. Moreover, there was no attempt by the police officers to independently investigate Landis’ involvement in drugs. “In the absence of any evidence estabhshing the reliability or credibility of the informant, corroboration by an independent police investigation would help establish probable cause. [Citation omitted.]” Hemme, 15 Kan. App. 2d at 202. There was no indication that the police observed any activities at Landis’ residence that would confirm Melroy’s statements. As discussed above, the only independent police investigation in this case was the verification of the location of Landis’ residence. This was simply inadequate to establish that Melroy was a reliable source. c. Previous Drug Purchases Moreover, the only information in the affidavit indicating that drugs might be found at Landis’ residence came from Melroy’s statement that she had purchased drugs there earlier that day. Nevertheless, in State v. Morgan, 222 Kan. 149, 153, 563 P.2d 1056 (1977), our Supreme Court held that “[e]vidence of a single isolated drug sale may not give probable cause to believe drugs are present at a particular location.” Although “[a] protracted or continuous course of drug traffic at a particular location unquestionably would support the determination of probable cause,” State v. Jacques, 225 Kan. 38, 42, 587 P.2d 861 (1978), that was not the case here. Although the affidavit points to Melroy’s statements that she had previously purchased marijuana from Landis in tire past, there were no details as to where Melroy had made the past purchases. The drug purchase could have taken place in a car, at another person’s residence, or in a public place. There was nothing in the affidavit that established that these previous drug purchases took place at Landis’ residence. When considering the totality of the circumstances set forth in the affidavit and keeping in mind the deferential standard that must be applied, we determine that the issuing magistrate did not have a substantial basis for concluding probable cause existed. d. Omitted Information Moreover, this lack of probable cause becomes magnified when we consider the information that was deliberately omitted from the affidavit. Melroy initially implicated “John” as the person who sold her marijuana. When discussing her purchase of drugs from “John,” she made conflicting statements concerning where she had purchased the drugs and whether she had previously purchased from him. Later, she changed her story and pointed to Landis as the seller. These inconsistent statements show that Melroy lied to police officers during her interrogation and would have been very important in assessing her credibility. As the trial court noted in its written decision, “[conflicting statements made by an informant about tire source of drugs clearly bear on the credibility of that informant, and should be disclosed to a magistrate in the search warrant affidavit.” Nevertheless, the trial court found that the magistrate judge would have issued the search warrant even if he would have been made aware of Melroy’s inconsistent statements: “In the opinion of this court, had Judge Anderson known about the omitted statements made by Janet Melroy, he still would have issued the search warrant for the Landis residence in Canton. The initial statements made by Miss Melroy were contradictory even among themselves. She apparently told Trooper Patrick that this was tire first time she had ever bought marijuana, but immediately followed this by saying that she had actually purchased from him several different times. Compared to a later very specific statement, she made concerning the time, manner of purchase and location of the Landis transaction, her earlier statements were obviously vague and confusing. I believe that even had Judge Anderson known about tire various statements concerning ‘John’ and Wichita, under the totality of the circumstances, he would have been more inclined to rely on the detailed specific information given ultimately by Melroy about her dealings with Landis.” The reasoning of the trial court can be reconstructed into the following categorical syllogism: Major Premise: All people who initially he about their participation in a criminal activity, but later give specific details about their participation in the criminal activity are likely telling the truth about what diey later say about the criminal activity. Minor Premise: A initially lied about her participation in a crime, but later gave specific details about her participation in the crime. Conclusion: Therefore, what A later said about the specific details of the crime are likely trustworthy. This is a logical non sequitur to conclude from the premise that because a person gives specific details about his or her participation in a crime after having Med about his or her participation in the crime that therefore what that person says about the specific details of the crime is trustworthy. Such a conclusion does not really follow from the premises by which it is supposed to be supported. The fact that specific details follow sketchy details and contradictory statements is no guarantee that what a person says about the specific details of a crime is trustworthy. The person may have had time to think up a better story that was just as dishonest as the earlier version. As discussed above, no information in the affidavit supported Melroy’s veracity, other than police corroboration of the location of Landis’ residence. The information deliberately omitted from the affidavit indicated that Melroy was not a reliable informant as she had made dishonest statements to police officers. Without other information establishing Melroy’s credibility or an independent police investigation verifying the reliability of Melroy’s statements, there was not probable cause to issue the search warrant. We determine that had the judge been made aware of the omitted information, “the combined bits and pieces of information would have failed to establish that probable cause existed under the totality of the circumstances. See State v. Shively, 26 Kan. App. 2d 302, 306, 987 P.2d 1119 (1999), aff'd 268 Kan. 589, 999 P.2d 259 (2000).” Hendricks, 31 Kan. App. 2d at 144. United States v. Leon In its brief, the State makes no argument regarding application of the good faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984). Therefore, it appears that the State has waived any argument under Leon. See Hicks, 282 Kan. at 617-18 (where State failed to pursue argument under Leon, our Supreme Court regarded argument as waived). Nevertheless, even if this court were to consider the Leon good faith exception to the exclusionary rule, it appears that the motion to suppress still should have been granted. Under the Leon good faith exception, evidence should not be excluded unless it is shown: “ ‘(1) that the judge or magistrate who issued the warrant was deliberately misled by false information; (2) that the judge or magistrate wholly abandoned his or her neutral and detached role; (3) that the warrant was so lacking in specificity that die officers could not determine the place to be searched or the things to be seized; or (4) that there was so little indicia of probable cause contained in the warrant that it was entirely unreasonable for an officer to believe the warrant valid. [Citation omitted.]’ ” State v. Probst, 247 Kan. 196, 204, 795 P.2d 393 (1990). “[T]he stated purpose of the exclusionary rule is to deter police misconduct. Leon, 468 U.S. at 916.” State v. Hendricks, 31 Kan. App. 2d 138, 145, 61 P.3d 722 (2003). Here, pertinent information was deliberately withheld from the affidavit by Detective Hawkinson. “ ‘[A] deliberate omission is often equal to an actual misstatement’ in determining whether a magistrate may have been misled by false information.” Hendricks, 31 Kan. App. 2d at 145. The record in this case indicates that Hawkinson acted in bad faith by deliberately omitting material information and misleading the court in his affidavit for the search warrant. As a result, the Leon good faith exception is inapplicable, and the evidence should have been suppressed. Other Issues Raised by Landis In addition, Landis raises the following two arguments in his brief: (1) that he should be granted a new trial because the State failed to disclose an agreement of leniency with one of its witnesses; (2) that the trial court abused its discretion in admitting his prior convictions under K.S.A. 65-4151; and (3) that cumulative error denied him a fair trial. Because we have reversed Landis’ convictions and remanded the case with directions for the trial court to suppress the evidence obtained during the search, it is unnecessary for this court to address Landis’ remaining arguments. Reversed and remanded with directions to suppress the evidence obtained during tire search of Landis’ residence.
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Hill, J.: In this appeal we consider whether the district court made a mistake when it denied Clifton Lane Schow’s motion to withdraw his plea because he objected to the criminal history classification contained in his presentence investigation (PSI) report. Schow expected probation for his crime but received a presumptive incarceration sentence due to his criminal history. He raises two issues. First, Schow argues that the district court abused its discretion when it would not let him withdraw his plea because both sides were mistaken about his criminal history. This court has held before that a trial court must sentence a defendant in light of his or her true criminal history score. Mutual mistake about a criminal history score is no reason to withdraw a plea in a case where the defendant is represented by competent counsel; where the defendant was not misled, coerced, mistreated, or unfairly taken advantage of; and where his or her plea was freely, fairly, and understandingly made. Because this record reveals no evidence of Schow being misled, coerced, mistreated, or unfairly taken advantage of and his plea was freely, fairly, and understandingly made, we hold that there was no abuse of discretion by the trial court when it denied his motion to withdraw his plea. Second, Schow contends the district court erred when it said he had to disprove the convictions that Schow thought were incorrect. When there is an objection to a criminal histoiy score, the burden of proof is upon the State to prove the score by a preponderance of die evidence. But a trial court is permitted to take judicial notice of a defendant’s PSI report filed in a previous case without objection, instead of requiring the State to produce evidence to establish the disputed portion of the criminal history. Since that is the procedure followed by the district court in this case, we find no error by the court when it gave Schow a chance to prove any errors in the history. Background Facts Schow pled guilty to one count of criminal threat, a severity level 9 felony crime, in exchange for the State dismissing a second count and a recommendation for probation if he was eligible under the Kansas sentencing guidelines. At the plea hearing, the district court informed Schow that his minimum and maximum prison sentence would be 5 to 17 months. After the defense stated that it was believed that Schow had a criminal history score of D, the district court then advised Schow that his probation sentence could be 11 to 13 months with the caveat that the sentencing judge may decide against imposing probation. Schow’s counsel conferred with him regarding this information, and Schow responded, “Yes, your honor, that is fine.” The district court continued to convey to Schow the consequences of his plea; Schow acknowledged that he understood and pled guilty to count I. Prior to sentencing, Schow’s PSI report showed that he had three adult person misdemeanors. The source of these misdemeanors came from Schow’s prior PSI report. Under the sentencing rules these misdemeanors were aggregated and converted into an adult person felony. This additional felony increased Schow’s criminal history score from the anticipated D to B, making Schow ineligible for presumptive probation. Schow objected to entries 4 and 5 of his PSI report, which were convictions for domestic battery that occurred in 1992. Schow claimed that these entries were incorrect since he possessed only one conviction (not two) for domestic battery. Accordingly, Schow alleged that the State had the burden to produce evidence to show that both convictions existed. The district court requested the State to submit certified copies of those questioned convictions. But at a later proceeding, the court reconsidered its position and held that the State had satisfied its burden when it showed that Schow had adopted his prior PSI report without objection. The court went on then and gave Schow the opportunity to refute the two convictions, which Schow was unable to disprove. Accordingly, Schow moved to withdraw his plea. After reviewing Schow’s motion, the district court determined that at the time of the plea agreement both parties mistakenly believed that Schow’s criminal history score fell within presumptive probation. However, at the plea hearing, the district court noted that it had independently advised Schow of the consequences of his plea and of his maximum penalties under the guidelines. Therefore, the district court ruled that Schow’s plea of guilty was voluntary and denied Schow’s motion. The district court then sentenced Schow within the presumptive prison sentence of 14 months. In this appeal, Schow asserts that he relied upon the parties’ belief that his criminal history score was D when he entered into his plea agreement. Therefore, when his prior PSI entries increased his criminal histoiy score to B, Schow argues that this outcome constituted sufficient good cause for the withdrawal of his plea. Alternatively, Schow claims that the district court erred in failing to require the State to prove the existence of his prior PSI entries of 4 and 5 after he made his objections. Instead, Schow contends that “a fair[er] result would [have been] for the trial court to allow [Schow] the option to withdraw tire plea,” and requests this court to rectify this alleged error. Standard of Review The rule applicable to this case is clear. “A plea of guilty . . . , for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A. 2006 Supp. 22-3210(d). In exercising its discretion under the good cause shown standard, “the trial court should evaluate whether ’(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.’ [Citation omitted.]” State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Mutual Mistake Insufficient Reason to Permit Plea Withdrawal Three cases must be examined in order to solve this problem. They are: State v. Ford, 23 Kan. App. 2d 248, 930 P.2d 1089, rev. denied 261 Kan. 1087 (1997), State v. Haskins, 262 Kan. 728, 942 P.2d 16 (1997), and State v. Baldwin, 28 Kan. App. 2d 550, 18 P.3d 977, rev. denied 271 Kan. 1038 (2001). In Ford, the defendant relied upon the State’s representation that he had only one prior person felony on his record when he entered a plea of guilty. But, the defendant’s PSI report demonstrated that he had two previous person felonies, which removed the possibility of receiving a presumptive probation sentence. The defendant moved to withdraw his plea, which the district court denied. At the motion hearing, Ford admitted that he was aware of his two felonies; he stated, however, that he did not understand whether they were nonperson or person felonies. On appeal, Ford argued that his plea was not “intelligently” made because he relied on the State’s representation regarding his criminal history at the time he entered into his plea. This court responded that there was “no recourse for a plea uninteUigently made.” 23 Kan. App. 2d at 252. This approach was reaffirmed in State v. Prater, 31 Kan. App. 2d 388, 396-97, 65 P.3d 1048, rev. denied 276 Kan. 973 (2003). Prater held that the lack of understanding on the defendant’s part of his criminal history was not a valid reason to withdraw the plea. 31 Kan. App. 2d at 396-97. In Haskins, the defendant pled guilty, expecting that he would receive presumptive probation because both he and the State believed that his criminal history score was F. The PSI report, however, revealed that his criminal history score was C because the prior juvenile adjudication, which both parties mistakenly thought was a nonperson felony, constituted a person felony. Therefore, under the criminal history score of C, the trial court sentenced the defendant to a term of imprisonment, stating that the defendant knowingly entered a guilty plea despite the mistaken belief of his criminal history score. Haskins directly appealed his sentence, claiming that the State violated the plea agreement when it informed the district court that the defendant’s criminal history score was C instead of F. Haskins first determined that no plea agreement existed between the defendant and the State. With that in mind, the court next addressed “whether the defendant knowingly entered into a guilty plea, even though he (and the State) were mistaken about his criminal history score at the time of the plea.” 262 Kan. at 731. Haskins held that the trial court’s findings were supported by substantial competent evidence because: (1) defendant was aware of the maximum penalties that he could receive if he pled guilty; (2) defendant knew that the sentencing court was not bound by any plea agreement or recommendation; (3) defendant understood that his sentence would be fairly substantial; and (4) defendant was not a stranger to the judicial system. 262 Kan. at 731. Therefore, Haskins concluded that “the defendant knowingly entered a guilty plea, even though he was mistaken about his criminal history score.” 262 Kan. at 732. In Baldwin, this court again affirmed the district court’s decision to deny a defendant’s motion to withdraw his plea. 28 Kan. App. 2d 552. Based on the mistaken belief that his criminal history score was a F, the defendant entered into his plea agreement to avoid the possibility of a prison term. In reality, the defendant’s criminal history score was actually a G and would have automatically entitled the defendant to presumptive probation. As a result, Baldwin moved to withdraw his plea which was denied. Baldwin reviewed the record and determined that the defendant was represented by competent counsel; that he was not misled, coerced, mistreated, or unfairly taken advantage of; and that his plea was freely, fairly, and understandingly made. Therefore, Baldwin held that the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea. 28 Kan. App. 2d at 552. With these cases in mind it is clear what should be done in this case. Simply put, mutual mistake of a defendant’s criminal history score, standing alone, is insufficient to justify withdrawal of a plea. Furthermore, Schow fails to provide any evidence, pertaining to the three factors set forth in Edgar, that would persuade us that the district court abused its discretion when it denied Schow’s motion. First, Schow does not allege that he was not represented by competent counsel. And the record does not suggest otherwise. Second, Schow fails to show that he was misled, coerced, mistreated, or unfairly taken advantage of, when he entered into his plea agreement. Here, the plea agreement expressly stated twice that the State would recommend a probation sentence if Schow was eligible. Third, Schow’s plea was fairly and understandingly made. The district court advised him of his maximum sentence; the district court informed him that the sentencing court was not bound to the State’s recommendation of probation; and the district court was aware that Schow’s counsel separately conveyed this information to Schow, to which Schow replied, “Yes, your honor, that is fine.” This court has held that when “there is a mutual mistake as to defendant’s criminal history score, the trial court is obligated to sentence defendant on his true criminal history score.” Baldwin, 28 Kan. App. 2d at 552. The sentencing court here fulfilled this obligation. The district court did not abuse its discretion by finding that the mutual mistake of a criminal history score did not constitute good cause to withdraw Schow’s plea. Judicial Notice Proper Our statutes about objections to criminal histories are clear. When a defendant has filed an objection to his criminal history classification, “[t]he burden of proof shall be on the prosecution officer regarding [the] disputed criminal history issues.” K.S.A. 21-4724(c)(4). The burden of proof is by a preponderance of the evidence. K.S.A. 2006 Supp. 21-4715(a) and (c). But, a trial court is permitted to “take judicial notice of a defendant’s presentence report filed in a previous case without objection instead of requiring the State to produce evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” State v. Hobbs, 276 Kan. 44, Syl. ¶ 8, 57, 71 P.3d 1140 (2003). The Supreme Court held that the trial court was permitted to take judicial notice of defendant’s prior PSI report that included a 1994 burglary. Also, K.S.A. 2006 Supp. 21-4714(f) provides that “the court can take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993.” The dissent disagrees with the Hobbs decision, saying it reads too much into the language of K.S.A. 2006 Supp. 21-4714(f). But the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). Basic to all of this is the view that the important consideration in this type of dispute is the accuracy of a criminal history calculation: “If a mistake is made in a PSI criminal history report, whether it be in favor of the defendant or in favor of the State, the mistake is not etched in stone for the remainder of time. A sentencing court can take judicial notice of an earlier PSI criminal history report for a particular defendant, but if either party objects to the accuracy of the prior [criminal history ] report the objection must be resolved, by the sentencing court.” (Emphasis added.) State v. Welty, 33 Kan. App. 2d 122, 126, 98 P.3d 664 (2004) (reviewing whether collateral estoppel precludes a sentencing court from including in a defendant’s criminal history a prior conviction which was overlooked in a previous PSI criminal history report, and holding that it does not unless a judgment on the merits has taken place). Here, the district court determined that it would take judicial notice of Schow’s prior PSI report but provided Schow the opportunity to dispute that action. Schow declined the opportunity and filed his motion to withdraw his plea instead. We find no error here. Affirmed.
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The opinion of the court was delivered by McFarland, J.: This is a dispute between plaintiffs Kenneth E. and Barbara Bailey, parents of a handicapped child, Kurt E. Bailey, and defendant Unified School District No. 345 concerning the latter’s determination the child’s free appropriate public education is residential placement at the Kansas State School for the Visually Handicapped (K.S.S.V.H.). The parents demand Kurt continue his mainstream education in the local public school system. The Baileys were provided a due process hearing pursuant to K.S.A. 72-972. The parties presented their evidence, and the hearing examiner upheld the school district’s determination K.S.S.V.H. was an appropriate placement for the child. Pursuant to K.S.A. 1982 Supp. 72-974(b) the Baileys appealed the hearing examiner’s decision to the State Board of Education. The State Board of Education reviewed the 700-page transcript and exhib its and held a review hearing wherein arguments of counsel were heard. The Board upheld the decision of the hearing examiner. The Baileys appealed the decision of the Board to the district court pursuant to K.S.A. 1982 Supp. 72-974(c). No additional evidence was submitted to the district court and, based on the record from the administrative proceeding, the district court upheld the decision of the Board, finding the same to be “supported adequately and fully” by the record. The Baileys appeal to this court from the district court decision. Two issues are presented on appeal. The first relates to alleged district court error in excluding evidence and the second relates to whether the district court erred in finding there was substantial evidence to support the Board’s decision. The exclusion issue may be stated as follows. Did the district court err in refusing to admit additional evidence offered by the Baileys after the case had been submitted to the court for determination? On January 3, 1983, the parties presented their oral arguments to the district court. Four days later, January 7, 1983, plaintiffs’ attorney filed a motion to submit additional evidence which stated in pertinent part: “Movant shows this Court: “1) That certain evidence relevant to the resolution of the issues before the Court was not adduced at the due process hearing below; “2) That the evidence is readily available and its submission is not made for the purposes of delay; and, “3) Applicable federal law authorizes the taking of additional evidence by this Court at this stage of the proceeding.” The district court, in its Memorandum Decision filed on January 18,1983, denied plaintiffs’ motion. In so doing the court stated: “Certain preliminary matters require initial determination. First, subsequent to the submission of this case for decision, counsel for appellant has moved this Court for an order permitting the introduction of additional evidence. No additional evidence was presented in the appeal before the State Board and no additional evidence was presented to this Court prior to the submission of this cause for decision. This Court’s review is on the record, and further, the motion comes too late — the matter being now concluded.” The “applicable federal law” referred to in the Bailey motion is 20 U.S.C. § 1415(e)(2), a part of the Education for All Handicapped Children Act of 1975 (20 U.S.C. § 1401 et seq.) 20 U.S.C. § 1415(e)(2) provides: “(2) Any party aggrieved by the findings and decision . . . shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States .... In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” (Emphasis supplied.) The Baileys interpret 20 U.S.C. § 1415(e)(2) as carte blanche authority to submit additional evidence at any time before the decision by the district court. We do not agree. The purpose of the “additional evidence” provision of 20 U.S.C. § 1415(e)(2) was discussed in Anderson v. Thompson, 495 F. Supp. 1256 (E.D. Wis. 1980), aff'd 658 F.2d 1205 (7th Cir. 1981). In Anderson there was a three-year interim between the administrative decision relative to the handicapped child’s needs and the court hearing on the appeal therefrom. The school district argued the court should be limited to reviewing the record from the state administrative hearing. In rejecting the school district’s contention, the United States District Court stated: “[Tjhere would be little purpose served by freezing the evidence at the moment in time when the final state administrative decision was rendered. In view of the rate at which any child’s needs may change, there would be little purpose served by a court proceeding which refused to take into account current evidence of the child’s needs.” 495 F. Supp. at 1261. Continuing: “Without considering such current evidence of the child’s needs as the parties choose to offer, the court would be unable adequately to meet that responsibility [determination of whether suitable specialized education is provided]. Thus, in this case all of the evidence presented during the state administrative hearing and all of the evidence presented in this action during May and June 1980 will be considered as it bears upon [the child’s] current needs and the suitability of a current educational placement and program for her.” 495 F. Supp. at 1261. We interpret the “additional evidence” provision of 20 U.S.C. § 1415(e)(2) as applying only to evidence offered at the time of the district court hearing. To require a court to consider evidence submitted at any time prior to decision could destroy orderly determination of the issues and final determination could be postponed indefinitely by a party who believed the decision might be unfavorable. No proffer of evidence was made to the district court and no reason has been espoused as to why the “additional evidence” could not have been introduced at the time of the hearing. Indeed, even on appeal we have no information as to the nature of such “additional evidence.” We find no error or abuse of discretion in the district court’s refusal to permit the introduction of additional evidence after the hearing had concluded. The second issue is whether there was substantial evidence to support the State Board of Education’s decision. The parties have agreed the appropriate standard of review to be applied by the district court in this proceeding is the substantial evidence test. In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), 28 A.L.R.3d 472, this court enunciated a three-pronged test for judicial review of administrative actions. “A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.” Syl. ¶ 1, (Emphasis supplied.) “In reviewing a district court’s judgment . . . this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court,” Syl. ¶ 2. Recently, in Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 630 P.2d 1131 (1981), this court defined substantial evidence as: “The deliberation of a reviewing court on application of the ‘substantial evidence’ test is analogous to that of a trial court which considers whether to take a case away from a jury by sustaining a motion for a directed verdict. ‘Substantial evidence’ has been defined as evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion, Jibben v. Post & Brown Well Service, 199 Kan. 793, 433 P.2d 467 (1967).” 230 Kan. at 172. See also Ryan, Judicial Review of Administrative Action—Kansas Perspectives, 19 Washburn L.J. 423, 430-31 (1980). The portion of the district court’s memorandum decision relative to this issue states: “Turning to the remaining issue, the sufficiency of the evidence, the Court is mindful of its role in these proceedings. This appeal is in accordance with K.S.A. 60-2101(d). Under that statute, this Court is not free to make independent findings and conclusions nor is it free to review this cause de novo. The sole jurisdiction of this Court is to determine (1) whether the State Board acted arbitrarily, fraudulently or capriciously; (2) whether the State Board’s order is substantially supported by competent evidence; and (3) whether the order of the Board was within the scope of its authority. In connection with points 1 and [3], no contentions are raised by appellant and no determination is necessary. “Without unduly burdening this record, the Court has reviewed in detail the findings and conclusions of the hearing officer for the State Board, Ray D. Siehndel, dated November 24, 1982, and fully concurs therein. The record is replete with evidence adequate to support the careful findings of the capable hearing officer who undertook to resolve these rather difficult issues in the first instance. “Although this Court is sympathetic with the parents in this cause who undoubtedly desire that their child remain at home for his education, the fact remains that those most knowledgeable in these subjects conclude his best opportunities lie elsewhere. Although there is difference of opinion on this point contained in the record, the function of this Court is not to weigh evidence but to determine only if all conclusions reached are supported by it. There can be no doubt that such conclusions are supported adequately and fully . . . .” The only challenge before us as to the sufficiency of the evidence relates to the ultimate determination by the school district that residential placement at the Kansas State School for the Visually Handicapped (K.S.S.V.H.) is an appropriate educational program for Kurt. Kansas is a participating state in the federal Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. As such, Kansas is required by 20 U.S.C. § 1412(5) to establish: “[Procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily . . . .” See also 34 C.F.R. § 300.550 (1982). To assure compliance with the federal act, a participating state must have a “state plan” submitted to and approved by the United States Secretary of Education (formerly Commissioner of Education), which demonstrates the State “has in effect a policy that assures all handicapped children the right to a free appropriate public education” (20 U.S.C. §§ 1412[1] and 1413). For an excellent discussion of the history, purposes, requirements and operation of the Education for All Handicapped Children Act of 1975, see Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 73 L.Ed.2d 690, 102 S.Ct. 3034 (1982). For our purposes herein, it is sufficient to say Kansas has an approved state plan which establishes the same “mainstream” preference enunciated by 20 U.S.C. § 1412(5). See Menninger & Dittmeier, The Law and Handicapped Persons: Achieving Equality Through New Rights, 47 J.K.B.A. 181, 182-83 (1978). We turn now to the record in this case. Kurt Bailey was born June 6, 1966, visually impaired. His mother, Barbara Bailey, and his sister are also visually impaired. Kurt’s father, Kenneth E. Bailey, is the only normal sighted family member. Tragically, Kurt’s vision has deteriorated throughout his childhood. At this point Kurt is considered legally blind and his medical prognosis is total blindness within a few years. There is no medical treatment which can improve his vision. Kurt also suffers from hearing disabilities and emotional difficulties, the latter arising primarily by virtue of the inability of Kurt and his family to accept and cope with the child’s blindness. Kurt has normal intellectual ability. Defendant school district has worked with Kurt and his family for over ten years. In addition to special education, the school district has provided Kurt and his family counseling services with the Menninger Foundation. The school district has frequently consulted with experts from K.S.S.V.H. as to how best to tailor a program suited to Kurt’s very special needs. The boy’s multiple handicaps, coupled with normal intellect, make his needs unique in the district. Kurt was “mainstreamed” in regular classes during his junior high school years and the district supplied many special services to him including a qualified teacher to sit with him in the regular classes and provide assistance. The school district also arranged for Kurt to obtain special mobility training at the State Rehabilitation Center for the Blind, a program he would normally have been ineligible for due to his youth. One of the experts testifying for the school board aptly described the school district’s efforts to assist Kurt as “herculean.” The school district evaluated Kurt’s needs in consultation with various outside experts in the field and finally concluded enrollment in a regular high school would not be an appropriate education program for Kurt after completion of junior high. Various factors were considered such as: (1) the open setting of the high school with attendant higher noise levels which would increase his difficulty of hearing what was said in class; (2) increased mobility problems inherent in attending classes in the high school; (3) the diversity of subjects offered in the high school which would greatly complicate assignment of qualified teachers to sit with him in each class and provide special assistance (the total cost of mainstreaming him in high school was estimated at $187,000 per year); and (4) Kurt’s major deficiencies in self-help and social skills including the absence of peer friends. The evidence showed Kurt had advanced academically considerably beyond his ability to function as a reasonably self-sufficient human being. Major deficiencies lie in various aspects of the important business of living. Unfortunately, his family has been unable or unwilling to assist Kurt in maturing and learning to live with his handicaps. The resultant emotional problems surface in the exhibition of considerable inappropriate behavior in school. Kurt’s parents are adamant he should continue to be mainstreamed in the local public school system and presented evidence he could receive some benefit from the public schools. The district court concluded the state board’s affirmance of the hearing examiner’s ruling in favor of the school district’s recommended K.S.S.V.H. placement was “supported adequately and fully” by the evidence contained in the record. We agree. If Kurt is to grow and mature, certainly he must receive academic training. Perhaps even more importantly, Kurt must be assisted in accepting his blindness and must learn the self-help skills necessary to function. K.S.S.V.H. has the setting, the program and the experienced staff to assist Kurt in all facets of his special needs and clearly is an appropriate educational placement within the purview of the applicable state and federal laws. We conclude the district court did not err in finding the decision of the State Board of Education was supported by substantial competent evidence. We have disposed of all issues raised by the appellants. However, there is one matter which was not raised by the parties which causes the court some concern. The parties have agreed the appeal from the State Board of Education was pursuant to K.S.A. 1982 Supp. 72-974(c) which is a part of the Special Education for Exceptional Children Act, K.S.A. 72-961 et seq. K.S.A. 1982 Supp. 72-974(c) provides: “(c) Any party to a hearing provided for by the state board may appeal the decision to the district court in the manner provided by K.S.A. 1982 Supp, 60-2101, and amendments or supplements thereto.” K.S.A. 1982 Supp. 60-2101 referred to in K.S.A. 1982 Supp. 72-974(c) is the general administrative review statute and therefore, absent any other considerations, the Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, three-pronged test for judicial review would be applicable to appeals thereunder' — 1 including the substantial evidence test. Throughout these proceedings the parties have concurred the applicable test on judicial review herein is the substantial evidence test. However, the first issue in this appeal relates wholly to a provision of federal Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 etseq. while the second issue relies on the federal act in part. 20 U.S.C. § 1415(e)(2) is reiterated in pertinent part as follows: “(2) Any party aggrieved by the findings and decision . . . shall have the right to bring a civil action . . . pursuant to this section ... in any State court of competent jurisdiction or in a district court of the United States .... In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” (Emphasis supplied.) While noting the correct standard for civil actions under 20 U.S.C. § 1415(e)(2) is preponderance of the evidence, the United States Supreme Court in Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, has held this does not mean á court may substitute its judgment for that of the state educational agency. In construing 20 U.S.C. § 1415(e)(2), the court, through Justice Rehnquist, observed: “Thus the provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP [individualized educational program, see 20 U.S.C. § 1401(19)] would be frustrated if a court were permitted simply to set state decisions at nought. The fact that § 1415(e) requires that the reviewing court ‘receive the records of the [state] administrative proceedings’ carries with it the implied requirement that due weight shall be given to these proceedings. And we find nothing in the Act to suggest that merely because Congress was rather sketchy in establishing substantive requirements, as opposed to procedural requirements for the preparation of an IEP, it intended that reviewing courts should have a free hand to impose substantive standards of review which cannot be derived from the Act itself. In short, the statutory authorization to grant ‘such relief as the court determines is appropriate’ cannot be read without reference to the obligations, largely procedural in nature, which are imposed upon recipient States by Congress.” 458 U.S. __, 73 L.Ed.2d at 712. In Town of Burlington v. Department of Ed., Etc., 655 F.2d 428 (1st Cir. 1981), a United States District Court was called upon to pass on a state department of education’s determination holding plaintiff should reimburse a parent for the cost of special education for a handicapped child. Operating under Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq., the district court held, under the state law substantial evidence standard, the actions of the state education department should be affirmed. On appeal the First Circuit Court of Appeals vacated and remanded, holding, as the case was being determined under the federal law, the correct standard of judicial review of an administrative action concerning a handicapped child’s education was preponderance of the evidence. In so holding, the court declared: “We hold that the district court erred in granting summary judgment for the defendants under state law because we conclude that state law cannot be applied when review under federal law is sought. By its terms 20 U.S.C. § 1415(e)(1) provide that decisions by the state educational agency ‘shall be final, except that any party’ has judicial appeal rights under 20 U.S .C. § 1415(e)(2). That subsection provides for review in state or federal court. It also sets forth the procedure and standards for this review: ‘In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.’ Id. “This federal specification for review, when invoked, seems to us designed to occupy the field over an inconsistent state provision.4 Here the arguably appli.cable state review provision — part of the state’s general administrative procedure legislation — calls for, inter alia, judicial review governed by the substantial evidence standard. Mass. Gen. Laws Ann. ch. 30A, § 14. This standard does conflict with the federal standard; we can imagine many judicial reviews that would uphold an agency decision as based on substantial evidence but that would reach a different result were new evidence to be taken and judged under the more rigorous ‘preponderance of the evidence’ standard.” 655 F.2d at 431. (Emphasis supplied.) Footnote 4 in the preceding Burlington quote is interesting. It states: “We need not decide whether the federal review provision would have preemptive force when the only aggrieved party seeks relief solely under state law since here the Town has invoked 20 U.S.C. § 1415. It is possible that an aggrieved party might for financial or other reasons be satisfied with the more limited judical review available under state law; conceivably the federal policy embodied in § 1415 would not be infringed when willingly waived by its beneficiary.” 655 F.2d at 431 n. 4. The first issue in this appeal was concerned exclusively with the additional evidence provision of 20 U.S.C. § 1415(e)(2). The preponderance of the evidence provision is contained in the same sentence of 20 U.S.C. § 1415(e)(2). Accordingly, the parties must have been aware of its existence but proceeded under state law. The preponderance of the evidence test, of necessity, involves weighing of the evidence — which the trial court did not do in this case. However, the evidence before the trial court consisted wholly of the record from the administrative proceedings. Under such circumstances, this court is on an equal footing with the district court in applying the preponderance of the evidence test. We have carefully reviewed the record and conclude under either the substantial evidence test or preponderance of the evidence test the decision of the State Board of Education should be upheld. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Prager, J.: This is an action brought by the widow and child of Dennis Balagna to recover damages for wrongful death. The decedent, Dennis Balagna, was killed when the sides of a trench caved in on him while he was working at a construction site. The defendants are: (1) The architect-engineers, Van Doren-Hazard-Stallings and their agent, Dallas W. Freeborn, hereinafter referred to as Van Doren or the Engineers; (2) the landowners— Shawnee County and Shawnee County Main and Lateral Sewer District No. 33, hereinafter Referred to as the County; and (3) the independent contractor and employer of Dennis Balagna, M. W. Watson, Inc. The district court granted the separate motion of each defendant for summary judgment, and plaintiff have appealed. Most of the essential facts in the case are not in dispute and the trial court found them to be as follows: 1. Shawnee County entered into a written contract with M. W. Watson, Inc., for the construction of a sewage disposal facility known as Shawnee County Main and Lateral Sewer District No. 33, Waste Treatment Lagoons. The contract was executed April 18, 1978, and consists of pages C-l and C-2 of the Project Manual. The Standard Technical Specifications and General Clauses for streets, sidewalks, sewers and miscellaneous construction promulgated by the City of Topeka, Kansas, dated August 1977, were made a part of the specifications for Sewer District No. 33 along with the special conditions and specifications contained in the Project Manual. 2. Plaintiffs’ decedent, Dennis Balagna, was an employee of the contractor working at the construction site on the sewer project in question. On June 28, 1978, Balagna was killed when the unshored and unbraced walls of a sewer trench collapsed. The trench where Balagna was standing was approximately five to ten feet deep. No employee of the County was present at the jobsite on the aforesaid date. 3. Specifications incorporated into the contract between the Contractor and County required the Contractor to follow certain safety precautions in the trenching as set forth in the Associated General Contractors of America (AGC) Manual of Accident Prevention and OSHA regulations. These regulations required that the trench in which Balagna was killed be shored. 4. The County did not actually direct or supervise the employees of the Contractor in the performance of their work. 5. Van Doren-Hazard-Stallings, the Engineers, contracted with defendant Shawnee County to prepare plans and specifications for the sewer project in question which it did. The County did not supervise or advise the Engineers in designing the plans and specifications for the project. During the construction phase of the project, no employee of the County undertook actual supervision of the Engineers. The contract between the Engineers and the County required that the Engineers review construction operations for compliance with the plans and specifications. It further provided that Engineers receive compensation for inspection services. The Engineers, as inspectors, in the course of the construction required the Contractor to replace certain reinforcing steel and to redo some compaction work. 6. Regarding the responsibilities of the Engineer, (defined by the Project Manual as the Shawnee County Engineer), the Standard Technical Specifications provided that the County Engineer should make corrections and interpretations as may be deemed necessary for the fulfillment of the intention of the contract documents. It further provided that the County Engineer should have the authority to regulate the amount of work which may be open or under construction in advance of the completed portion of the work. The sequence of construction was to be approved by the County Engineer prior to construction if not covered by the plans and specifications. Any substantial deviation in the sequence was to be approved by the County Engineer. Such specifications also provided that the County Engineer could order suspension of the work or any part of it when due to prevailing inclement weather, temperature or any other condition whereby the quality or durability of the work could be adversely affected. They further stated that the County Engineer could inspect all materials and equipment used and all work done under the contract. In connection with such inspections, the County Engineer was to have access to all parts of the work, and the Contractor was to furnish information deemed pertinent by the County Engineer relating to the work and materials. No materials or equipment could be used in the work until they had been examined and approved by the County Engineer. 7. With respect to the right of the County to suspend or terminate the contract, the Standard Technical Specifications provided that should it be determined that the Contractor be intolerably negligent or slow in the prosecution of the work or should the Contractor consistently disregard laws, ordinances, regulations or instructions of the County Engineer, or otherwise be guilty of any substantial violation of the provisions of the contract documents, the County upon determination that sufficient cause existed, could terminate the contract without prejudice to any other right or remedy upon determination that the Contractor was not in compliance with provisions of the contract documents, written notice to be served upon the Contractor to the effect that the contract be terminated within ten (10) days unless the Contractor has complied. Such specifications also provided that the County should have the right to make alterations and modifications in the plans and specifications either before or after the beginning of the construction without affecting the validity of the contract and the performance bond. 8. The Standard Technical Specifications provide in Section 2, Excavation, Trenching and Backfilling, that “[t]he Contractor’s proposed methods and procedures for performing these excavating and dewatering operations shall conform to the applicable provisions of the AGC Manual of Accident Prevention and OSHA regulations. The Contractor shall assume full responsibility for satisfactory performance of the work and the safety of the work and/or working personnel.” (Emphasis supplied.) 9. Paragraph 2 of the General Clauses of the Standard Technical Specifications provides under subparagraph (m) the following: “The Contractor shall indemnify and save harmless the Owner and all its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received or sustained by any person, persons or property caused by the Contractor or his employees or by or in consequence of any neglect in safeguarding the work, or through the use of unacceptable materials in constructing the work or by or on account of any act or omission, neglect or misconduct of the Contractor or by or on account of any claims or amounts recovered by any infringement of patent, trademark or copyright, or from any claims or amounts arising or recovered under the ‘Workman’s Compensation Law’, or any other law, ordinance, order or decree, and so much of the money due the Contractor under and by virtue of his contract, as shall be considered necessary by the owner, may be retained or, in case no money is due, his surety shall be held until such suit or suits, action or actions, claim or claims for injuries or damages as foresaid shall have been settled and satisfactory evidence to that effect furnished to the owner.” 10. In Article IV of the contract with Shawnee County dated December 15, 1977, the Engineers agreed: “1. To furnish personnel to provide construction stakes for the Project. “2. To provide an inspector or inspectors, whenever work is in progress, to review construction operations for compliance with the plans and specifications. “3. To accept compensation for services set forth in Article IV, Sections 1 and 2, in such amounts and at such periods of time as hereinafter provided and such compensation shall be complete and sufficient payment for all work, equipment and materials used, and services rendered in connection with the described work.” (Emphasis supplied.) Other evidentiary matters covering the specific details regarding the tragic accident were developed through discovery depositions of witnesses who were either present at the time the accident occurred or who were experts with knowledge of the responsibilities and procedures involved in construction work comparable to that involved in this case. Those evidentiary matters will be discussed, where relevant, in the course of the opinion. Since this appeal arises from the trial court’s granting of each defendant’s motion for summary judgment, the general rules pertaining to summary judgment should be reviewed. A party against whom the motion is sought is to receive the benefit of all reasonable inferences and doubt that may be drawn from the facts under consideration. Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, 575 P.2d 507 (1978). The pleadings are to be liberally construed in favor of the party against whom the motion is sought. Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P.2d 449 (1974). Where genuine issues of material fact remain unresolved, the granting of summary judgment is improper. Kern v. Miller, 216 Kan. 724, 533 P.2d 1244 (1975). Summary judgment is proper only when the questions presented are questions of law based on undisputed facts. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 624 P.2d 971 (1981). If the facts are undisputed or only one reasonable conclusion can be reached from the facts as presented, then the court may apply principles of law to the facts and grant summary judgment. Goff v. American Savings Association, 1 Kan. App. 2d 75, 561 P.2d 897 (1977). With these principles of law in mind, we will consider the trial court’s granting of summary judgment to each of the defendants having due regard to the role which each played in the performance of the construction contract. Liability of the Architect-Engineers In regard to the Engineers, Van Doren and its employee, Dallas W. Freeborn, the basic issue presented is whether they can be held liable for the contractor’s failure to carry out the required safety practices in trenching operations at the jobsite either because of a duty existing under their written contract or because of the failure of Freeborn to take some appropriate action after his discovery that the safety procedures required for trenching operations under the contract were being violated. The duty and responsibilities of an architect-engineer are covered in a comprehensive opinion by Justice Holmes in our recent case of Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 662 P.2d 243 (1983). The basic holdings in Hanna are contained in the syllabus of that case which states as follows: “An architect, or other design professional, who contracts with an owner of property for the preparation of plans and specifications for the erection of a building and who agrees to be responsible for the general administration of the construction contract between the owner and the general contractor is not contractually responsible for the safety of the workmen on the jobsite unless such duty is specifically assumed in the contract.” Syl. ¶ 1. “Generally the duty of an architect to supervise or administer the construction work merely entails a duty to see that the building when constructed meets the plans and specifications for which the owner agreed to pay.” Syl. ¶ 2. “An architect who has contracted to supervise the construction of a building project may affirmatively or by his actions expand his contractual duties to include responsibility for safety practices on the jobsite. Factors to be considered in determining whether an architect has assumed such responsibility include (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of responsibility for safety practices; (6) authority to issue change orders; and (7) the right to stop the work.” Syl. ¶ 3. “As a professional, an architect cannot stand idly by with actual knowledge of unsafe practices on the jobsite and take no steps to advise or warn the owner or contractor.” Syl. ¶ 4. “For negligence to exist there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists there can be no negligence. Following Madison v. Key Work Clothes, 182 Kan. 186, 318 P.2d 991 (1957).” Syl. ¶ 5. “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself. Following Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765 (1960).” Syl. ¶ 6. In Hanna, the opinion of the court reviews the applicable law from various jurisdictions and concludes that the great weight of authority supports the rule that an architect does not, by reason of his supervisory authority over construction, assume responsibility for the day-to-day methods utilized by the contractor to complete the construction. The architect’s- basic duty is to see that his employer gets a finished product which is structurally sound and which conforms to the specifications and standards. Any duty that the architect may have involving safety procedures of the contractor must have been specifically assumed by the contract or must have arisen by actions outside the contract. In determining whether the architect’s contractual duty to supervise the construction includes the safety practices on the jobsite, the architect may intentionally, or impliedly by his actions, bring the responsibility for safety within his duty of supervision. The factors which would appear to be relevant in any case where an attempt is made to expand the architect’s liability beyond the specific provisions of the employment contract are set forth above in syllabus ¶ 3 of Hanna. Cases which have found liability on the part of the architect-engineer have usually turned upon specific facts creating a duty to the jobsite workmen. One of the factors stressed is the fact, that the architect-engineer has gained actual knowledge of the dangerous condition in carrying out his supervisory duties. See for example Caldwell v. Bechtel, Inc., 631 F.2d 989 (D.C. Cir. 1980). Other cases and law review articles on the subject are set forth in the Hanna opinion, 233 Kan. at 220. In Hanna, Justice Holmes stated that, if the architect-engineers had actual knowledge of unsafe practices, they should have taken some action in that case. However, in Hanna all evidence disclosed that they had not been advised of any such practices. Under, the circumstances the architects, Huer, Johns, were held not responsible for safety on the jobsite since that duty was placed upon the general contractor as specifically spelled out in the contract. In this case, plaintiffs advance several theories under which they claim the right to recover from the Engineers. They first maintain that the contract between the Engineers and the County required the Engineers to provide an inspector to review construction operations for compliance with the plans and specifications, and that the specifications, by referring to OSHA standards, specifically required shoring to be used in the trench where Balagna was working. Plaintiffs’ argument is that the failure of the engineer to see that shoring was used, as required by the specifications, created a cause of action in favor of the plaintiffs. The trial court held that the Engineers in this case did not generally assume control of the contractor’s methods or procedures in completing the job and, therefore, they cannot be held legally responsible for the trenching accident. We agree with the trial court that the contract between the Engineers and the County did not specifically place upon the Engineers the responsibility for the safety of the workmen on the jobsite. Such a result is required by the decision in Hanna. We must, however, consider the question whether the Engineers can be held liable on the theory that their inspector, Dallas W. Freeborn, having actual knowledge that the trenching operations were being carried out in violation of OSHA standards, had a duty to take some appropriate action to prevent injury to the employees of the contractor. We have considered the record in this case and concluded that there is evidence to show that the Engineers, Van Doren, through their employee, Freeborn, had actual knowledge of the safety standards requiring shoring in trenching operations and, furthermore, had actual knowledge that the prescribed safety precautions were not being followed by the contractor at the time the tragic accident occurred. In our judgment, this created a duty in the Engineers to take some reasonable action to prevent injury to the contractor’s employee, Dennis Balagna. Whether or not the Engineers acted reasonably under all the circumstances was a factual issue which should have been submitted to the jury in this case. Hence, the trial court erred in granting summary judgment in favor of the defendant, Engineers, and their agent, Freeborn. In arriving at this conclusion we note the following factual statements which are contained in the depositions: The contract documents and supplemental specifications for the construction of the sewer, including trenching operations, were prepared by the architect-engineers, Van Doren. The contract documents and specifications are contained in a project manual which was introduced into evidence in the case. Since defendant, Van Doren, actually prepared the project manual, which included the specifications covering safety precautions to be followed in trenching operations, it cannot be denied that they had knowledge of those safety specifications. Dallas W. Freeborn, Van Doren’s inspector at the construction site, was present on June 8,1978, when the accident occurred in the course of the excavation of a trench. Freeborn testified in his deposition that the standard technical specifications which were included in the construction contract documents in this case are usually incorporated into most construction contracts to be performed in the Topeka city limits. He agreed that the AGC manual of accident prevention, which requires shoring in trenching operations, was made a part of the construction contract. He stated that he had previously read OSHA regulations regarding trenching. He was the project engineer for Van Doren on this sewer treatment lagoon. He and another employee, Schmitt, prepared the plans with attached specifications. He was the only engineer at the scene on June 28, 1978, when the accident occurred. He had previously had no specific discussion about his inspection duties prior to his undertaking that job assignment, but he had been instructed orally that, if he found something was being done which was not in compliance with the plans and specifications, he was to tell the person in charge that the particular piece of.construction was not in compliance and that they would not be paid for it. Mr. Freeborn stated that, in a general way, he knew that the construction of a trench ten feet- in length and five feet deep made of clay on both sides would probably require some-shoring. On the morning of the accident, when he saw the trench in question, he knew that the trench should have shoring in it according to its dimensions. When he arrived at the site, a backhoe was in operation digging the trench. At the site he met Mr. Dinkel, an employee of the contractor, Watson, who was in charge of the work. He watched the excavation work for a few minutes and at one point saw two men in the trench. The two men had an engineer’s level which was used to determine that the trench was on a specific horizontal plane. One man (Balagna) had the level rod and was holding it at various points checking the grade. He saw the man holding the rod walk into the excavation. It was not necessary that the man be in the trench to determine that it was level. That same determination could have been made by a person standing at the top of the trench and holding the rod down from the top. At the time he saw the man in the trench, he noticed shoring or material for shoring lying on the top of the trench on the north side where he and Dinkel were standing. While he was there, a carpenter continued to bring more shoring material. Freeborn knew that the shoring materials were going to be used for excavation shoring in the trench. When questioned by counsel, he stated he knew that a man being in an unshored trench of that depth was in a dangerous situation, although, at the time, he did not give any particular thought as to whether it was dangerous or not. It is true that unshored trenches can be dangerous immediately after they are made. Freeborn was asked by plaintiffs’ counsel why he did not tell the man that was in the trench to get out of the trench until it could be shored. Freeborn’s response was, “That man’s boss was standing right there with me. It is not for me to tell him what to do.” Thus, Freeborn stated that he chose not to enforce the specifications regarding shoring in trenching operations, because that portion regarding safety involved methods the contractor chose to use to do a particular job and, “I don’t tell him how to do his work.” Freeborn admitted that, when he was there and reviewed the excavation work, he knew it was not in compliance with OSHA standards regarding shoring. He did not do anything because he felt it was the contractor’s duty, not his. He did not consider telling the worker to leave the trench because he never tells any of the workers to do anything. He had been instructed by his employer, Van Doren, that, as an inspector, he was only to inspect the work as to the end product. Specifically in regard to the OSHA regulations regarding trenching he testified as follows: “Q. And you observed the contractor not following them the day of Dennis Balagna’s death, June 28, 1978, didn’t you? “A. Yes, sir. “Q, And you took no steps to make sure he was told that they were not in compliance with that, did you, sir? “A. Yes, sir. “Q. You just stood there and let them be in a noncompliance state regarding safety regarding trenching compliance, is that correct? “A. That’s correct, sir. “Q. Why? “A. Because I am following the orders that I was given that we were not to be concerned with how the contractor did his work. “Q. As an engineer since ‘54, would you consider trench excavation ultrahazardous or inherently dangerous activity for workmen involved? “A. Possibly it could be. “Q. Why? “A. There’s always a chance it can cave in. “Q. Unless adequate preventions to eliminate that are complied with, is that correct? “A. Yes, sir.” The substance of Freeborn’s deposition testimony was that, if he had told the employee to get out of the trench, he would have been overextending his power as the inspecting engineer at the jobsite. There is also in the record the deposition of Earl Honigs, city engineer for the city of Topeka. Honigs manages the city engineering department and is responsible for site inspection regarding design and plans for city construction projects. He testified in his deposition that he was . familiar with the dangers to workmen in a trench if it is not properly shored. It was his opinion that, if shoring is called for in the specifications of the contract and shoring was not done, then the engineer may specifically address himself to the shoring because that is involved in work under the contract. It was his opinion that an inspecting engineer at the jobsite would have the power to suspend the work under a contract, if no shoring was in place in a trench being excavated where shoring was required by the contract. Honigs testified that, if he was at the scene and saw a man on more than one occasion walk into a trench where the shoring was lying at the top of the trench and where he knew there was a code violation, from his own personal experience he would have said something to the job supervisor. He would have asked the job supervisor what his intention was and whether he was aware of the conditions of the trench that then existed with a man in the trench. We have concluded from the deposition testimony set forth above that a legitimate issue of fact was present in the case whether Freeborn, as the inspecting engineer, acted reasonably under the circumstances to prevent injury to Balagna as an employee of the contractor. We, therefore, hold under the principles of law stated above and the facts developed on discovery, that the district court was in error in sustaining the motion for summary judgment filed on behalf of Van Doren and its employee, Dallas W. Freeborn. Liability of the Landowner The plaintiffs maintain that the trial court erred in entering summary judgment in favor of defendants, Shawnee County and Shawnee County Main and Lateral Sewer District No. 33. Shawnee County is the landowner which contracted with M. W. Watson, Inc., the contractor, to build the sewer project. The basic issue presented is whether Shawnee County, as owner, is liable for the negligence of M. W. Watson, Inc., the independent contractor. The well-established general rule in this state is that when a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the contractor. Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498 (1910); Reilly v. Highman, 185 Kan. 537, 345 P.2d 652 (1959); Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 487, 389 P.2d 766 (1964). The Kansas cases recognize that there are many exceptions and limitations to the foregoing rule, one of which is that an owner or contractee is responsible for injuries to a third party caused by work done by an independent contractor, where the contract directly requires the performance of work intrinsically dangerous, however skillfully done. The plaintiffs rely primarily on this exception which is known as the “inherently dangerous activity” doctrine. The doctrine is set forth in the Restatement (Second) of Torts § 427 (1965), in the following language: “§ 427. Negligence as to Danger Inherent in the Work “One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” The reporter’s note under § 427 in the Appendix to the original volume lists a number of situations in which the doctrine has been held applicable. Among those listed are included the following: Crop dusting and spraying insecticides; work involving excavation in or near the highway, where the excavation was left unguarded; work done above the highway or sidewalk, where something fell; work contemplating obstruction of the highway; installing safety doors on an elevator while it is in use; installing defective joists on a steel building frame; turning gas into mains before they were cemented; use of an acetylene torch near inflammable materials in repairing a building; repairing a skylight, with no arrangement for removal of loose iron, which was blown off; red hot rivets dropped into work being done below. Many cases are cited involving work of this type, some of which hold that the work was inherently dangerous with resulting liability to the contractee and other cases holding that work was not inherently dangerous, and, hence, the contractee was not liable. The basic issue which faces us is whether the trenching work in this case falls within the ambit of the inherently dangerous activity doctrine so as to create liability on the part of the landowner-contractee, Shawnee County, for the negligence of the contractor, M. W. Watson, Inc., in performance of the contract. In Reilly v. Highman, 185 Kan. at 541, the court states that on the question of what type of work is or is not considered to be inherently or intrinsically dangerous, courts have found no rule of universal application by which they may abstractly draw a line of classification in every case. In this regard, the court stated: “Generally speaking, the proper test is whether danger ‘inheres’ in performance of the work, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it. It is not enough that it may possibly produce injury. Stated another way, intrinsic danger in an undertaking is one which inheres in the performance of the contract and results directly from the work to be done— not from the collateral negligence of the contractor. (27 Am. Jur., Independent Contractors, § 39, p. 518; 57 C.J.S., Master and Servant, § 590, b. (1), p. 361, and the annotation at 23 A.L.R. 1084, 1095.)” The same test is recognized in Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. at 488. The plaintiffs in this case argue that trenching operations are inherently dangerous or, at the very least, a jury question remains as to whether such operations are inherently dangerous. We have no cases in Kansas on this point involving excavation or trenching operations. The cases in other jurisdictions are in conflict. In Cummings, Admx. v. Hoosier Marine et al., 173 Ind. App. 372, 363 N.E.2d 1266 (1977), the court held that trenching, when properly shored, is not inherently dangerous and that the failure to provide shoring was solely the responsibility of the subcontractor. In that case, the construction contract included specifications that shoring and bracing would be required for digging trenches. It was held that the developer, as property owner, was justified in presuming that such specifications would be followed and, there being no evidence that the owner had knowledge of the failure of the contractor to provide shoring, the landowner was not liable. In Smith v. Inter-Cty. Telephone Co., 559 S.W.2d 518 (Mo. 1977), the Missouri Supreme Court in a similar case reached the opposite conclusion, holding that the issue of whether trenching was an inherently dangerous activity was a fact question to be presented to the jury and that the jury could properly find that the landowner should have ensured that the trenches were shored during excavation operations. There also are a number of other jurisdictions which have ruled as a matter of law that trenching is not inherently danger ous. Hare v. Federal Compress and Warehouse Company, 359 F. Supp. 214 (N.D. Miss. 1973); Kemp v. Knox County, 556 S.W.2d 546 (Tenn. App. 1977); Oklahoma City v. Caple, 187 Okla. 600, 105 P.2d 209 (1940); Horn v. C.L. Osborn Contracting Co., 591 F.2d 318 (5th Cir. 1979). The distict court in this case found the authorities cited above to be both persuasive and determinative of the inherently dangerous activity issue. The trial court held as a matter of law, on the basis of the undisputed facts contained in the record, that the trenching operations involved in this case were not inherently or intrinsically dangerous, and that the exception to the general rule of nonliability set forth in Restatement (Second) of Torts § 427, and in the Kansas decisions discussed above does not apply. It thus held that Shawnee County and the Sewer District were not vicariously liable for failure of the independent contractor, M. W. Watson, Inc., to use shoring in the trenching operations in this case. We have concluded that the trial court reached the correct result on this issue. The digging of trenches is work performed every day under many types of construction contracts. Where proper precautions are taken, injuries should not result to workmen from the caving in of the sides of the trench. In our judgment, injuries from the caving in of ditches because of lack of shoring is the direct result of the negligence of the contractor in the performance of the excavation work. As an alternative theory, the plaintiffs further contend that Shawnee County breached another nondelegable duty by failing to require shoring and bracing of trenches under the so-called peculiar risk doctrine as set forth in Restatement (Second) of Torts § 416 (1965) which provides: “§ 416. Work Dangerous in Absence of Special Precautions “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.” Comment a. to § 416 states that there is a close relation between § 416 and § 427 as to dangers inherent in or normal to the work. The rules stated in these two sections have been applied more or less interchangeably in the same type of cases. The cases where the rule of § 416 is applied usually involve factual circumstances where the work is to be performed near public streets or highways. In considering the peculiar risk doctrine in this case, the trial court held that it was not applicable in view of the fact that there was no showing that any of the employees of Shawnee County had any intimate or detailed knowledge of the work being performed. The record clearly establishes that there was no employee of Shawnee County present during the trenching operations or any evidence to show that Shawnee County or its engineers had reason to anticipate that the independent contractor, M. W. Watson, Inc., did not intend to follow the safety requirements in performing the work. We agree with the trial court that the peculiar risk doctrine contained in § 416 of the Restatement should not be applied in this case. The plaintiffs further maintain that Shawnee County should be held liable on the basis of liability imposed upon a possessor of land for injuries to an invitee resulting from hidden dangers on the premises. Plaintiffs cite the traditional common-law rule that an owner or possessor of land who invites a person to enter upon the land owes a duty to that person to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. Under the rule, a possessor of land may be held liable to such invitee for an unsafe condition of land if the condition is known to the possessor and not to the invitee. The duty to keep premises safe for invitees has generally been applied only to defects or conditions which are in the nature of hidden dangers which an invitee does not know or could not discover in the exercise of ordinary care. There is no liability for a danger which is as obvious and well known to the person injured as it is to the owner. In the present case, the premises were in a reasonably safe condition at the time the contractor took possession, since no trenching existed at the time the premises were turned over to the contractor. The trenching without shoring or bracing was a condition created by the contractor. Under the circumstances, the trial court correctly rejected the contention of the plaintiffs that Shawnee County could be held liable on the theory that a possessor of land is liable to an invitee for a hidden danger. Finally, the plaintiffs contend that the trial court erred in holding that Shawnee County could not be held liable for failure to carry out its supervisory duties over the project. We find no error in this regard. It is clear from the record that Shawnee County did not direct or supervise the employees of M. W. Watson, Inc., in the performance of the construction work. Its employees were not personally involved in the actual construction of the project. Furthermore, there is no evidence to show that employees of Shawnee County exercised any supervisory duties over the consulting engineers. Shawnee County as landowner totally relied upon the architect-engineers to provide plans and specifications, and to protect its interests vis-a-vis the contractor. Under all the circumstances, it is clear from the record that Shawnee County did not control the manner in which the work was performed. There is nothing in the record to show any negligence on the part of Shawnee County or the Sewer District. On the basis of the rationale set forth above, we hold that the trial court did not err in granting summary judgment in favor of Shawnee County and Shawnee County Main and Lateral Sewer District No. 33 as a matter of law. Liability of the Contractor Finally, the plaintiffs contend that the trial court erred in dismissing the plaintiffs’ action against the contractor, M. W. Watson, Inc. The trial court denied plaintiffs’ claim against Watson on the ground that the Kansas Workmen’s Compensation Act provides the exclusive remedy for plaintiffs’ claims. The application of the workers’ compensation act to the fatal injury of Dennis Balagna was not in dispute. He was on the job when the accident occurred on June 28, 1978. The injuries he suffered arose out of and in the course of his employment with M. W. Watson, Inc. In their brief, the plaintiffs recognize the many Kansas cases which hold that no recovery can be had against an employer for injuries for which workers’ compensation is recoverable. They contend, however, that compensation, within the meaning of the workers’ compensation act does not include recovery of damages for such elements of damage as loss of companionship, society, and comfort from a husband and father. According to the plaintiffs, workers’ compensation includes only medical and funeral expenses and wages at the rate paid at the time of injury. They urge us to hold that the plaintiffs should be allowed in this action to recover compensation by way of damages for nonpecuniary loss and also compensation for Balagna’s lost earnings had he worked during a normal life expectancy. We reject the contentions of plaintiffs and hold that the trial court properly dismissed plaintiffs’ common-law action against M. W. Watson, Inc. Since the enactment of the workers’ compensation act, it has been held to be the exclusive remedy against the employer provided to the injured employee or his dependents. The employee or his dependents recover benefits under the act regardless of proof of negligence on the part of the employer. An argument similar to that presented in this case was made and rejected in Fritzson v. City of Manhattan, 215 Kan. 810, 528 P.2d 1193 (1974). We hold that the trial court properly dismissed the plaintiffs’ claim against M. W. Watson, Inc., and its judgment on that issue should be affirmed. For the reasons set forth above, the case is affirmed in part and reversed in part. The case is remanded to the trial court for further proceedings involving plaintiffs and defendants, Van Doren-Hazard-Stallings and Dallas W. Freeborn.
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The opinion of the court was delivered by Lockett, J.: This is an appeal by defendant labor union from judgment rendered against it for damages for personal injuries sustained by plaintiff. The injuries occurred during a lawful labor strike. The Court of Appeals reversed the trial court, see Hiestand v. Amalgamated Meatcutters & Butcher Workmen, 8 Kan. App. 2d 317, 656 P.2d 783 (1983). Appellee’s Petition for Review was accepted by this court. Major portions of the Court of Appeals opinion written by Judge Spencer are incorporated in this opinion. Of initial concern is whether the trial court properly instructed the jury as to the liability of the union for the tortious acts of its members committed during a lawful labor strike. Defendants requested an instruction which conformed in substance to the provisions of § 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106, which provides: “No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” Emphasis added. Notwithstanding, the trial court gave its instruction No. 10, which provides: “You are instructed that no officer, member of any organization, or organization, and no association or organization participating or interested in a labor dispute shall be held responsible or liable in any court of the United States for any acts of individual officers, members or agents except upon proof of actual participation in or actual authorization of any such acts or of ratification of such acts after actual knowledge thereof. The term ‘ratification’ means to approve and sanction.” Defendant asserts error by the trial court in deleting the word “clear” from its instruction No. 10, which in effect reduced the standard of proof of the union’s liability from a clear and convincing standard to one sustained by a preponderance of the evidence. Despite assertions to the contrary, the record before us does not reveal an objection made to instruction No. 10 as it was given. K.S.A. 60-251(fo) provides: “No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.” Although an alternative instruction to instruction No. 10 was provided and requested, a proper and timely objection under 60-251(h) was required. Apperson v. Security State Bank, 215 Kan. 724, 731, 528 P.2d 1211 (1974); Kiser v. Gilmore, 2 Kan. App. 2d 683, Syl. ¶ 5, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979). Accordingly, appellate review is limited to a determination of whether the instruction as given was clearly erroneous. “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.” Musil v. Hendrich, 6 Kan. App. 2d 196, Syl. ¶ 3, 627 P.2d 367 (1981).” It is argued that, by reason of § 6 of the Norris-LaGuardia Act, plaintiff cannot prevail as against the union by meeting only the ordinary burden of persuasion and to have given instruction No. 10, without the requirement of clear proof of actual participation, authorization or ratification of the tortious acts of the union members, was clearly erroneous. A labor union or its membership is not liable to persons who suffer financial losses as a result of peaceful and lawful labor activities. Courts have uniformly held that labor unions or their membership may be liable, under general principles of agency law, for the common law torts of their officers or members committed during a lawful strike, if the union officers or members authorized, participated or ratified the tortious acts. In 1932 the United States Congress enacted § 6 of the NorrisLaGuardia Act, 29 U.S.C. § 106. It was not until 1966 in a decision in Mine Workers v. Gibbs, 383 U.S. 715, 16 L.Ed.2d 218, 86 S.Ct. 1130 (1966), that the United States Supreme Court had occasion to indicate § 6 applies to federal court adjudications of common law tort claims arising out of labor disputes under state law. Under the standard set by the Act, the plaintiff in a civil suit is not required to satisfy the criminal standard beyond a reasonable doubt nor may he prevail under the ordinary civil burden of a preponderance of the evidence on the issue of participation, authorization or ratification. Plaintiff is required to prove by clear and convincing proof under § 6. In Mine Workers v. Gibbs, 383 U.S. 715, the United States Supreme Court stated: “This Court has consistently recognized the right of States to deal with violence and threats of violence appearing in labor disputes, sustaining a variety of remedial measures against the contention that state law was pre-empted by the passage of federal labor legislation.” 383 U.S. at 729. “We held in Brotherhood of Carpenters v. United States, 330 U.S. 395, 403, that ‘whether § 6 should be called a rule of evidence or one that changes the substantive law of agency ... its purpose and effect was to relieve organizations . . . and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization, without clear proof that the organization or member charged with responsibility for the offense actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration.’ ” 383 U.S. at 736; emphasis added. “Although the statute does not define ‘clear proof,’ its history and rationale suggest that Congress meant at least to signify a meaning like that commonly accorded such similar phrases as ‘clear, unequivocal, and convincing proof.’ Under this standard, the plaintiff in a civil case is not required to satisfy the criminal standard of reasonable doubt on the issue of participation, authorization or ratification; neither may he prevail by meeting the ordinary civil burden of persuasion. He is required to persuade by a substantial margin, to come forward with ‘more than a bare preponderance of the evidence to prevail.’ ” 383 U.S. at 737. In Brotherhood of Carpenters v. U.S., 330 U.S. 395, 403, 91 L.Ed. 973, 67 S.Ct. 775 (1947), it was held in reference to § 6 of the Norris-LaGuardia Act: “[I]ts purpose and effect was to relieve organizations, whether of labor or capital, and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization, without clear proof that the organization or member charged with responsibility for the offense actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration.” In Ramsey v. Mine Workers, 401 U.S. 302, 28 L.Ed.2d 64, 91 S.Ct. 658 (1971), the court stated: “The legislative history of § 6 was reviewed at length in United Brotherhood of Carpenters v. United States .... We have reviewed it again and find nothing to suggest the section means something different from what its language seems to say. Without laboring the matter . . . the simple concern of Congress was that unions had been found liable for violence and other illegal acts occurring in labor disputes which they had never authorized or ratified and for which they should not be held responsible. Congress discerned a tendency in courts to blame unions for everything occurring during a strike. Nor was the problem necessarily limited to labor unions. The straightforward answer was § 6, with its requirement that when illegal acts of any individual are charged against one of the major antagonists in a labor dispute — whether employer or union — the evidence must clearly prove that the individual’s acts were authorized or ratified.” 401 U.S. at 309-10. “In our view, § 6 requires clear and convincing evidence only as to the Union’s authorization, participation in, or ratification of the acts allegedly performed on its behalf.” 401 U.S. at 311. The issue is whether to follow § 6 of the Norris-LaGuardia Act, or the standard rules concerning burden of proof to establish vicarious liability. See Brown v. Wichita State University, 217 Kan. 279, Syl. ¶ 9, 540 P.2d 66 (1975), modified 219 Kan. 2, 547 P.2d 1015 (1976); Gomez v. Hug, 7 Kan. App. 2d 603, 613, 645 P.2d 916, rev. denied 231 Kan. 800 (1982). The Court of Appeals followed 29 U.S.C. § 106. The federal statute requires clear proof of actual participation in or actual authorization of or a knowing ratification of its members’ tortious acts before the union is held liable. The mere fact that Congress has power to legislate in regard to labor law does not exclude the right of the states to legislate on the same subject. There is concurrent power and the state may legislate until that power is actually exercised by Congress. Thus, a state may legislate upon matters which are local in character although embraced within the federal authority until federal authority has preempted the state from acting. The growth of the small local guilds of merchants and craftsmen into national and international unions and the corresponding growth of the small proprietorships to national and multi-national corporations with corresponding federal legislation and regulation have in effect preempted most labor disputes from the state to the federal courts. Federal courts must follow 29 U.S.C. § 106, but state courts are not bound by the clear, unequivocal, and convincing proof standard of 29 U.S.C. § 106. See Titus v. Tacoma Smeltermen's Union, 62 Wash. 2d 461, 383 P.2d 504 (1963); Buchanan v. Int’l Bhd. of Teamsters, 94 Wash. 2d 508, 617 P.2d 1004 (1980); Tulsa General Drivers, Etc., Union v. Conley, 288 P.2d 750 (Okla. 1955); United Brotherhood v. Humphreys, 203 Va. 781, 127 S.E.2d 98 (1962), cert. denied 371 U.S. 954 (1963). Some state courts have applied the Norris-LaGuardia Act. See Melancon v. United Ass’n of Journeymen, 386 So. 2d 669 (La. App. 1980); Sowels v. Laborers’ Union, 112 Mich. App. 616, 317 N.W.2d 195 (1981). Other state courts have interpreted state statutes similar to § 106 as requiring a greater burden of proof than under common law rules. United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 285 A.2d 330 (1971), cert. denied 404 U.S. 1016 (1972). See generally Annot., 36 A.L.R.3d 405. The adoption of the “clear proof’ standard is a matter of policy, since 29 U.S.C. § 106 applies only to federal courts. Arguments exist for the two alternatives: (1) Internal consistency within the state .is an argument for reversing the Court of Appeals. All rules relating to vicarious liability would remain standardized in state courts in Kansas. The law of vicarious liability would be consistent and understandable. (2) Consistency between our state and federal courts would be obtained by adopting the clear proof standard of § 6. The United States Supreme Court in Mine Workers v. Gibbs, 383 U.S. at 737, held 29 U.S.C. § 106 applied to federal court adjudications of state tort claims arising out of labor disputes. Forum shopping would not loom as a possibility. Plaintiffs would have no reason to commence actions in state courts attempting to avoid the clear proof standard of federal courts thereby bypassing Congressional intent. Defendant unions would have no reason to attempt removal to federal courts in an effort to obtain the added protection of the clear proof standard. In addition, consistency in the state and federal courts regarding the burden of proof would eliminate the injustice to those litigants having no right to federal jurisdiction. One may prevail in the state system but fail in the federal system under the same factual situation due to the different burdens of proof required. We recognize that a labor union or its membership may be held liable under the general principles of agency law for the tortious acts of its officers or its members during the course of a lawful strike. The burden of proof as to whether the tortious or illegal act occurred, whether the act proved amounted to a conspiracy, or whether the plaintiff s business was damaged is by a preponderance of the evidence. However, a union may not properly be held liable except on clear and convincing proof of actual participation in or authorization of such acts or of ratification of such acts after actual knowledge thereof. We adopt the clear proof standard of § 6 of the Norris-LaGuardia Act. Failure of the trial court to so instruct the jury in this case was clear error, which requires remand of this case for a new trial. Having so decided, other issues on appeal need not be addressed. Accordingly, we affirm the decision of the Court of Appeals, reverse the judgment of the district court and remand for a new trial on all issues.
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The opinion of the court was delivered by Miller, J.: This is an action by Frances Olson, individually and as administratrix of the estates of her parents, Willard and Clara Harshman, to set aside revocable inter vivos trusts executed by each of her parents during their lifetimes. The trusts, by their terms, transferred virtually all of the elder Harshmans’ property, being shares of stock in Harshman Farms, Inc., to Frances’ brother, the defendant, Frank Knox Harshman. The case was tried with an advisory jury, which, under the trial court’s instructions, found that Frank Harshman occupied a fiduciary or confidential relationship with his parents in 1968 when their trusts were prepared and executed and in 1970 when amendments to the trusts were prepared and executed. The jury also found that Frank unduly influenced his parents in the preparation and execution of the trusts and amendments. The trial court adopted the findings of the jury and entered judgment setting aside the trusts and ordering Frank to make appropriate stock transfers to the administratrix. The trial court also set aside certain transfers of stock made by inter vivos gifts by the elder Harshmans to Frank and to his sons over a period of several years. Frank appeals from these orders, and Frances has cross-appealed on the question of the validity of some Harshman Farms stock redemptions made by Frank to pay federal estate taxes on his parents’ estates. The focus of this dispute is two parallel trust instruments, one executed by Willard Harshman and one by Clara Harshman, in 1968. The trusts thereby created were revocable and provided that each settlor was the primary beneficiary of the trust during the settlor’s lifetime. Each settlor transferred the bulk of his or her personal assets (consisting of shares of stock in Harshman Farms, Inc.) to the trust. Each trust agreement directed that upon both settlors’ deaths all property held in trust was to be distributed to Frank Harshman and to his children. Each trust made no provision for the Harshmans’ only other child, the plaintiff, Frances Olson. The Willard Harshman trust agreement states: “The Grantor has intentionally made no provisions herein for his daughter, Frances Allene Olson, or the children of Frances Allene Olson, because of the gifts and financial assistance the Grantor and his wife have provided Frances Allene Olson and her children over the years and because of the estranged relationship that has existed for many years between the Grantor’s said daughter and her children with the Grantor and his wife.” The Clara Harshman trust instrument contains an almost identical declaration. Both documents designated Frank Harshman as trustee. The 1970 amendments were of lesser importance and do not affect the exclusion of Frances Olson. Numerous issues are raised, but those determinative of this appeal are whether there is substantial, competent evidence in the record before us to support the trial court’s findings of confidential or fiduciary relationship and undue influence. Before discussing the evidence, we will first discuss the standards which govern appellate review of this case and some of the applicable principles of law. Appellate review of the existence of a fiduciary or confidential relationship was recently discussed in In re Estate of Relihan, 4 Kan. App. 2d 277, 604 P.2d 1219 (1980), where it was said: “The existence or non-existence of a confidential or fiduciary relationship is an evidentiary question or finding of fact which must be determined from the facts in each case; and, therefore, the scope of appellate review is to ascertain only whether there is substantial competent evidence to support the finding of the trial court. Cersovsky v. Cersovsky, 201 Kan. 463, 468, 441 P.2d 829 (1968); Wilkinson v. Cummings, 194 Kan. 609, Syl. ¶ 3, 400 P.2d 729 (1965); Fairbank v. Fairbank, 92 Kan. 45, 139 Pac. 1011 (1914).” 4 Kan. App. 2d at 279. In passing on a trial court’s determination of the existence or nonexistence of a fiduciary or confidential relationship, an appellate court is required to consider the evidence in its most favorable aspect in relation to the party who prevailed in the court below. Curtis v. Freden, 224 Kan. 646, 652, 585 P.2d 993 (1978); Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P.2d 521 (1969); and In re Estate of Relihan, 4 Kan. App. 2d at 279. The nature of a fiduciary and confidential relationship in this state was discussed at length in Denison State Bank v. Madeira, 230 Kan. 684, 640 P.2d 1235 (1982). Justice Holmes, speaking for a unanimous court, said: “The determination of what constitutes a fiduciary relationship has been before this court on numerous occasions. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 606 P.2d 1009 (1980); Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976); Wolf v. Brungardt, 215 Kan. 272, 524 P.2d 726 (1974); Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50 (1928). It may be said that generally there are two types of fiduciary relationships: (1) those specifically created by contract such as principal and agent, attorney and client, and trustee and cestui que trust, for example, and those created by formal legal proceedings such as guardian and/or conservator and ward, and executor or administrator of an estate, among others, and (2) those implied in law due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions. The determination of the existence of a fiduciary relationship of the first category, though not without problems on occasion, is usually relatively simple. The second category, with which we are faced in this case, becomes much more difficult to determine and must depend upon the facts in each case. In Curtis v. Freden, 224 Kan. 646, 585 P.2d 993 (1978) this court stated: “ ‘Whether or not a confidential or fiduciary relationship exists depends on the facts and circumstances of each individual case. This court has refused, for that reason, to give an exact definition to fiduciary relations.’ p. 651. “The concept of the fiduciary duty is an equitable one and while no precise definition may be given and strict parameters of the relationship cannot be established for use in all cases, there are certain broad general principles which should be considered in making the determination of whether a fiduciary relationship exists in any particular factual situation. “A fiduciary relationship imparts a position of peculiar confidence placed by one individual in another. A fiduciary is a person with a duty to act primarily for the benefit of another. A fiduciary is in a position to have and exercise, and does have and exercise influence over another. A fiduciary relationship implies a condition of superiority of one of the parties over the other. Generally, in a fiduciary relationship, the property, interest or authority of the other is placed in the charge of the fiduciary. See generally, 36A C.J.S., Fiduciary, p. 381 et seq. “ ‘Courts of equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps new cases might be excluded, and have refused to set any bounds to the circumstances out of which a fiduciary relation may spring. “ ‘[I]t extends to every possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side and resulting domination and influence on the other.’ pp. 385, 386-7. (Emphasis supplied.) “In an old Indiana Appellate Court case, we find some definitive elements which may be relevant in determining whether a fiduciary relationship exists. “ ‘There is no invariable rule which determines the existence of a fiduciary relationship, but it is manifest in all the decisions that there must be not only confidence of the one in the other, but there must exist a certain inequality, dependence, weakness of age, of mental strength, business intelligence, knowledge of the facts involved, or other conditions, giving to one advantage over the other.’ Yuster v. Keefe, 46 Ind. App. 460, 466, 90 N.E. 920 (1910). . . . “In Lindholm v. Nelson, 125 Kan. 223, [264 Pac. 50 (1928)] the court held: “ ‘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.’ Syl. ¶ 3.” 230 Kan. at 691-92. (Emphasis in original.) We discussed a claim of fiduciary relationship in the recent case of Cornett v. Roth, 233 Kan. 936, 666 P.2d 1182 (1983). In Syllabus ¶ 1, we said: “While there is no invariable rule which determines the existence of a fiduciary relationship it is manifest that there must not only be confidence of one in another, but there must also exist a certain inequality; dependence; weakness of age, mental strength, business intelligence, knowledge of the facts involved, or other conditions, giving to one an advantage over the other.” (Emphasis supplied.) Also in Curtis v. Freden, 224 Kan. 646, 651, we said: “The mere relationship of parent and child does not raise a presumption of a confidential and fiduciary relationship. [Citations omitted.] Neither does the fact that a gift or real estate is made by deed from a parent to a child in and of itself raise a presumption of overreaching .... [Citation omitted.]” In the context of a will contest, this court has defined “undue influence.” In the recent case of In re Estate of Robinson, 231 Kan. 300, 306, 644 P.2d 420 (1982), we quoted with approval the following language from In re Estate of Ziegelmeier, 224 Kan. 617, 622, 585 P.2d 974 (1978): “Generally, undue influence or fraud, to invalidate a will, must amount to coercion, compulsion or constraint which destroys the testator’s free agency, and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own, and it must be brought to bear directly on the testamentary act.” (Emphasis supplied.) In 89 C.J.S., Trusts § 76(a), pp. 865-66, it is said: “Where a declaration of trust is procured by undue influence, it is invalid and unenforceable and may be set aside .... The influence exerted on the creator of the trust must be undue. The influence which the law condemns as undue is that which is operative to such a degree as to amount in effect to coercion. It is a kind of mental coercion which destroys the free agency of the creator of the trust and constrains him to do that which is against his will.” Undue influence, instrumental in procuring the execution of a trust, constitutes grounds for setting it aside. The mere fact that the trustee was the confidential adviser of the grantor is not sufficient to cause the setting aside of the trust, where it appears that the grantor acted on his independent judgment. 76 Am. Jur. 2d, Trusts § 93; and see Annots., 38 A.L.R. 941, 977; 91 A.L.R. 102, 116; and 131 A.L.R. 457, 474. We turn now to the factual background. Willard and Clara Harshman had two children, Frank Harshman and Frances Olson. Frances is married to Webster Olson. In the early 1940’s, the elder Harshmans owned some 2,000 acres of land in Chase County, about one-third of which was tillable, and they raised Shorthorn cattle. From about 1940 to 1949, the farming and cattle-raising operation was carried on by Willard Harshman, Frank Harshman and Webster Olson. The Olsons owned a separate tract of land, approximately a quarter section, which they farmed and operated separately. By 1948, the Olsons were no longer happy with the joint farming arrangement, finding that they could no longer live on the share of the income which came to them from that arrangement. Various difficulties arose between Webster Olson and Frank Harshman, and Mrs. Olson testified that Frank constantly misrepresented things to his mother. One incident related in the evidence is that Olson had planted corn on a small piece of bottom land, and because of drought the crop didn’t mature; what little there was ended up as ensilage. Frank said to Olson in substance that if Olson didn’t think he got enough out of that piece of land as his share, that Frank would like to take it and put it into wheat. Olson agreed. Later, Frank told his mother that Olson didn’t want that tract. Additionally, Frank was critical of the way Olson maintained the machinery, and would recheck to make sure that Olson greased the equipment properly. Frank was also critical, claiming Olson stored his combine where it was in the way. All these things occurred in the 1940’s. Frank was living at home, and the Olsons were convinced that he was getting more than his share of the income and doing less than his share of the work. Mrs. Olson testified that finally, in 1948, she told her mother: “I felt like we were being treated unfairly. . . . Frank was continually reporting to mother things that were not the way he’d represented them to be. “I told her that she could figure out a way that we could make a living if she wanted us to remain in the community. If she wanted to associate with me and her grandchildren, that it was up to her to figure out a way we could make a living. And she knew that I meant it.” The Olsons ceased participation in the family farming and ranching operation in 1949, and developed their own operation. Willard and Clara Harshman conveyed two tracts of land, 120 acres known as the Soper place and 39 acres described as the Meierhoff, to Frances and Webster Olson in 1950; and commencing in that year and continuing thereafter, the Olsons carried on a separate farming operation of their own. Frank, meanwhile, lived at home and continued in the family operation with his father. In the mid-1950’s Willard and Clara helped Frances and Webster buy another farm and about the same time the elder Harshmans conveyed all of their remaining land to their son, Frank, reserving only a life estate. Two witnesses testified that about that time Frank said that Frances had received all of her parents’ property that she would ever receive. Frank denied making such statements. In 1958, on the advice of a Kansas City certified public accountant who did the Harshmans’ tax work, a corporation, Harshman Farms, Inc., was formed. Frank was president and Willard and Clara were the other corporate officers. Ten thousand shares of stock were issued, 3,333 shares each to Willard and Clara and 3,334 shares to Frank. Frank conveyed all of the Harshman land to the corporation and Willard and Clara conveyed their remaining interest to it. The corporation has continued in existence to the present time. The elder Harshmans put their social security and oil royalty income in the corporation bank account, and apparently all .three— Frank, Willard and Clara — had checking privileges. W. L. McFillen, an agricultural engineer from Kansas City, Kansas, became acquainted with Frank and with the elder Harshmans in 1965 or possibly earlier. McFillen was doing range management and water supply work in the area, and Frank was operating heavy equipment doing earth moving. McFillen and Frank discussed estate planning and Frank advised McFillen of the incorporation of Harshman Farms, Inc., as the Harsh-mans’ estate plan. He told McFillen that the accountant had advised it. McFillen later discussed this with the Harshmans’ accountant, and then with Wayne Davidson, a lawyer in Kansas City, Missouri, who did McFillen’s tax work. As a result of these conversations, McFillen was convinced that the mere incorporation would not solve all of the Harshmans’ estate tax problems and so advised Frank. While the record is not clear, apparently Frank contacted Davidson and set up an appointment for Davidson to come to Chase County to counsel with the elder Harshmans. McFillen and Davidson drove down from Kansas City together, met Frank at his place, and then went over to the Harshman home. Frank and McFillen left and went somewhere else for a good portion of the day; Mr. Davidson spent that time with Mr. and Mrs. Harshman. Wayne Davidson testified that he received his law degree from Washburn University in 1960, and he has been a practicing attorney for some twenty years. He devotes approximately fifty percent of his time to probate and estate planning and the rest to tax, corporate, and general business law. He does not recall who contacted him but he went down to the Harshman home with Mr. McFillen in early 1968. He met Frank Harshman and talked with him some during the visit, but Frank was not present when he talked with Willard and Clara Harshman about their estate planning. They told him some of their desires regarding the disposition of their property, and he made suggestions as to alternate plans that were available to them. Portions of his testimony were as follows: “Q. What did they tell you with regard to their desires concerning their disposition of their estate? “A. Well, they wanted to make sure that one of their children was not included. . . . They wanted to make sure that Mrs. Olson was not a beneficiary of their estate. “Q. Did they say why? “A. Well, they primarily said that it was because of the fact that they had an estranged relationship with her and the substance of what I got from the conversation on that trip, was that Mrs. Olson lived a fairly short distance from the Harshmans, and for some reason they felt that she did not spend enough time with them, Or not visit them on regular occasions, and I get the feeling that the problem stems from that somewhat. “Q. Okay. Did you discuss with them the aspects of leaving a child out of their planning? “A. Yes. I told them it was a very serious step. . . . And I advised them in the event that they desired to omit their daughter from their estate planning, that it should be so specified in their documents. “Q. There is language in both of the trusts to the effect that there was an estrangement, or estranged relationship. Is that how — did they use that word to you? “A. They didn’t use that word, no. That’s my word. They used words like, she didn’t pay any attention to them. And there’s hard feelings among the family. And she did not visit them. She lived close by and did not visit them. “Q. So, that was you — that was your choice of words by virtue of being a draftsman, is that correct? “A. Yes, sir. “Q. Now, following your — the first contact that you had with Willard and Clara Harshman, what, if anything, did you do? “A. Well, after the first contact, we just went over in general, what they had — what they desired. I gave them some ideas about what the Federal estate tax impact might be. And I found that they, like most clients, had developed substantial estates, and do not realize the tax impact. I told them what I thought could be done in general. I thought that we could do some planning that would take advantage of the Federal estate tax major deduction, and just off the top of my head, I estimated that we could carve the tax bill in half, whatever half might be. And told them that it would probably necessitate the preparation of trust agreements, and I said that for two or three reasons, the Federal estate tax planning is much easier to do with the trust agreement. “The type of trust agreement I had in mind was a trust agreement that eliminated probate. It eliminated attorney fees. At least to a large extent, it eliminated all Executor fees and eliminated the delays associated with probate. And I thought — I thought that was an appropriate approach for them; for the simple reason that the bulk of their assets, if not all their assets, were tied up in the stock of Harshman Farms. “So, Mr. Harshman — Mr. Willard Harshman, owned a piece of paper that represented roughly a third of the outstanding stock of Harshman Farms, Inc. And I thought that it was not appropriate to have that one piece of paper go through probate and justify a substantial attorney fee, or substantial executor’s fee, just to probate that one document — that one piece of paper. In other words, you’d be paying a high price, just to get the title changed on that one piece of paper, from Mr. Harshman’s name to his desired beneficiaries. “Q. Okay. Now, the type of planning that you recommended to Mr. and Mrs. Harshman, was that an unusual plan at that time? “A. No, not at all. I have done substantial work in the revocable trust, intervivos trusts — meaning during life. I’ve done substantial work in that area. Many lawyers do. “Q. Okay. Now, the trusts that you eventually drew, those were revocable trusts? “A. Yes. “Q. What does that mean. Would you explain? “A. Revocable, means the right to revoke it or amend it at any time during your life. It — basically, it’s just a document that you enter into during your life, but reserve the power to change it. “Q. Does that mean then, that either of these trusts could have been revoked or changed at any time prior to the death of either Clara or Willard Harshman? “A. Yes. “Q. When you spoke with them, what was your impression regarding the Harshmans, concerning their health, and mental well being? “A. Well, Mr. Harshman was — seemed to be in excellent physical health for a man his age. And I know that on all occasions that I have seen him, he was able to work, and like a younger man. He seemed to be very mentally alert. “Mrs. Harshman was very mentally alert in my opinion. She — I think her physical condition was much worse than Mr. Harshman’s. She was not able to get around like he was. Most of the times that I saw Mrs. Harshman, was in her home. I have been in the automobile with her, gone on short trips while she was in the car, and I had no question at all about her mental alertness. But her physical condition, I think she suffered from arthritis and perhaps other things, but it was a little harder for her to get around. “Q. Were they indecisive at all in expressing their desires to you? “A. No, not at all. They knew exactly what they wanted. They didn’t know the exact form they wanted, but they knew the results they wanted. “Q. What was that? “A. The results they wanted, they wanted Frank and his children, to end up with everything they owned. “Q. Did you ask them that they had discussed that with Frank? “A. I don’t recall if I asked them that or not. “Q. Let me ask it a different way. Do you have any knowledge that they, at any time, discussed that with Frank? “A. Oh, I’m sure they did, after I suggested certain planning, because that certain planning arrived at that result. It arrived at the result of the assets of Mr. and Mrs. Harshman, after the death- of both of them, eventually going to Frank, or if Frank was deceased, to his children. “Q. Did you discuss the planning you were going to do for them, with Frank? “A. At the first meeting? “Q. Well, let’s start there, yes. At the first meeting. “A. No, not at the first meeting. “Q. At any time? “A. Oh, I had discussed it in general with Frank, and there were several decisions that involved Frank. They wanted to name Frank as the trustee of their trusts. And I think it’s important to know exactly what I set up. I set up a revocable trust agreement whereby Mr. Harshman, for example, named Frank Harshman as the trustee of his estate during his life. And I suggested that he name a bank. “Q. . . . Did you discuss with Willard and Clara Harshman, your preference I take it, for a corporate trustee, or a bank being trustee, as opposed to an individual? “A. Yes, I did. “Q. And what, if anything, reaction did you get from them? “A. They wouldn’t consider it. Wouldn’t consider it. “Q. Do you know why? “A. Well, I presume they were just skeptical of banks. I don’t know if they have had bad luck with banks in the past, or the fact that just their personalities, but I find many people are fearful of banks. But they just wouldn’t hear of it.” Mr. Davidson testified further as to the estate tax savings that could be effected. He discussed with Frank the responsibilities of serving as trustee, and Frank finally agreed to serve. Ulti-. mately, Mr. Davidson prepared trust agreements for Willard and Clara Harshman. He did some research and then outlined the plan in a letter; the Harshmans took this letter to a Chicago attorney who supposedly is one of the authorities in the estate planning field. After they talked to the Chicago lawyer, they told Mr. Davidson to go ahead, and he prepared separate proposed drafts of trust agreements and wills for Mr. and Mrs. Harshman. He took these down and discussed them with the Harshmans in August or September, returned to Kansas City and prepared final drafts. The latter were executed on October 5, 1968. Davidson took the documents to their home and explained the provisions to them and satisfied himself that both Mr. and Mrs. Harshman understood what each document was doing and that they were satisfied that the property would ultimately be transferred to Frank and his children. The trusts were executed at the bank in Elmdale. Later, in 1970, certain amendments to both trust agreements were prepared and executed, the basic change being that instead of certain assets being held in trust until the grandchildren were twenty-five years of age, the trusts ceased upon the deaths of both Mr. and Mrs. Harshman. The trusts were revocable and could have been revoked by either Mr. or Mrs. Harshman at any time prior to their respective deaths. Davidson felt that he was employed by Mr. and Mrs. Harshman. He was paid for his services by a check drawn on Harshman Farms, Inc., signed by Frank Harshman. Mr. and Mrs. Harshman were in their eighties when the trusts were executed. Mr. Harshman was in good health, and could still do a good day’s work, but Mrs. Harshman suffered from arthritis and was not robust. There is no evidence, however, that either Willard or Clara Harshman were lacking in mental capacity at the times the trust documents were executed. On the contrary, the only evidence is that both of them were mentally competent and alert, with clear and definite ideas about the disposition of their property. Frank served as president of Harshman Farms, Inc., from its formation forward, and he was the primary decision-maker on matters concerning the farming operation. By the 1960’s Frank was an authorized signatory on his parents’ bank accounts. He lived close to them, was in daily contact with them during their lifetimes, and he was obviously a person whom they trusted and relied upon. Certainly as a corporate officer and director, Frank occupied a position of trust and had a fiduciary duty to the corporation and its shareholders. Newton v. Hornblower, Inc., 224 Kan. 506, Syl. ¶ 8, 582 P.2d 1136 (1978); and see Delano v. Kitch, 663 F.2d 990 (10th Cir. 1981), cert. denied 456 U.S. 946 (1982). Also, as a signatory on his parents’ bank accounts in the 1960’s, Frank could incur liability if he misused the funds thus available to him. He is not charged, however, with any breach of fiduciary duty arising from his capacity as a corporate officer or director, or as signatory on his parents’ bank accounts. There simply is no evidence that the senior Harshmans relied upon Frank in the preparation of the trust agreements here attacked. There is no evidence that either lacked mental faculties; the only evidence is that both Willard and Clara Harshman were, even in advanced years, completely competent and alert. Both knew precisely what they wanted to do with their property and unhesitatingly directed their attorney as to the results each desired. Frank was not present during the attorney-client conferences and had no part in formulating the terms of the trusts excepting his acceptance of the trusteeship, a matter insisted upon by his parents. The fact that Frank called the attorney, a recommended specialist in the field and a stranger to him, is of little moment; and the fact that Frank paid the attorney from the corporate account at a time when his parents maintained no personal bank accounts certainly does not indicate any undue influence on his part. We conclude that there is not sufficient competent evidence, when viewed in a light most favorable to the plaintiff, to support the trial court’s finding of a fiduciary or confidential relationship, or of undue influence. Assuming, arguendo, that a fiduciary or confidential relationship was established, there was absolutely no evidence linking that relationship with the execution of the trusts or indicating that Frank had the kind of influence which would amount to coercion, or the overpowering of the will of his parents, or the substitution of his will for theirs. The trust instruments were prepared according to their instructions, not his. A number of other issues are, raised, including an attack on the jury instructions (which improperly placed an undue burden on the defendant), but we need not decide those in view of our decision as to the sufficiency of the evidence, which is dispositive of the case. The cross-appeal likewise need not be considered or determined in light of our conclusion that the trusts are valid. The judgment is reversed.
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The opinion of the court was delivered by Miller, J.: This is an interlocutory appeal by the defendants in sixteen consolidated class action natural gas royalty cases. The plaintiffs are natural gas royalty owners in Grant, Haskell, Seward and Stevens Counties, and the individual cases were filed in the district courts of those counties, all of which are in the Twenty-sixth Judicial District. The defendants are gas producers who produce and market natural gas from the leases under which the royalties arise. Defendants include Amoco Production Company, Ashland Exploration, Inc., Ashland Oil, Inc., Cities Service Company, Cities Service Oil Company, Columbian Fuel Corporation, Hugoton Plains Gas & Oil Company, Mapco Production Company, Mobil Oil Corporation, Northern Natural Gas Producing Company, and Sinclair Oil Company. All of the natural gas with which we are here concerned was sold in the interstate market. The plaintiffs brought this suit for additional royalties which they claim on the basis of the “market value” of the gas produced and sold from 1961 to 1978. During that time, royalties were computed and paid by the defendants on the basis of “proceeds,” the amounts actually received by the producers for gas sold. The trial court sustained motions for partial summary judgment, holding (a) that as to “proceeds” leases, the producers had no duty to pay royalties beyond that proportion fixed by the lease of the proceeds actually received from sale of the gas, and (b) that royalty obligations on “market value” leases were not necessarily satisfied by payment of royalties computed by applying the required proportion, usually one-eighth, to the proceeds received from sale of gas. A consolidated and lengthy trial was held as to holding (b), the purpose of which was to establish the “market value” of natural gas for the relevant period, in order that royalties could be accurately and properly computed. After the presentation of a tremendous volume of evidence, including much expert testimony from both sides of the controversy, the trial court determined that the “market value” of the gas was represented by the highest federally regulated rate for any Kansas gas sold in interstate commerce from the Hugoton field, without regard to “vintaging,” during the years covered by the dispute. These prices range from 160 per thousand cubic feet (Mcf) in 1961 to $1.51 per Mcf in late 1978, computed at various stated pressures, and with certain BTU adjustments since October 1, 1970. The trial court thus held that royalties on “market value” leases were to be computed and were payable upon the “market value” of the gas, regardless of the actual contract price paid to the producer. The court also made express directions for entry of judgment pursuant to K.S.A. 60-258, and appropriate findings under K.S.A. 1982 Supp. 60-2102(5) to permit the taking of an interlocutory appeal. The producers appeal from the trial court’s determination of the royalties due on market value leases. The royalty owners cross-appeal from the trial court’s holding that actual proceeds from sale of gas provide the basis for computation of royalties due on “proceeds” leases, and the royalty owners also cross-appeal on certain “special issues” which we will discuss later in this opinion. BACKGROUND These cases arose in the Hugoton gas field in southwest Kansas. When the development of the enormous gas reserves in that field began more than forty years ago, natural gas pipelines were built so that the gas might be transported to the larger markets and industrial areas of the northeastern United States. In 1938, Congress passed the Natural Gas Act, 15 U.S.C. § 717 et seq., and created the Federal Power Commission (FPC), which was to regulate the price of natural gas sold in interstate commerce. Regulation was accomplished as between producers and interstate pipeline companies in 1954. See Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 98 L.Ed. 1035, 74 S.Ct. 794 (1954). Long-term natural gas purchase contracts were entered into between the producers and the interstate pipeline companies. These committed production to the interstate market, often for the life of the field. The FPC, in regulating prices, classified or categorized natural gas based upon the spud dates of the wells or the date the gas purchase contract between producer and pipeline was executed. This is known as “vintaging.” The price for gas produced from older wells is established at a lower rate than the price for gas produced from more recent development. This practice continues today under the Natural Gas Policy Act of 1978, 15 U.S.C. § 3301 et seq. (Supp. V 1981), which is administered by the Federal Energy Regulatory Commission (FERC). There was virtually no distinction between the prices paid for gas for interstate and intrastate markets until 1954. After 1954, federal regulation proceeded from individual producer rates (1954-1960), to guideline rates (1960-1969), to area rates (1969-1975), to national rates (1976-1978). The regulation in effect during the time within which we are here concerned, 1961 to November 1978, stems almost entirely from the FPC and the Natural Gas Act of 1938. Almost all of the gas in issue is classified as “old” gas, sometimes called “flowing” gas, and almost all of the leases came into production early in the development of the field. The regulated rates for this gas are significantly lower than the price permitted for “new” gas produced from the same field. WAECHTER and LIGHTCAP This case is a sequel to our decisions in Waechter v. Amoco Production Co., 217 Kan. 489, 537 P.2d 228 (1975), opinion adhered to after rehearing 219 Kan. 41, 546 P.2d 1320 (1976), and Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 562 P.2d 1, cert. denied 434 U.S. 876 (1977), reh. denied 440 U.S. 931 (1979). An understanding of those opinions is necessary to the comprehension of the issues presented in the case at bar. Roth are lengthy and detailed, and we will not attempt to repeat them fully here. Instead, in capsule form, we will state only the principal issues and their determination which are relevant to this decision. Waechter was a declaratory judgment action brought by some 500 lessors, all in the Kansas Hugoton gas field, against the gas producer, Amoco Production Company. The principal issue, so far as we are now concerned, was whether the lessors were entitled to have royalties computed on a basis of a price greater than that which was actually received by Amoco from the interstate sale of the gas. Although there were many different forms of royalty clauses in the leases, the parties agreed: “[T]he royalty clause covering most of the approximately 600,000 acres involved and also that upon which all parties will stand or fall, provides as follows: “ ‘Lessee shall pay lessor monthly as royalty on gas marketed from each well one-eighth (Vs) of the proceeds if sold at the well, or, if marketed by lessee off the leased premises, then one-eighth (Vs) of the market value thereof at the well.’ ” 217 Kan. at 490. (Emphasis supplied.) (Leases containing this clause have since been referred to as “Waechter” leases.) Lessors were contending that royalties should be computed on the basis of a price of 14.50 per Mcf, which price had been determined to be the fair market value of the gas by the district court of Shawnee County in an action between Amoco’s predecessor and the purchaser of the gas. See Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 513, 382 P.2d 645 (1963). That price, however, never went into effect because it was not approved by the Federal Power Commission, and Amoco and the purchaser settled the controversy and agreed upon a lower price which the FPC did approve. Since the gas was being sold by the producer at the wellhead, we held that under the specific terms of the royalty clause set forth above, the lessors were entitled only to royalties computed upon the proceeds — the actual sale price of the gas. We distinguished between “proceeds” leases and “market price” leases in the terms of how royalties would be computed. Syllabus ¶ 2 of the Waechter opinion reads as follows: “An oil and gas lease which provides that the lessee shall pay lessor monthly as royalty on gas marketed from each well one-eighth of the proceeds if sold at the well, or, if marketed off the leased premises, then one-eighth of the iri^rket value at the well, is clear and unambiguous as to gas sold at the wellhead by the lessee in a good faith sale, and lessor is entitled to no more than his proportionate share of the amount actually received by the lessee for the sale of the gas.” 217 Kan. at 489. Lightcap was an action instituted by various lessors against the producer of the leases, Mobil Oil Corporation. Mobil had paid royalties based upon the amounts actually received by it from its pipeline customers for the gas sold. Again, we were dealing with interstate gas sales. The plaintiff-lessors sought additional royalties based upon the market value of the gas, which lessors claimed had been determined by arbitration between Mobil and its customers under contracts which called for arbitration of a “fair, just and reasonable” price. As in Waechter, the arbitrated price had not been approved by the FPC and was higher than that actually collected by Mobil. Three types of leases were considered by the court: proceeds leases, market value leases, and Waechter leases. A divided court held that under proceeds leases royalties are to be computed upon the actual moneys received by the producer from the sale of the gas; that under market value leases, royalties are to be computed upon the price which would be paid* by a willing buyer to a willing seller in a free market, and thus royalties under these market value leases were to be computed based upon the arbitrated price; and that under Waechter leases, since the sales of gas were being made at the wellhead, the royalties were to be computed upon the actual sale price received by the producer. We reaffirmed our holding in Waechter. The holding of Lightcap regarding market value leases is immensely important to the matter at bar. Syllabus ¶¶ 3, 4 and 5 of Lightcap read as follows: “The existence of federal regulation fixing the maximum rate a gas producer may receive from its purchaser is no obstacle to the fixing of a higher rate as the ‘market value’ of the gas it sells for the purpose of computing royalties. “Where a lease calls for royalties based on the ‘market value’ of the gas sold, in the absence of proof of a contrary intent that value is the price which would be paid by a willing buyer to a willing seller in a free market. “Where a lease calls for royalties based on the ‘proceeds’ from the sale of gas, the term ‘proceeds’ means the money obtained from an actual sale and lawfully retained by the seller.” 221 Kan. 448. A major question left undecided by Lightcap is one raised here: How is the free market value of natural gas to be determined in a highly regulated interstate market? The Lightcap majority made it clear that the existence of federal price regulation does not prevent setting a higher rate as the market value for the purpose of computing royalties under a lease when it said: “We hold, therefore, that the existence of federal regulation over the rates which a gas producer may receive is no obstacle to the fixing of a higher rate as the ‘market value’ of the gas it sells for the purpose of computing royalties.” 221 Kan. at 457, Noting that neither the royalty owners nor the producers involved in Lightcap offered any independent evidence of market value, the majority affirmed the trial court “insofar as it awarded royalties on the free market value (i.e., the arbitrated price) of gas sold under those leases which this court categorizes as ‘market value’ leases . . . .” 221 Kan. at 469. The Light-cap majority also said that the “market value” of the gas was subject to proof at trial by any competent evidence. There, however, the royalty owners were content to rely on the arbitrated price as reflective of market value and the producers maintained that the FPC regulated price represented market value. The royalty owners in the case now before us have attempted to prove market value by expert testimony based upon comparable sales (intrastate sales and “new gas” prices), upon comparative prices for alternative competing fuels, and upon an econometric study of demand and supply relationships as to natural gas during the pertinent time periods. The producers, on the other hand, continue to argue that the price of gas within the particular federally regulated category (vintaged or “old” gas) is reflective of market value, and that market value for royalty purposes cannot exceed that regulated price. MARKET VALUE The evidence before the trial court reflects a great diversity of expert opinion as to the “market value” of natural gas. The trial court found the experts for both sides to be equally qualified. Defendants’ evidence reflects that the average sale price for gas varied from $0.1098 per Mcf in 1961 to $1.4747 per Mcf in 1978. This evidence was based upon the average applicable FPC prices for the gas produced from these leases during the years in question. Plaintiffs’ experts placed the market value from $0.2538 per Mcf in 1961 to $2.8625 per Mcf in 1978, based upon a comparison of the BTU cost of alternative fuels, and from $0.127 per Mcf in 1964 to $4.25 per Mcf in 1978, based upon an econometric study of demand and supply relationships as to natural gas. Plaintiffs also introduced evidence that the largest intrastate sale of natural gas in Kansas, a contract between Mesa Petroleum and Kansas Power & Light Company, called for prices varying from $0.167975 to $0.26 per Mcf during the target period. Finally, the evidence disclosed that FPC-established prices for “new” gas exceeded those for “old” gas produced in the same field. Evidence of the FPC-regulated prices was presented by defendants’ experts. The trial court determined that the Mesa-KPL contract reflected the depressed prices imposed by the FPC on the interstate market, and that the contract rates for some years were not only below the FPC maximum prices, but were at times even below the FPC minimums. It concluded that those intrastate contract rates did not provide a valid basis for determining market value. The trial court declined to rely upon the expert testimony based upon econometric model projections and alternative fuel costs. It found that the FPC opinions or directives fixing the price of old gas were based upon vintaging, which the court described as follows: “[M]erely a device for classifying . . . gas produced from previously drilled wells . . . and an artificial way of distinguishing some of the current costs as opposed to older costs in the development of the field. The purpose of this rationale was to justify repression of the prices allowed.” The court then turned to the FPC directives fixing the price for recent or “new” gas. It noted that these were “based upon hearings to determine current costs of exploration and development, and is the best evidence of market value of gas in the Hugoton field on each particular time period.” The court ultimately found that the most realistic guide to the market value of natural gas for the period in question was the maximum FPC regulated price, a price at which natural gas was actually being sold in interstate commerce from the Hugoton field. This approach disregards FPC vintaging for the purpose of fixing the market value upon which royalties are to be based. After the trial court announced its decision, counsel were requested to check and verify the “new gas” rates applicable throughout, and did so. We therefore have no issue as to the specific rates applicable under the trial court’s ruling. In Lightcap, we said that market value in a free market was subject to proof at trial by any competent evidence. Market value of property may be shown by proof of comparable sales. See Lippert v. Angle, 211 Kan. 695, 508 P.2d 920 (1973). The evidence presented by the parties below was all competent evidence of market value — evidence of actual sales of the gas produced, evidence of comparable sales, and expert opinion based upon the sale price of comparable fuels and upon econometric model projections. The trial court pointed out that the validity of the latter “has been well established in the field of economics and is relied on for much governmental and industrial planning.” Natural gas from the Hugoton field has been sold during the period in question at the regulated “old gas” price; gas of the same or similar quality, characteristics, pressure, and BTU content, produced from recently drilled wells, has been sold at the regulated “new gas” price. The evidence does not indicate that any gas, however, has been sold from the Hugoton field in interstate commerce at the fair market values or prices projected by plaintiffs’ experts. The trial court, faced with this evidence, found that the “new gas” price was the most reliable indication of market value and adopted that price as the market value of the gas in issue. The trial court’s finding is based upon substantial, competent evidence. It is a finding of fact. Ordinarily, we will not substitute our judgment for that of a trial court where the latter’s findings of fact are fully supported by the evidence below. As we said in City of Council Grove v. Ossmann, 219 Kan. 120, 126, 546 P.2d 1399 (1976): “Our function on appeal is to determine whether the findings of the trial court are supported by substantial competent evidence . . . and whether the findings are sufficient to support the trial court’s conclusions of law. The findings adopted by the trial court will not be set aside unless they are clearly erroneous.” And see Holmes v. Kewanee Oil Co., 233 Kan. 544, 664 P.2d 1335 (1983). Syllabus ¶ 4 of Lightcap, quoted above, provides in substance that the “market value” upon which royalties are to be based under market value leases is that price which would be paid by a willing buyer to a willing seller in a free market. This basic position is shared by the courts of other jurisdictions. See, for example, J. M. Huber Corporation v. Denman, 367 F.2d 104 (5th Cir. 1966) [discussed in Lightcap, 221 Kan. at 452-53]; Foster v. Atlantic Refining Company, 329 F.2d 485 (5th Cir. 1964); Montana Power Co. v. Kravik, 179 Mont. 87, 586 P.2d 298 (1978); Exxon Corp. v. Middleton, 613 S.W.2d 240 (Tex. 1981); Texas Oil & Gas Corporation v. Vela, 429 S.W.2d 866 (Tex. 1968). And see also Lowe, Developments in Nonregulatory Oil & Gas Law, 32d Ann. Inst. on Oil & Gas L. & Tax’n 117, 144 (1981). We are not unmindful that three other jurisdictions have reached the opposite conclusion on this issue, holding that a producer’s royalty obligation, under a lease calling for royalties based upon market price or market value, is discharged when the producer enters into an arm’s-length, good faith gas purchase contract at the best price available at the time and then pays royalties based upon the proceeds received. See Hillard v. Stephens, 276 Ark. 545, 637 S.W.2d 581 (1982); Henry v. Ballard & Cordell Corp., 418 So. 2d 1334 (La. 1982); Tara Petroleum Corp. v. Hughey, 630 P.2d 1269 (Okla. 1981). We do not, however, find these cases to be persuasive, nor do we find it necessary to abandon the holding of Syllabus ¶ 4 of Lightcap. Syllabus ¶ 3 of Lightcap, quoted above, states in substance the proposition that federal regulation fixing the maximum price a producer may receive from its purchaser is not an obstacle to the fixing of a higher rate as the “market value” of the gas it produces and sells, for the purpose of computing royalties which it is contractually obligated to pay. The cases supporting the holding of Syllabus ¶ 3 are discussed in Lightcap, 221 Kan. at 452-55, and what we said there need not be repeated here. We recently reaffirmed the rule stated in both Syllabus ¶¶ 3 and 4 of Lightcap in Holmes v. Kewanee Oil Co., 233 Kan. 544. Counsel have argued, and we have not ignored, the several cases which hold that the “legal characteristics” of gas — old or new gas, under applicable federal regulations, for example — may not be overlooked in determining market value and that sales on the unregulated intrastate market or sales of new gas may not be considered comparable sales when determining the market value of old gas or the royalties due under market value leases. See, for example, Bowers v. Phillips Petroleum Co., 692 F.2d 1015 (5th Cir. 1982); Kingery v. Continental Oil Co., 626 F.2d 1261 (5th Cir. 1980), cert. denied sub nom. Brent et al. v. National Gas Pipeline Company of America, 454 U.S. 1148 (1982); Domatti v. Exxon Corp., 494 F. Supp. 306 (W.D. La. 1980); First Nat. Bank in Weatherford v. Exxon Corp., 622 S.W.2d 80 (Tex. 1981); and Shell Oil Co. v. Williams, 428 So. 2d 798 (La. 1983). The Williams opinion includes the following statement: “[T]hat market value must be determined by comparable sales in quality which also involve the legal characteristics of the gas, that is, whether it is sold on a regulated or unregulated market.” 428 So. 2d at 802. Regulation of the interstate sales of natural gas is, and was during the time period here involved, an accomplished fact. Strict adherence to Lightcap Syllabus ¶ 4 would require that the existence of federal regulation should be wholly disregarded when establishing market value for the purpose of computing royalties. The trial court did not do so; instead, it took the highest regulated price, and rejected evidence of hypothetical market value in a free market, a market which no longer exists. This is a middle-of-the-road approach, and we think one reasonably and prudently taken. Certainly the value of a given quantity and quality of natural gas, produced on adjoining leases, from the same formation, is the same to the royalty owner, the producer, the seller, and the purchaser. The age of the well or the contract of sale matters not to the landowner whose gas is being produced and whose reserves are being reduced, or to the producer or the consumer, who are concerned only with quality and quantity, not origin. In Syllabus ¶ 6 of the opinion in Holmes, we said: “Comparable sales of gas are those comparable in time, quality, quantity and availability of marketing outlets.” 233 Kan. 544. We disagree with the Williams rationale, reflected in the quotations above, and hold that quality, as that term is used in defining comparable sales, does not include the “legal characteristics” of the gas resulting from “vintaging.” Quality consists of the inherent properties of the gas — BTU content, pressure, and the like. We further hold that, on the evidence presented, the new gas sales considered by the trial court in this action are comparable in quality to the gas sales at issue here. We are not unmindful of the cases cited above, which appear to hold to the contrary. We do not believe, however, that those decisions require the result which defendants seek. The defendants maintain that, under the standards of comparability established by those decisions, the market value of gas committed to the interstate market cannot be higher than the regulated price ceiling for gas of the same vintage. That conclusion is implicit in the Bowers, Kingery and Domatti cases. We note, however, that in both the Kingery and Domatti cases, the courts were faced with situations where the only evidence of comparable sales in the interstate market was the testimony of producers’ experts that the market value was the same as the contract price. It, in turn, was the same as the regulated price. See Kingery, 626 F.2d at 1265, and Domatti, 494 F. Supp. at 314. Thus, the only evidence presented required the result reached by those courts. The Bowers court, similarly, was careful to note that its ruling did not mean, in every case, that market value and the contract price (which there equalled the regulated ceiling) were the same. Bowers, 692 F.2d at 1020. This particular record, as noted earlier, contains an abundance of expert evidence designed to show market value. The trial court, after hearing all of the evidence, concluded that the market value of this particular gas is best reflected in the highest regulated price of new gas in the area. We find this approach, which incorporates the holding of Lightcap that market value may be higher than the contract price and yet acknowledges that the market is affected by pervasive regulation, is reasonable and is supported by the evidence presented. Royalties which a producer is required to pay form a part of the producer’s operating costs. Consideration of those costs in fixing allowable rates is within the scope and authority of the federal regulatory agency. At least two United States Supreme Court decisions have indicated that a producer who is forced to pay higher royalties on a market value lease may go to the federal regulatory agency and request individual relief from the regulated price which it charges its customers. In Mobil Oil Corp. v. FPC, 417 U.S. 283, 328, 41 L.Ed.2d 72, 94 S.Ct. 2328 (1974), Mobil complained that the FPC failed to provide automatic adjustments in area rates to compensate for anticipated higher royalty costs. The court said: “We agree with the Court of Appeals that Mobil’s argument is hypothetical at this stage and that in any event an affected producer is entitled to seek individualized relief. The Court of Appeals said: “ ‘[W]e are not willing to alter or stay the implementation of area wide rates for the entire industry merely on the basis of what might happen to some producers’ costs .... “ ‘If, as subsequent events develop, the producers are put in a bind by their royalty obligations, they may certainly petition FPC for individualized relief. Permian [Permian Basin Area Rate Cases, 390 U.S. 747, 20 L.Ed.2d 312, 88 S.Ct. 1344 (1968)] contemplated it.’ 483 F.2d at 911 (emphasis in original).” The latest discussion of this matter which we have found appears in FERC v. Pennzoil Producing Co., 439 U.S. 508, 58 L.Ed.2d 773, 99 S.Ct. 765 (1979). The producers of certain market value leases, all involving interstate gas, reached a settlement with their lessors in a dispute over the meaning of the term “market value.” The settlement provided that royalty payments would be pegged to the intrastate price of natural gas. The settlement was to be binding only if FERC allowed the producers to charge their purchasers a higher rate than the applicable area rate. The producers petitioned FERC for special relief; the Commission concluded that it was not free to allow royalty costs based upon the value of gas in an unregulated market to affect the price which a regulated producer might charge its customers. The Court of Appeals for the Fifth Circuit disagreed and held that FERC was in fact required to grant such relief if so requested, as long as the increase in royalty was not imprudent and the increase, if granted, would merely sustain rather than increase the producers’ profits. The United States Supreme Court vacated and remanded, and in a unanimous decision concluded that the Commission is not required to grant the requested relief but that it has the power to do so in the exercise of the broad discretion vested in it as a part of its ratemaking function. The court said: “If the Commission’s opinion is to be read as holding that granting an individual producer a rate increase at variance with the established area or national rate in order to accommodate an increase in royalty costs is forbidden by the Act under any circumstance, the Court of Appeals was surely correct in disagreeing with the Commission. In Permian Basin Area Rate Cases, 390 U.S. 747 (1968), the Commission urged that ‘nothing in the Constitution or in the Natural Gas Act require[s] the Commission to provide exceptions to the area rates,’ at least so long as the Commission permitted abandonment when costs exceed revenues, but it nevertheless pointed out that it had established a procedure whereby individual producers may seek relief from the applicable area rate. Brief for the FPC, O.T. 1967, Nos. 90 et al., p. 64. Similarly, in Mobil Oil Corp. v. FPC, supra, the Commission, responding to the possibility of certain producers facing higher royalty payments than the fixed percentage of total costs used by the Commission in setting the area rates, stated. — in agreement with the Court of Appeals — that ‘the issue is hypothetical at this stage and that if it becomes a reality producers may seek special relief from the Commission.’ Brief for Respondent FPC, O.T. 1973, Nos. 73-437 et al., p. 62. This Court proceeded on a similar assumption, saying that ‘in any event an affected producer is entitled to seek individualized relief.’ 417 U.S., at 328. “None of the foregoing is consistent with the proposition that the Commission is totally without power to give special relief to individual producers whose escalating royalty costs place them in an untenable position. In view of the scope of the discretion vested in the Commission to establish just and reasonable rates consistent with the public interest, we could not hold that the Act forbids special relief from area rates to accommodate increased royalty costs regardless of the circumstances. “Nevertheless, the Commission’s initial opinion and its opinion denying rehearing indicated that it is ‘not free’ and that ‘it does not have the power’ to give individualized relief where escalating royalty costs are a function of, or are otherwise based upon, an unregulated market price for the product the sale of which in the interstate market is regulated by the Commission. Erroneously, we think, the Commission sought support for these conclusions in [FPC v.] Texaco, 417 U.S. [380, 399, 41 L.Ed.2d 141, 94 S.Ct. 2315 (1974)], where we reminded the Commission that ‘[i]n subjecting producers to regulation because of anticompetitive conditions in the industry, Congress could not have assumed that “just and reasonable” rates could conclusively be determined by reference to market price.’ We did not, however, hold, as suggested by the Commission, that it ‘has no authority to permit rate increases based on royalty costs tied to the unregulated market for natural gas.’ Brief for Petitioner 13; see also id., at 16, 19, 21. Our concern in Texaco was that rates of small producers might be totally exempted from the Act, and we did not indicate that producer or pipeline rates would be per se unjust and unreasonable because related to the unregulated price of natural gas. Texaco did not purport to circumscribe so severely the Commission’s discretion to decide what formulas and methods it will employ to ensure just and reasonable rates. Indeed, the decision underscored the wide discretion vested in the Commission. See 417 U.S., at 387-393.” 439 U.S. at 514-17. Defendants indicate that, to their knowledge, such relief has not been granted by the FERC. This may be so, but there is nothing before us to indicate that such relief has been sought by these defendants and denied. The avenue for relief, though untried, remains open. We do not anticipate, as defendants argue, that a producer seeking such special relief must be on the brink of bankruptcy before relief will be granted. The producers have the protection of the Constitution, which prohibits the fixing of rates at a confiscatory level. See FERC v. Pennzoil Producing Co., 439 U.S. at 519. We adhere to Syllabus ¶¶ 3 and 4 of Lightcap, but in addition we hold that evidence of regulated natural gas prices is admissible on the issue of market value and should be considered by a trial court in determining that issue. The judgment of the trial court in determining market value is based upon substantial, competent evidence, is supported both factually and legally, and will not be disturbed. THE COMMERCE and SUPREMACY CLAUSE ARGUMENTS The defendants contend that if the trial court’s decision requiring the payment of additional royalties is upheld, the entire federal regulatory structure will be upset. They contend that by allowing increased royalties, the state has invaded the field of natural gas regulation preempted by federal authority, thus violating the commerce and supremacy clauses of the United States Constitution. Federal regulation, however, does not extend to the determination of royalties. As we pointed out in Lightcap, it was settled in Mobil Oil Corporation v. Federal Power Commission, 463 F.2d 256 (D.C. Cir.), cert. denied 406 U.S. 976 (1972), that “the FPC has no jurisdiction over a royalty owner or over a dispute between a royalty owner and his producer as to the amount of royalties payable under a gas lease.” 221 Kan. at 450. The arguments made here were fully answered in Lightcap, 221 Kan. at 452-57, and in FERC v. Pennzoil Producing Co., 439 U.S. 508, discussed above. We find no merit in them. WAECHTER REVISITED The trial court ruled that, with respect to “proceeds” leases, the defendants’ royalty obligations are limited to an accounting for the percentage fixed in the leases of the sale prices or proceeds actually received by the defendants for gas produced and sold. In Waechter, we held that under a royalty clause calling for one-eighth of the proceeds if sold at the well, the lessor was entitled to no more than his proportionate share of the amount actually received by the lessee for the sale of gas. Following Waechter, we held in Lightcap that where a lease calls for royalties based on the proceeds from the sale of gas, the proceeds means the money obtained from an actual sale, and the lessor of a proceeds lease is entitled only to his proportionate share of those proceeds. Plaintiffs, as cross-appellants, contend that lessors in proceeds leases should be paid a percentage of market value. This position was taken by one or more of the dissents in Waechter and Lightcap. The majority of this court, however, continues to adhere to the majority opinions in both Waechter and Lightcap, and we hold that the trial court properly and correctly decided the issue of royalty entitlements of lessors in proceeds leases. Plaintiffs also contend that lessees receive “hidden consideration” for the sale of gas produced, and that additional royalties are owed upon such consideration. This argument was not emphasized during the trial, and the trial court, apparently unpersuaded, did not mention it in its determination of the issues. The evidence upon which plaintiffs base this claim is scant, and for the most part consists of inferences to be drawn from the cross-examination of defendants’ witnesses. Plaintiffs claim that some of the producers negotiated with their purchasers to increase production in the Hugoton field in exchange for development of gas reserves elsewhere, that they reserved liquid extraction rights, and that some contracts for the sale of Kansas gas were tied in with contracts for the sale of gas located outside of the state. Taken at its best, this evidence does not demonstrate calculable income upon which royalties may be computed. Plaintiffs had the burden of proof on this issue and we cannot say that the trial court erred in failing to rule in plaintiffs’ favor, considering the modicum of evidence produced. SPECIAL ISSUE — GOOD v. ASHLAND OIL, INC. Ashland and its predecessors have maintained and operated a gathering system some 153 miles in length to serve a number of the leases which it produces in the Hugoton field. It transports gas to a central delivery point away from the wells; there it transfers the gas to Cities Service Pipeline. Ashland and Cities Service have entered into a long-term purchase contract, and Ashland pays royalties based upon the proceeds of this gas purchase contract. Ashland receives a gathering fee from Cities Service, which is not included in its royalty calculations. Ash-land maintains that the sale takes place at the wellhead, where the gas is metered. The trial court determined that because of Ashland’s gathering system, it retains possession and ownership of the gas until it passes to Cities Service at the delivery point. The leases in question are Waechter leases, and thus whether the gas is sold at the wellhead or off the premises determines whether royalties are to be determined from proceeds or market value. Ashland maintains that this point is controlled by Ashland Oil & Refining Company v. Staats, Inc., 271 F. Supp. 571 (D. Kan. 1967) and Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d 532, 571 P.2d 345, rev. denied 222 Kan. 749 (1977). We have reviewed both cases and find neither controlling; neither decided the issues before us. The primary holding in Staats is that Ashland does not owe royalties upon the gathering charges which it collects from Cities Service. Helmley, a class action, was concerned with whether the royalty owners were entitled to interest on certain suspense moneys held by Ashland. Neither case determined the point of sale of gas by Ashland to Cities Service, nor whether the leases were proceeds or market value leases, nor did either determine the market value of the gas. The trial court’s determination that the gas is sold off of the premises, though based upon disputed evidence, is supported by substantial, competent evidence, and we will not disturb that finding. SPECIAL ISSUE—DUDLEY v. AMOCO PRODUCTION COMPANY The Dudley case, filed in Stevens County, involves the same plaintiff class, the same leases, and the same defendant as were involved in Waechter. Amoco argued below and argues here that Waechter s conclusion as to “proceeds leases” precludes the finding of the trial court herein. Amoco’s basic claim is that Waechter determined that all of the leases involved in that lawsuit were proceeds leases, and thus Amoco’s royalty obligation is to be based on the proceeds actually received from the sale at the well and not upon market value. The trial court granted summary judgment in favor of the defendants as to all leases classified as “proceeds” leases under Waechter and Lightcap. The court also held that if the Dudley plaintiff class included any members whose leases qualified as “market value” leases under Lightcap, that his rulings on market value would be controlling. In Waechter, the litigated claims were stated as follows: “One claim is to determine whether Amoco as lessee under certain gas leases is obligated to account to the plaintiff-landowners for gas taken during the period June 23, 1961, to June 23, 1966, on the basis of 14.50 per thousand cubic feet at 14.65 pounds per square inch absolute instead of the lower prices actually paid to Amoco by the purchaser of the gas. The other claim is to determine whether Amoco is entitled to be repaid for overpayments of royalty it made to the plaintiff-landowners during the period from January 1, 1954, through December 22, 1957 '. .' . .” 217 Kan. at 490. Later the opinion says: “Although, as will be seen later, there are actually forty-eight different forms of royalty clauses in the leases, in somewhat similar language, plaintiffs and Amoco are agreed the royalty clause covering most of the approximately 600,000 acres involved and also that upon which all parties will stand or fall, provides as follows: “ ‘Lessee shall pay lessor monthly as royalty on gas marketed from each well one-eighth (%) of the proceeds if sold at the well, or, if marketed by lessee off the leased premises, then one-eighth (¥&) of the market value thereof at the well.’ ” 217 Kan. at 490. The question here is whether the agreement in Waechter precludes any of the lessors from now asserting that their leases are market value leases. Waechter determined that all of the sales of gas there involved were made at the wellhead; that issue was litigated, and appears to be res judicata. There was, however, no litigated issue as to whether any of the leases were strictly market value leases. An issue is res judicata when there is a concurrence of four conditions: “(1) [I]dentity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made.” Adamson v. Hill, 202 Kan. 482, 487, 449 P.2d 536 (1969). In Waechter, the parties sought a declaration of the meaning of the “Waechter” language in the leases and agreed to be bound thereby. They litigated whether that language was ambiguous, or whether it was clear, and whether under the facts such a lease was a proceeds or market value lease. No one sought a declaration that all leases involved were “proceeds” leases. The plaintiffs sought a declaration of the meaning of the Waechter clause, quoted earlier in this opinion. Thus, it would appear that there was no identity of the things sued for or identity of the cause of action. We conclude that the Waechter decision did not determine that all of the leases there involved were proceeds leases. Waechter is not res judicata on that issue, and the trial court did not err in its determination thereof. The judgment is affirmed.
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The opinion of the court was delivered by Herd, J.: This is an adoption proceeding. The district court ordered dismissal of an appeal from the district magistrate judge’s order of adoption. This appeal followed. Sandra Jantz is the mother of six children — Scarlet Rae Rice, Gerold Roe Rice, Darren Jantz, Aaron Jantz, William Justice and Robert Justice. On May 26, 1981, Ms. Jantz filed a motion in the Kiowa County District Court asking that her children, who were at the time in the care and custody of SRS due to her neglect, be returned to her. When the motion was filed Gerold Rice, born in September of 1967, was living with Ms. Jantz’s sister and brother-in-law, Leonard and Frances Beat, in Kingman, Kansas. Scarlet Rice, born in March of 1969, was living in a foster home in Wellington, Kansas. At this time Ms. Jantz also filed a motion for change of venue from Kiowa County to Johnson County. On September 8, 1981, the Kiowa County district judge entered a “Nunc Pro Tunc Journal Entry” denying the motion for change of venue but allowing an interlocutory appeal from the denial. Legal proceedings regarding Ms. Jantz’s children, however, were not confined to Kiowa County. Mr. and Mrs. Beat, who already had temporary custody of Gerold Rice, wanted to adopt him as their own. They also wanted to adopt Gerold’s sister, Scarlet. To that end the Beats obtained Ms. Jantz’s signature on a consent to adoption form for each child. The forms stated that Ms. Jantz gave her consent to the adoption of the children by Leonard and Frances Beat and that she waived notice of any adoption proceedings. Witnessed by Judge Michael Corrigan, Ms. Jantz signed the forms on June 2, 1981. Markie Rice, the father of Gerold, also signed a consent to adoption form. Mr. Rice was not the father of Scarlet Rice and no father was listed on her birth certificate. Armed with these consent forms Mr. and Mrs. Beat filed their petition for adoption of Gerold and Scarlet on July 21, 1981, in the Kingman County District Court. On August 24, 1981, Ms. Jantz filed a “Revocation of Consent to Adoption.” Nevertheless, the proceedings continued. A home study was conducted and filed with the court. After a delay SRS gave its consent to the adoptions. Ms. Jantz, however, would not give up. First, she appealed the Kingman County district magistrate judge’s decree of adoption regarding Gerold and Scarlet to the district court. Then, on July 2, 1982, she filed a motion to show cause in Kiowa County, alleging SRS and the State of Kansas were in contempt of court because they had not returned her children to her. On the same day, however, the Kingman County District Court dismissed her appeal. Appellee raises the threshold question of jurisdiction claiming Ms. Jantz failed to file an appeal bond with the district magistrate judge. K.S.A. 1982 Supp. 59-2401 governs appeals in cases such as this: “(a) An appeal may be taken within thirty (30) days from the date of entry of any of the following orders, judgments, decrees and decisions: “(21) An order decreeing, or refusing to decree, an adoption. “(b) Notwithstanding the provisions of K.S.A. 60-2103, and any amendments thereto, relating to bonds, the appellant, other than the state or municipality or a fiduciary appealing on behalf of the estate, shall file in the court from which the appeal is taken a bond in such sum and with such sureties as may be fixed and approved by the court, conditioned that said appellant will without unnecessary delay prosecute the appeal and pay all sums, damages and costs that may be adjudged against said appellant.” Appellant has failed to file an appeal bond with the magistrate judge even though admonished by the district judge and given additional time to do so. Under the statute the filing of such a bond is mandatory. See In re Estate of Kempkes, 4 Kan. App. 2d 154, 159, 603 P.2d 642 (1979). Still, it has been held mere out-of-time filing of an appeal bond does not defeat appellate jurisdiction where notice of appeal is timely filed because denial of an appeal on technical procedural grounds “should not serve as the basis for dismissing the appeal if the interests of justice dictate otherwise.” In re Estate of Zahradnik, 6 Kan. App. 2d 84, 89, 626 P.2d 1211 (1981). See also In re Estate of Duncan, 7 Kan. App. 2d 196, 198-99, 638 P.2d 992, rev. denied 231 Kan. 800 (1982). We approve of these previous opinions by the Court of Appeals. The situation here, however, is much different. In the case before us Ms. Jantz made no attempt to file the appeal bond out of time. She simply refused to do so even though the district court gave her every opportunity. The statute makes it clear the appeal bond must be filed at some time. When Ms. Jantz failed to do so the district court was without jurisdiction. The judgment of the district court dismissing the appeal is affirmed.
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The opinion of the court was delivered by Prager, J.: This is a direct appeal by the defendant, Robert Green, from the sentence imposed and denial of probation after Green had entered a plea of guilty to aggravated robbery (K.S.A. 21-3427). The defendant does not challenge his conviction. He contends that the sentence imposed and the denial of probation constituted an abuse of discretion by the district court. The State, at the outset, raises a jurisdictional issue. It maintains that, under the Kansas Code of Criminal Procedure, the Kansas appellate courts have no jurisdiction to review the sentence imposed or a denial of probation in any case where the conviction is the result of a plea of guilty by the defendant. It is the State’s position that, under those circumstances, defendant’s only remedy is a proceeding brought pursuant to K.S.A. 60-1507. In its brief, counsel for the State concedes that the appellate courts have jurisdiction to review sentences and probation orders in cases where defendant is found guilty after a jury trial or trial to the court. In the past, the appellate courts of Kansas have permitted a review of the sentence imposed or denial of probation in a criminal case. In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), it was held that when a sentence is fixed by a trial court, within permissible limits of the applicable statutes, the sentence is not erroneous and, in the absence of special circumstances showing an abuse of judicial discretion, will not be disturbed on appeal. The judicial discretion with which a court is vested is one to be exercised not arbitrarily, but soundly, and with due regard to what is right and equitable under the circumstances and the law. In State v. Caldrone, 218 Kan. 471, 543 P.2d 1028 (1975), the defendant appealed from the denial of a motion to reduce the defendant’s term of confinement filed pursuant to K.S.A. 21-4603, after the defendant’s original conviction had already been considered in a previous case and affirmed by this court. In State v. Rios, 225 Kan. 613, 592 P.2d 467 (1979), an appeal was taken from the denial of a motion to modify sentence filed under the same statute. Appeals have also been taken by a defendant and determined by this court from orders of a district court involving probation matters. In State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982), a direct appeal was permitted from an order which modified the restitution provision of an earlier order of probation. The State challenged appellate jurisdiction in a probation matter, relying on State v. Benson, 207 Kan. 453, 458, 485 P.2d 1266 (1971). Benson holds that a decision of a trial court denying probation is not a subject for review by an appellate court. In Yost, the court refused to follow Benson and held that, although a trial court has exclusive and continuing jurisdiction in probation matters, the orders of a trial court are subject to appellate review for illegal action or abuse of discretion. Our decision in Yost is consistent with the recently developed policy of this court to allow appellate review of sentences, including a denial of probation. Since Benson was decided, the appellate courts in this country have recognized the public interest in permitting appellate review of sentences. The American Bar Association Standards for Criminal Justice Relating to Appellate Review of Sentences provides in Standard 1.1 that judicial review should be available for all sentences imposed in cases where provision is made for review of the conviction. Standard 1.2 states as follows: “The general objectives of sentence review are: “(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest; “(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence; “(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and “(iv) to promote the development and application of criteria for sentencing which are both rational and just.” As noted above, our more recent cases have followed these standards and permitted appellate review of sentences. Probation is an integral part of the Kansas sentencing process, since, under our statutes, probation is one of the alternatives which may be imposed by a trial court in sentencing a defendant. See K.S.A. 21-4603. We reject the holding and any language to the contrary in State v. Benson, 207 Kan. 453. The jurisdictional issue raised by the. State requires us to consider the impact of K.S.A. 22-3602(a) which provides as follows: “(a) An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate 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.”' Simply stated, it is the State’s position that the exception in K.S.A. 22-3602, that no appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, precludes review of a sentence imposed after a plea of guilty or nolo contendere. Although at first blush this contention would seem to have merit, we have concluded that the Kansas statutory scheme does not require such a result. It should be noted that K.S.A. 22-3602 provides that an appeal to an appellate court may be taken by the defendant as a matter of right from any judgment against the defendant in the district court. K.S.A. 21-3110 defines the term “conviction” as follows: “ ‘Conviction’ includes a judgment of guilt entered upon a plea of guilty.” Under K.S.A. 22-2201, words or phrases which are defined in the Kansas criminal code are to be given the same meanings when used in the Kansas Code of Criminal Procedure. Under K.S.A. 22-3422, the court in a criminal case, following either a verdict of guilty or a finding of guilty by the trial court or after entry of a plea of guilty, pronounces a judgment of conviction against the defendant. Following the judgment of conviction, the sentencing process begins and provision is made for adequate time for the filing and disposition of post-trial motions and for completion of the presentence investigation. (K.S.A. 22-3424[3]). The court then imposes sentence which may include the granting or denial of probation. It is clear that this is a judgment of sentence as distinguished from the prior judgment of conviction. We also note K.S.A. 22-2103, which requires the courts of this state to construe the criminal code to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. It is clear to us that, by permitting a direct appeal from the sentence imposed or denial of probation in any case following defendant’s conviction either by trial or plea of guilty, the result will be simplicity in procedure and the elimination of unjustifiable expense and delay. If the position of the State is correct that, in order to challenge his sentence or denial of probation, a defendant must file a new separate action pursuant to K.S.A. 60-1507, with the appointment of an attorney to represent him in that proceeding and affording the defendant a new evidentiary hearing if merited by the allegations of the petition, the result would be contrary to the stated purpose of the Kansas Code of Criminal Procedure to secure simplicity in procedure and to eliminate unjustifiable expense and delay. In the past, this court has permitted appeals from the sentence imposed after a plea of guilty and has determined whether the district court’s sentence constituted an abuse of discretion. See for example State v. Reeves, 232 Kan. 143, 652 P.2d 713 (1982), where it was held that the trial court had failed to follow the mandates of K.S.A. 21-4601 and 21-4606 in sentencing the defendant, and as a result thereof the trial court had abused its discretion. The sentence was set aside and the case was remanded for sentencing in accordance with the statutory provi sions. The issue of jurisdiction of the supreme court was not raised in Reeves. We find no Kansas cases holding specifically that the Kansas appellate courts have jurisdiction to review a sentence or denial of probation following a plea of guilty or nolo contendere by a defendant. We have no hesitancy, however, in holding that a direct appeal by the defendant from the sentence imposed in a criminal action following a plea of guilty is permissible under the Kansas Code of Criminal Procedure and that the appellate courts of Kansas have jurisdiction to determine the appeal. We hold, however, that if a direct appeal is taken under those circumstances, the identical issue may not be raised again in a subsequent proceeding brought under K.S.A. 60-1507 in the absence of changed or unusual circumstances. We further hold that K.S.A. 60-1507 is an alternative remedy which may be used to challenge a sentence, if no direct appeal was taken by the defendant attacking the sentence imposed. We thus find that this court has jurisdiction in this case and we will proceed to consider the merits of the defendant’s appeal. The rule is clearly established that when a sentence is fixed within the permissible limitations of the applicable statute the sentence, in the absence of specific circumstances showing an abuse of discretion, will not be disturbed on appeal. The facts in this case are undisputed and aré as follows: The case arose out of the aggravated robbery of the Travelers Market in Grandview Plaza, Geary County, Kansas, by a lone robber armed with a knife. The robber was the defendant, Robert Green, who had recently been court martialed and suspended by the United States Army. The defendant robbed the store in order to obtain money to return to his home in Pennsylvania. The evidence showed that the defendant put a knife to the victim’s throat and threatened to kill him if he did not pay over the money from the cash register. As a result of this threat, about $200 was obtained. Prior to sentence, a report was prepared in which the district court services officer did not recommend probation to the court, but recommended the minimum sentence. The defendant had a prior juvenile misdemeanor charge involving marijuana. The district court imposed a sentence of six to twenty years for aggravated robbery, a class B felony. Under K.S.A. 1982 Supp. 21-4501 the sentence prescribed for a class B felony is a minimum of not less than five years and not more than fifteen years and a maximum of not less than twenty years nor more than life. We have considered the entire record in the case and concluded that, under the circumstances, the sentence and denial of probation did not constitute an abuse of discretion by the sentencing court. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Herd, J.: This is an action for breach of contract. The appeal is from the trial court’s order granting judgment on the counterclaims of Frank Crotts and Glenn Henley. A contract for the construction of a low-income housing project in Lakin is the issue from which this case arose. The original contract for the project was let to Essex Corporation as the general contractor on March 15, 1978. On March 23, 1978, Essex acquired a “Labor and Material Payment Bond” from Inland Insurance Company and Universal Surety Company. Essex subcontracted the job to Heritage Construction Management Company. Pursuant to a contract dated April 21, 1978, Heritage subcontracted to Arrowhead Construction Company of Dodge City. Arrowhead then discussed a possible subcontract for some of the work with Frank Crotts and Glenn Henley. The existence of a firm contract between Crotts and Henley and Arrowhead is a matter of dispute and will be discussed in more detail later. Nevertheless, Crotts and Henley began work on the Lakin project on June 6, 1978, and completed a substantial portion of the work they set out to perform. During the course of the construction project Heritage became concerned by the failure of Arrowhead to complete the job. As a result Heritage hired another contractor to finish the project. Arrowhead’s last day on the Lakin project was August 3, 1978. On August 15, 1978, Arrowhead filed a mechanics’ lien statement against the premises claiming a balance due from Heritage of $21,768.00. Crotts and Henley, in turn, filed a mechanics’ lien on August 30, 1978, claiming a balance due from Arrowhead of $6897.00. On December 11, 1978, Arrowhead filed a petition in Kearny County District Court listing as defendants Essex, Universal, Inland, Heritage, the City of Lakin and Crotts and Henley. The petition alleged Heritage breached its contract by failing to pay money owing to Arrowhead. It also alleged Essex was liable for Heritage’s debt as general contractor and that Universal and Inland were liable for the debt on the labor and material payment bond. Finally, it asked that the priority of Crotts and Henley’s lien be determined in the same action. Crotts and Henley filed their answer asking the court to determine the liability of Essex, Universal and Inland. In their counterclaim against Arrowhead they alleged the existence of a contract between the two parties pursuant to which Arrowhead would pay Crotts and Henley $8397.00. Crotts and Henley claimed they performed their part of the bargain but that Arrowhead had paid them only $1500.00. Finally, Crotts and Henley filed a cross-claim alleging Essex, as the general contractor, was liable for Arrowhead’s breach and that Universal and Inland were liable as sureties. The other corporate defendants, Essex, Universal, Inland, and Heritage, were represented by John G. Sauer of Garden City. They filed their answer on February 9, 1979. With respect to Arrowhead’s petition they offered twelve defenses, including the ninth which alleged, “Plaintiff cannot recover upon the labor and material payment bond because it failed to comply with the notice requirements thereof.” In its counterclaim to Arrowhead’s petition these defendants alleged breach of contract by Arrowhead. With regard to Crotts and Henley’s cross-claim these defendants offered nine defenses. Their fourth defense alleged, “Defendants Crotts and Henley cannot recover upon the labor and material payment bond because they failed to comply with the notice requirements thereof.” The seventh defense claimed, “Defendants Crotts and Henley cannot recover against any of these defendants because it lacks privity of contract with them.” The eighth defense asserted, “Defendants Crotts and Henley are not a proper claimant under the labor and material bond as they have no direct contract with the principal, Defendant Essex Corporation, or with the sub-contractor of the principal, defendant Heritage Construction Management Company.” On April 30, 1979, the defendants Essex, Universal, Inland, and Heritage, filed a “Motion for Judgment on the Pleadings” asking the court to discharge the liens previously filed by Arrowhead and Crotts and Henley. In support of this motion the defendants alleged the labor and material payment bond ac quired by Essex was a “statutory public works” bond pursuant to K.S.A. 60-1111 which authorizes the discharge of previously filed liens when such a bond is filed with the district court. On May 7, 1979, the district court issued an “Order Granting Judgment on the Pleadings.” The court found the bond complied with K.S.A. 60-1111 as a public works bond and as such discharged the liens previously filed by Crotts and Henley and Arrowhead. The May 7 order was the result of a compromise between the parties pursuant to which, on July 9, 1979, attorney Sauer filed “amendments” to the defendants’ answers to the claims of Arrowhead and Crotts and Henley. The defendants admitted Arrowhead had complied with the notice requirements of the labor and material payment bond, thereby abandoning their ninth defense. With regard to the claims of Crotts and Henley the defendants’ answer was amended to admit the allegations Essex was liable as general contractor in the absence of payment by its subcontractors and that Crotts and Henley had fully complied with the notice requirements of the labor and material payment bond. Accordingly, the defendants abandoned their defenses against Crotts and Henley dealing with privity and the notice requirements of the bond. Armed with these admissions Crotts and Henley filed their own motion for judgment on the pleadings July 3, 1980, alleging Arrowhead had admitted the allegations in their counterclaims by failing to answer. On August 13, 1980, the trial court held: “[T]he only factual controversy as to the amount due the defendants Crotts and Henley and the quality of their work is a question as to whether or not a certain overhang was built incorrectly . . . .” The court further found “this small controversy is separable from the other controversies involved in the case . . .” and ordered it tried as a separate matter. Previously, on October 18, 1979, attorney Sauer withdrew from the case and left the practice of law for another occupation. It was not until shortly before the court’s order on August 13, 1980, severing the trial that defendants’ present counsel, Mr. Kenneth Peirce, entered the case. A year later on September 11, 1981, a pretrial conference was held. At that time the trial of Crotts and Henley’s claim was set for September 22, 1981. The other issues were tentatively set for trial January 12, 1982. With regard to the claims of Crotts and Henley the court further stated in part: “[I]f Crotts and Henley are successful in their claim for monies due and owing from Arrowhead, said sums shall be paid by Universal Surety Company and/or Inland Insurance Company. The Court finds as its basis for such ruling: “1. The parties are estopped from asserting that no written notice of Crotts and Henley being subcontractors of Arrowhead because Essex and Heritage had actual knowledge of Crotts and Henley working on the project, and further Crotts and Henley received materials and directions from employees of Essex and Heritage. “2. The defendants, Essex, Heritage, Universal and Inland waive their defense of written notice.” At the pretrial conference defendants requested they be allowed to withdraw their admissions made on July 9, 1979. They argued they were erroneous admissions of law. Essentially, defendants desired to reinstate their original answer. The trial court refused to grant their request. The case was tried to the court on September 22, 1981. The trial court found for Crotts and Henley, holding they had a contract with Arrowhead at $1.35 per square foot and granted them judgment in the amount of $6519.00 with interest at 12% from the date of judgment against Arrowhead with Universal Surety Company and Inland Insurance Company as sureties. The court denied prejudgment interest. The defendants Universal and Inland have appealed. Crotts and Henley also appeal the trial court’s failure to award them prejudgment interest. The other matters scheduled to be tried in January of 1982 have been temporarily stayed. Appellants first claim the trial court erred in refusing to allow them to reinstate their original answer by withdrawing the admissions made in the pleadings filed July 9, 1979. They argue their attorney John G. Sauer made errors of law in the admissions which are subject to correction. It is well established that a court is not bound by erroneous stipulations or admissions with regard to questions of law. State, ex rel., v. Masterson, 221 Kan. 540, 551, 561 P.2d 796 (1977); Urban Renewal Agency v. Reed, 211 Kan. 705, 712, 508 P.2d 1227 (1973). The essence of this claim pertains to appellants’ attorney’s stipulation the labor and material payment bond is a statutory public works bond in compliance with K.S.A. 60-1111 and that notice requirements had been met to invoke the bond. Let us examine the bond statute and review the circumstances surrounding the stipulations to determine if this issue falls within the definition of erroneous stipulation of law. K.S.A. 60-1111 deals with public works bonds. It provides: “Whenever any public official shall, under the laws of the state, enter into contract in any sum exceeding one thousand dollars ($1,000) with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take, from the party contracted with, a bond to the state of Kansas with good and sufficient sureties in a sum not less than the sum total in the contract, conditioned that such contractor or the subcontractor of said contractor shall pay all indebtedness incurred for labor furnished, materials, equipment, or supplies, used or consumed in connection with or in or about the construction of said public building or in making such public improvements.” “The bond shall be approved by and filed with the clerk of the district court of the county in which such public improvement is to be made. When such bond is filed, no lien shall attach under this article, and if when such bond is filed liens have already been filed, such liens shall be discharged. Any person to whom there is due any sum for labor or material furnished, as stated in the preceding section, or his or her assigns, may bring an action on said bond for the recovery of said indebtedness but no action shall be brought on said bond after six (6) months from the completion of said public improvements or public buildings.” The bond furnished by Essex, as principal, was issued in favor of the City of Lakin. It provided in pertinent part: “THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the contract then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions: “A claimant is defined as one having a direct contract with the Principal or with a Subcontractor of Principal . . . .” A statutory public works bond has two characteristics which are important to a discussion of this issue. First, such a bond applies to “all indebtedness” incurred in making public improvements. Thus, no privity with the general contractor is required. Second, such a bond, properly filed, acts to discharge all liens filed in connection with the construction. It is apparent the bond furnished the City of Lakin did not technically comply with the statute since it limited its coverage to claimants having a direct contract with Essex. This case presents a complicated factual situation. Arrowhead and Crotts and Henley had filed mechanics’ liens on the premises. Appellants could not be paid until the liens were released. They were therefore anxious to have the liens discharged. Through their attorney they requested the trial court to declare the labor and material payment bond acquired by Essex a public works bond pursuant to K.S.A. 60-1111. Such a holding would operate to discharge the liens. The trial court relied on appellants’ stipulation and granted the request on May 7, 1979. Later appellants amended their pleadings to conform to the May 7 order and struck the defenses relating to the privity and notice requirements of the bond. Now appellants wish to withdraw the amendments to enable them to argue Crotts and Henley are not claimants under the express conditions of the bond. Essentially, then, appellants are claiming the May 7 order which declared the bond was a statutory public works bond pursuant to K.S.A. 60-1111 was based on a mistake of law. Appellants’ theory is that in the motion asking for the May 7 order and in the subsequent amendments to appellants’ original pleadings, their attorney made erroneous admissions of law. Indeed, it is true the stipulation turned the labor and material payment bond into something it technically was not. However, important reasons weigh against reversal of the trial court. First, contrary to appellants’ argument, there was no mistake of law. Mr. Sauer was obviously quite aware a public works bond was required of Essex and the one on file did not comply with the statute. He was also aware the failure to file a proper bond would prevent the city from paying Essex. Finally, he was concerned about the liens filed by Arrowhead and Crotts and Henley. Sauer set out to remedy this situation by stipulating the bond’s coverage to meet the statutory requirements. This stipulation was agreed to by all parties and the trial court. No one was operating under any mistaken beliefs. Further, this is a classic case for the assertion of the doctrine of estoppel. As a general rule parties to an action are bound by their pleadings and judicial declarations and are estopped to deny or contradict them where the other parties to the action relied thereon and changed their position by reason thereof. 28 Am. Jur. 2d, Estoppel and Waiver § 71, p. 701. As noted above Crotts and Henley did not object to the stipulation that the bond was a statutory public works bond. Instead they relied on the stipula tion and in the process gave up their ultimate remedy — foreclosure on their lien. They then had to depend upon their ability to prove their breach of contract claim against Arrowhead. Obviously, it would be prejudicial to Crotts and Henley to allow appellants to change their position at this late date. See Cosgrove v. Young, 230 Kan. 705, Syl. ¶ 6, 642 P.2d 75 (1981). Finally, appellants previously acquiesced in the trial court’s judgment to their benefit and cannot now object to it on appeal. Halpin v. Frankenberger, 231 Kan. 344, 348, 644 P.2d 452 (1982). Appellants next argue the trial court erred in finding a firm contract existed between Crotts and Henley and Arrowhead. The question as to whether a binding contract was entered into depends upon the intention of the parties and is a question of fact. Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 60, 643 P.2d 100 (1982). As such, this court’s function is only to determine if the trial court’s finding there was a contract is supported by substantial competent evidence. International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, Syl. ¶ 8, 639 P.2d 29 (1982). If it is, there was no error. In Steele v. Harrison, 220 Kan. 422, 428, 552 P.2d 957 (1976), this court reiterated the basic rules regarding contract formation: “In order for parties to form a binding contract there must be a meeting of the minds on all the essential terms thereof. [Citations omitted.] To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract.” See also Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107 (1981). Appellants argue here the parties had not agreed on the essential term of price. The evidence shows Arrowhead and Crotts had originally discussed a “ball park” base bid figure of around $1.25 per square foot for rough framing carpentry work, but a firm figure was never specifically agreed on. Nevertheless, Crotts and Henley began work and later received a written contract from Arrowhead specifying payment at $1.25 per square foot. Crotts never signed that contract but instead informed Arrowhead he would require payment of $1.35 per square foot. Crotts and Henley continued to work until they realized they were not' going to be paid. Nothing was ever settled regarding the price. The Restatement (Second) of Contracts § 33 (1981), offers some guidance here: “(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. “(2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. “(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.” Comment a to this section makes clear the omission of a single term is not always fatal to the contract: “[T]he actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon. In such cases courts endeavor, if possible, to attach a sufficiently definite meaning to the bargain. “An offer which appears to be indefinite may be given precision by usage of trade or by course of dealing between the parties. Terms may be supplied by factual implication, and in recurring situations the law often supplies a term in the absence of agreement to the contrary.” The Restatement assumes courts will, in such instances, supply a term which is “reasonable in the circumstances.” (See Section 204.) This term should be one which “comports with community standards of fairness and policy . . . .” Comment d, § 204. More specifically, Comment e to Section 33 states: “Where the parties manifest an intention not to be bound unless the amount of money to be paid by one of them is fixed or agreed and it is not fixed or agreed there is no contract. Uniform Commercial Code § 2-305(4). Where they intend to conclude a contract for the sale of goods, however, and the price is not settled, the price is a reasonable price at the time of delivery if (a) nothing is said as to price, or (b) the price is left to be agreed by the parties and they fail to agree, or (c) the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded. Uniform Commercial Code § 2-305(1). Or one party may be given power to fix the price within the limits set by agreement or custom or good faith. Similar principles apply to contracts for the rendition of service.” Here the evidence clearly shows the parties intended to be bound by a contract. They discussed the particulars of the project beforehand, Crotts and Henley began work, a representative of Arrowhead visited with them at the project site where Crotts and Henley informed him of their requested price, and Crotts and Henley continued working with no objection from Arrowhead. Further, the reasonableness of the price term supplied by the trial court is clear. At trial Arrowhead’s principal, Wayne Hunter, testified “for the amount of work they had to do and under the circumstances $1.35 would have been extremely reasonable.” This issue is without merit. Appellants next argue the trial court erred in admitting the hearsay testimony of Tony Bottiato, an employee of Heritage. One of the issues at trial was whether Crotts and Henley had properly constructed a certain overhang. Crotts claimed he had no details regarding the specific length of the overhangs, so he asked Mr. Bottiato, who was at the jobsite. Following is an excerpt from the transcript: “Q: After you had completed the structuring end of this unit, of the storage area, how did you decide what length to cut the overhangs? “A: We inquired of Mr. Bottiato what they required for overhang on that since we didn’t have any details. He figured a little bit and said — “MR. PEIRCE: (Interrupting) Objection to anything he might have said, Your Honor. “MR. DANIEL: I would advance the argument that Mr. Bottiato is a project engineer for Heritage and is in fact an agent or representative of Heritage Construction Company, and that’s a statement against interest and well within — “THE COURT: (Interrupting) In this instance, the objection is overruled and he may answer. “Q: (By Mr. Daniel) What were you told by Mr. Bottiato? “THE COURT: No. That’s not the question that was asked. “MR. DANIEL: Could you read it back for me, please? “Q: (By Mr. Daniel) Could you answer that, please? “A: Yes, sir. We made an inquiry of Mr. Bottiato what was required as a overhang on these units seeing as we didn’t have any plans, and he did figure a little bit and indicated to us what they required that they wanted for an overhang. “Q: Pursuant to those indications, did you in fact cut the rafters at that point in time? “A: Yes, sir.” Hearsay is evidence of an out-of-court statement asserting that a fact is true and offered to prove the truth of the matter asserted. K.S.A. 1982 Supp. 60-460. Hex-e, no “statement” was offei'ed. There was only the fact that Mr. Bottiato made a statement to Crotts. No one testified regarding the content of that statement. As such, the evidence was not hearsay. In their cross-appeal Crotts and Henley argue the trial court erred in not awarding them prejudgment interest on their damages. In First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 537, 562 P.2d 32 (1977), this court set out the general rule regarding prejudgment interest on damages in a breach of contract action: “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.” Appellees cite Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P.2d 555 (1969), for their claim that the fact there was a question as to the amount of setoff to be awarded to appellants does not change the liquidated nature of the appellee’s damages on breach of contract. This is true. In Phelps, however, the trial court found the total indebtedness due on account was not disputed. Here, on the other hand, that amount was contested. Appellants claim there was never a firm contract and if there was, the price was $1.25 per square foot. Thus the amount of damages was not liquidated until the trial court found there was a contract for $1.35 per square foot and entered judgment accordingly. The trial court did not err in denying prejudgment interest. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by Miller, J.: This is an injunction action filed by the plaintiff, R. W. Cook, against the defendant, City of Enterprise, Kansas, challenging the validity of one of the city’s ordinances. The facts were stipulated. The District Court of Dickinson County denied plaintiff s motion for summary judgment, determined the issues adversely to the plaintiff, and entered judgment denying him the relief sought. Plaintiff appeals. Plaintiff is the owner of certain real estate within the city limits of Enterprise, a city of the third class in Dickinson County, Kansas. Plaintiff rented one of his lots to a Mrs. Branham, and she placed a mobile home thereon. Mrs. Branham later rented the home to a Mrs. Benson. Mrs. Benson paid rent for the mobile home to Mrs. Branham, and rent for the land to the plaintiff. Mrs. Benson ultimately moved, leaving several unpaid utility bills from the City of Enterprise for electrical service. The City of Enterprise operates its own electrical distribution system. In 1980, the City adopted Ordinance No. 1020, which was published once in The Chapman Advertiser and Enterprise Journal on December 24, 1980. The ordinance reads: “ORDINANCE NO. 1020 “AN ORDINANCE PROVIDING FOR THE PAYMENT OF ALL CHARGES FOR ELECTRIC AND WATER-SEWAGE UTILITY SERVICES BY THE OWNERS OF PROPERTY TO WHICH SAID WATER AND ELECTRIC AND SEWAGE SERVICES ARE PROVIDED, WHETHER WITHIN OR WITHOUT THE CITY LIMITS, AND ALSO PROVIDING FOR LIABILITY FOR SAID CHARGES BY THOSE USING SAID UTILITIES. “Be it Ordained by the Governing Body of the City of Enterprise, Kansas: “Section 1. All owners of real estate property within or without the City of Enterprise, Kansas, to which is supplied electric and-or water and sewage service services are hereafter liable to the City of Enterprise, Kansas, for the charges for providing such city electric, water and sewage services. “Section 2. Said liability for said charges is concurrent with any person or persons residing upon said real property and who is deemed to be the actual user of said service. “Section 3. In the event such service charge or charges for the use of said water and sewage disposal system and electrical system be not paid within the time and in the manner as by the ordinance of this city provided, the city clerk shall certify to the county clerk of Dickinson County the legal description of the real property enjoying the said use of said sewage disposal system, and water system and electric service, together with the amount of such charge or charges shall remain unpaid and to be placed on the tax rolls for collection, subject to the same penalties and collected in like manner as other taxes are by law collectible and shall become a lien upon the real property so served. “Section 4. All ordinances or parts of ordinances in conflict herewith are hereby repealed, preserving however all other provisions of ordinances in connection with assessments, billings and control of service by the city utility departments affected. “Section 5. This ordinance shall take effect upon its publication in the official city newspaper.” In July, 1981, the City advised plaintiff of Mrs. Benson’s unpaid utility bills and requested payment; plaintiff did not pay and the City then certified the amounts of the unpaid bills, together with a description of the real property, to the county clerk in order that the charges should become a lien upon the real estate pursuant to Ordinance No. 1020. Plaintiff brought this action in an effort to have the ordinance declared invalid. Plaintiff first argues that the ordinance was not lawfully promulgated. K.S.A. 12-1651 states the qualifications for official city newspapers for cities of the second and third class, There is no question but that The Chapman Advertiser and Enterprise Journal meets the basic qualifications set forth in that statute. K.S.A. 12-1651a also deals with official city newspapers. It states: “At the first meeting of the newly elected city governing body it shall designate a newspaper to be the official city newspaper for the ensuing year. The official city newspaper shall thereafter be designated annually.” The Enterprise Journal was designated by resolution as the official newspaper of the City of Enterprise from 1959 through 1971. Thereafter, no resolution designating the official city newspaper was adopted. The Chapman Advertiser and The Enterprise Journal merged sometime, but the record does not make it clear exactly when that occurred. At any rate, according to the Enterprise City Clerk, every ordinance requiring publication from 1959 to the publication of Ordinance No. 1020 was published in The Enterprise Journal or its merged successor, The Chapman Advertiser and Enterprise Journal. Plaintiff contends that because the Advertiser-Journal was not designated by ordinance in 1980 as the official city newspaper, Ordinance No. 1020 was not lawfully promulgated. He bases this argument on Article 12, Section 5(b), the Home Rule amendment of the Kansas Constitution, which provides in part that: “Cities are hereby empowered to determine their local affairs and government .... Cities shall exercise such determination by ordinance passed by the governing body.” (Emphasis added.) Plaintiff overlooks another provision of Section 5(b), which provides that: “All enactments relating to cities now in effect . . . shall govern cities except as cities shall exempt themselves by charter ordinances . . . .” K.S.A. 12-1651a was enacted by the legislature in 1959, and has not since been amended or repealed. It was in full force and effect at the time the Home Rule amendment was adopted in 1960. The statute does not require designation of an official city paper by ordinance; it does not state how designation is to be effected. We read the statute as directory rather than mandatory. Here, where the City officially designated the newspaper as its official city newspaper and then continued to utilize it for local publication of its ordinances over a period of many years, the purpose of the statutes requiring publication of ordinances, and of K.S.A. 12-1651a requiring designation of an official city newspaper, are fully accomplished. Plaintiff s argument is not persuasive. We hold that The Chapman Advertiser and Enterprise Journal was sufficiently designated as the official city newspaper, and the ordinance was properly published therein. Plaintiff next argues that Ordinance No. 1020 was not properly promulgated because K.S.A. 12-137 requires two publications. That statute provides in substance that when a city, under the Home Rule amendment, by ordinance proposes to levy for revenue purposes any tax, excise, fee, charge or other exaction, such ordinance shall be published once each week for two consecutive weeks in the official city newspaper. That statute, however, applies only to the efforts by a city to levy taxes or other exactions for revenue purposes. Utility rates and the collection thereof are not within the purview of K.S.A. 12-137; that statute applies only to tax and tax-like measures. The lien created by the ordinance under attack is not a revenue measure, and the lien in question does not arise from the Home Rule power. The trial court correctly concluded that the statute is not applicable here. Finally, plaintiff argues that the imposition of a lien upon his property without prior notice to the landlord that the tenant is not paying his or her utility bills constitutes a taking without due process. The general rule as to liens arising for nonpayment of municipal utility bills is stated in 12 McQuillin, Municipal Corporations § 35.38 (3d ed. rev. 1970) as follows: “The general rule is that water rates or rents are not a lien on the property served unless it is so provided by statute or otherwise, in express, unambiguous terms. But in some jurisdictions, by statute or otherwise, water rents, where unpaid, are a lien on the property, even for water used by a tenant or former occupant, and such legislation has been upheld as constitutional.” This rule is equally applicable to rates charged by a municipality for electrical service. See also Annot., Electricity, Gas or Water Charges, 19 A.L.R.3d 1227 and 64 Am. Jur. 2d, Public Utilities §61. Plaintiffs due process arguments are answered and refuted by the decision of the United States Supreme Court in the case of Dunbar v. City of New York, 251 U.S. 516, 64 L.Ed. 384, 40 S.Ct. 250 (1920). In that case a landlord attacked a lien created by the charter of the City of New York against the landlord’s property for water consumed by a tenant. The court held that the landlord’s property is not being taken without due process within the meaning of the Fourteenth Amendment; that it could reasonably be implied that the landlord consented to the use of water by the tenant and had knowledge of the law and the provisions of the city charter. In like manner, we hold that it is not arbitrary or a denial of due process to require a landlord to pay for utility services which ultimately benefit his property, even though the primary obligation to pay for those services is upon the tenant. As the Dunbar court observed: “A city without water would be a desolate place and if plaintiff s property was in such situation it would partake of the desolation. And as a supply of water is necessary it is only an ordinary and legal exertion of government to provide means for its compulsory compensation.” 251 U.S. at 518. That statement, in modern day context, is equally applicable to municipally furnished electrical service. The judgment is affirmed.
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The opinion of the court was delivered by Schroeder, C.J.: This is a criminal appeal by the State from an order of the Ellis County District Court dismissing a complaint charging Thomas W. Zimmerman and Philip Mark Schmidt (defendants-appellees) with burglary (K.S.A. 21-3715). At the close of the preliminary hearing the district court ruled the element of entry had not been shown by the State and ordered that the charge be dismissed. The following evidence was presented by the State at the preliminary hearing. In the late afternoon on August 5, 1982, Terry Karlin arrived at B & S Distributors, a wholesale beer distributorship in Hays, Kansas, to visit one of the employees. Two employees, Jim Mall and Neil Schmidt, had just finished loading the beer delivery truck for the next day’s deliveries, and were cleaning up in the warehouse. The beer delivery truck was parked along the street in front of the garage door of the warehouse. Upon arriving at the warehouse Terry Karlin observed defendant Philip Mark Schmidt carrying “at least a couple” of cases of “Black Label” brand beer across a parking lot east of the warehouse. As Karlin was walking toward the door of the warehouse he also noticed defendant Tom Zimmerman sitting in a car parked in a parking lot west of the warehouse. Shortly after Karlin’s arrival, while working in the back of the warehouse, Jim Mall saw defendant Schmidt through an open door walking west down an alley behind the warehouse. Looking closer, Mall observed that Schmidt was carrying cases of Black Label beer. Mall informed Neil Schmidt they had been “ripped off.’’ Neil Schmidt ran into the alley and obtained the license tag number of a car going down the alley. Earlier, Neil Schmidt had observed Tom Zimmerman sitting in a car near the alley in the parking lot west of the warehouse. The license tag number of the car seen by Neil Schmidt going down the alley belonged to Tom Zimmerman. Jim Mall then examined the beer delivery truck and found one of the bay doors open on the side of the truck facing the street. That particular bay compartment contained Black Label brand beer. It was determined three cases of Black Label beer were missing. Neil Schmidt and Jim Mall testified that when the delivery truck was loaded each day the bay compartments on the side of the truck facing the warehouse were loaded first, and then those bay doors were closed and the truck turned around for the other side to be loaded. The bay doors are an overhead type door located on each side of the truck and are part of the truck itself. On the day of the alleged burglary, Neil Schmidt had loaded the side of the truck where the Black Label beer was contained and turned the truck around. He testified he was certain all the bay doors on both sides of the truck were closed that particular day, but not locked. On cross-examination he testified he was positive the bay doors were closed because it was routine procedure for the doors to be closed before turning the truck around so the side facing the street would always have the doors closed on it, and because he had to walk by the bays to turn the truck around and would have noticed if a door had been left open. He also testified there were times when both employees were in the warehouse and no one was watching the truck, and times when beer was left in the doorway of the warehouse for a few minutes. Shortly after the police were notified of the alleged burglary defendants Zimmerman and Schmidt were .located in Zimmerman’s car. A search of the car produced three cases of Black Label brand beer. Jim Mall testified the beer recovered by police was similar to that taken from the truck. A complaint was filed charging defendant Schmidt with burglary of a motor vehicle in count one and with theft in count two (K.S.A. 21-3701). Defendant Zimmerman was charged with aiding and abetting on both counts. At the close of the State’s evidence the defendants moved that the felony burglary charge be dismissed. The defendants argued that the testimony by Neil Schmidt that he was positive the bay doors on the truck were closed because it was his habit to close them, and the fact that one door was found open, was insufficient to show the element of entry. Further, there was no evidence Mark Schmidt had been seen near the truck. Sustaining the defendant’s motion, the court ruled that the element of entry was missing. The court directed, however, that trial be set for the theft charge. At the outset the appellees challenge the State’s right to pursue this appeal under the provisions of K.S.A. 22-3602(&). The right to appeal is jurisdictional and therefore must be considered. K.S.A. 22-3602(b) provides in part: “Appeals to the supreme court may be taken by the prosecution from cases before a district judge or associate district judge as a matter of right in the following cases, and no others: “(1) From an order dismissing a complaint, information or indictment.” The right to appeal is statutory only, and appeals by the prosecution as a matter of right after a final judgment are allowed only in the three situations set forth in K.S.A. 22-3602(b) and no others. State v. Crozier, 225 Kan. 120, 122, 587 P.2d 331 (1978). Directing the court’s attention to the rule that the prosecution may refile a complaint after the discharge of a defendant resulting from a preliminary hearing, the appellees contend the State should not be authorized to elect between the two remedies available to it of either refiling the complaint and proceeding to a new preliminary examination or appealing the dismissal of the complaint. The appellees point out that a defendant has no right to appeal from a pretrial order denying his motion to quash an indictment or information filed against him, and suggest it is therefore unfair to allow the State to appeal from an order dismissing a complaint where the right to refile the complaint exists. In support of this proposition the appellees rely on State v. McCombs, 164 Kan. 334, 188 P.2d 922 (1948), which held the State had no right of appeal from an order of an examining magistrate dismissing a person charged with a crime following a preliminary examination. This case was decided under statutes applicable prior to our new code of criminal procedure and has no application under the present code. Under our present code of criminal procedure the term “magistrate” has been defined to include only appellate court judges and judges of the district courts. K.S.A. 22-2202(12). Every person arrested on a warrant charging a felony is entitled to a preliminary hearing before a magistrate under K.S.A. 22-2902, unless such warrant has been issued as a result of an indictment by a grand jury. Where a magistrate does not find probable cause to bind a defendant over for trial the defendant is to be discharged. Appeals by the prosecution as a matter of right are afforded by K.S.A. 22-3602(b) from any order of a district judge or associate district judge dismissing a complaint, information or indictment. In the present case the burglary count in the complaint was dismissed by an associate district judge of the district court of Ellis County. It has long been held the State may appeal from an order quashing or setting aside one count of an information, although another count charging a different act is held sufficient or is not attacked. See State v. Levine, 125 Kan. 360, 362, 264 Pac. 38 (1928); State v. Lumber Co., 83 Kan. 399, Syl. ¶ 1, 111 Pac. 484 (1910). This appeal from the order of the district court dismissing the burglary count in the complaint is expressly authorized by statute as a matter of right. The possibility that the State may choose not to appeal the district court’s order and instead refile the complaint should additional witnesses or new evidence be procured does not alter the right to appeal clearly authorized by the statute. It neither contemplates nor requires, as the appellees contend, that an appeal may only be perfected where a complaint, dismissed during pretrial procedures, cannot be refiled. We are mindful of the rule of statutory construction that penal statutes must be strictly construed in favor of the persons sought to -be subjected to their operations, which simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. National Cooperative Refinery Ass’n v. Board of McPherson County Comm’rs, 228 Kan. 595, 597, 618 P.2d 1176 (1980). The rule does not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language. State v. Howard, 221 Kan. 51, 54, 557 P.2d 1280 (1976). Criminal defendants are not given the right to appeal intermediate pretrial orders. This avoids piecemeal prosecution of the crimes charged and also prevents unnecessary delay in the judicial process. A defendant has the right to appeal such intermediate orders after a final judgment has been entered against him. See State v. Wallace, 172 Kan. 734, Syl. ¶ 2, 243 P.2d 216 (1952); K.S.A. 22-3602(c). The dismissal of a complaint in a criminal prosecution is a final order and precludes further prosecution of the defendant unless the State should overcome the reasons for the prior dismissal at a subsequent preliminary examination on a refiled complaint. To require the State to refile a dismissed complaint before taking an appeal from the order of dismissal, where there is little or no likelihood of achieving a different result on the refiled complaint, would not only be contrary to the clear direction of K.S.A. 22-3602(h), but would serve only to further crowd district court dockets and unnecessarily burden the State’s resources. The appellees’ challenge to the jurisdiction of this court to hear the State’s appeal in this case has no merit. The key issue presented on appeal is whether the trial court erred in ruling that an entry, as a required element of burglary under K.S.A. 21-3715, was not shown by the evidence set forth above. K.S.A. 21-3715 provides: “Burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.” The State contends the action of opening the bay door of the truck and reaching in the bay compartment to remove the cases of beer constitutes an entry within the purview of K.S.A. 21-3715. The statute does not define “entering into,” nor does it indicate what part of a vehicle must be entered to constitute a burglary. This court has been called upon in numerous cases to determine whether sufficient entry has been shown by the evidence to support a conviction of burglary. In a case similar to the one at hand, it was held there was sufficient evidence of entry where the defendant stuck his arm through a slit in the roof of a convertible, ostensibly to remove a purse lying in plain view on the seat. State v. Ervin, 223 Kan. 201, 202, 573 P.2d 600 (1977). In so holding the court relied on the definition of entry from Black’s Law Dictionary at p. 627 (4th ed. rev. 1968), where the rule is stated: “In cases of burglary, the least entry with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, is sufficient to complete the offense.” Other cases in this jurisdiction have considered what constitutes a sufficient entry into a dwelling place. In State v. Gatewood, 169 Kan. 679, 683, 221 P.2d 392 (1950), the court held the elements of breaking and entering were shown where the defendant opened an outer screen door and partially entered his hand and arm in an unsuccessful attempt to unlock the inside door with a key. The court quoted from 9 Am. Jur., Burglary § 16: “Literally, entry is the act of going into the place after a breach has been affected, but the word has a broader significance in the law of burglary, for it is not confined to the intrusion of the whole body, but may consist of the insertion of any part for the purpose of committing a felony. An entry is accomplished by putting through the place broken the hand, the foot, or any instrument with which it is intended to commit a felony.” See also 13 Am. Jur. 2d, Burglary § 10; 12A C.J.S., Burglary § 22a. Recently we held the removal of a storm window from a house without actually raising or disturbing the inside window was sufficient evidence of entry to support a conviction of aggravated burglary in State v. Crease, 230 Kan. 541, 542, 638 P.2d 939 (1982). Like Kansas, many other jurisdictions have enlarged the crime of burglary by providing that motor vehicles may be the subject of the crime. Consequently, what constitutes the breaking and entering of a motor vehicle under the facts of a particular case has been litigated on several occasions. See Annot., Burglary or breaking and entering of motor vehicle, 79 A.L.R.2d 286, and Later Case Service. In Houchin v. State, 473 P.2d 925, 927 (Okla. Crim. 1970), a box containing a television set was removed from the trunk of a car where the trunk lid had been fastened over the box with a nylon cord. The court held theré was an entry where the cord had been severed and it was apparent the defendant had to place his hands inside the trunk in order to remove the box. In State v. Pierre, 320 So. 2d 185, 188 (La. 1975), the court held there was sufficient entry into a vehicle to support a burglary conviction where the hood of the vehicle was opened and the battery stolen from the engine compartment. The court in Bragg v. State, 371 So. 2d 1082, 1083 (Fla. Dist. Ct. App. 1979), rejected the defendant’s contention that the Florida statute defining burglary as the “entering or remaining in a structure or a conveyance with the intent to commit an offense therein,” required the entry to be into the passenger compartment of the vehicle. Another statute defined “to enter a conveyance” as including the “taking apart any portion of the conveyance.” The court held the burglary statute did not distinguish between the engine compartment, passenger compartment, or the trunk in prohibiting the unauthorized entry of a motor vehicle. However, the removal of hubcaps from a vehicle was not found to constitute a burglary in State v. Hankins, 376 So. 2d 285, (Fla. Dist. Ct. App. 1979), as there was no evidence the defendant intended to commit an offense within the vehicle, as required by statute. Similarly, in Smith v. District Court, 75 Nev. 526, 347 P.2d 526 (1959), it was held that to hold one’s hand over the unenclosed platform body of a truck did not constitute a sufficient entry into a motor vehicle to support a charge of burglary. In the present case, Neil Schmidt testified the bay door cov ering the compartment containing the brand of beer stolen had been closed after the compartment was loaded. Both employees testified that the bay doors on the side of the truck facing the street were closed at all times. When it was suspected that some beer had been taken, the bay door in question on the street side of the truck was found open and three cases of beer were determined to be missing. Obviously, the perpetrator of the crime had to reach a hand or arm into the bay compartment in order to remove the beer from the truck. As noted in State v. Nesmith, 220 Kan. 146, 150, 551 P.2d 896 (1976), entry, like any element of a crime, can be proven by circumstantial evidence. It is the duty of a magistrate conducting a preliminary hearing to determine only whether from the evidence a crime has been committed and whether there is probable cause to believe the accused committed it. K.S.A. 22-2902(3); State v. Ramsey, 228 Kan. 127, 131-32, 612 P.2d 603 (1980). It is a well-established principle of law that it is the prerogative of the jury to determine the credibility of the witnesses, the weight to be. given the evidence, and to draw all reasonable inferences from the evidence. State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980). Where the evidence tends to disclose that the offense charged was committed and the defendant committed it, the question is one for the jury to decide, even though the evidence is weak. State v. Townsend, 201 Kan. 122, Syl. ¶ 3, 439 P.2d 70 (1968). We conclude that sufficient evidence was presented from which a jury could find there was an entry into the truck to support a conviction under K.S.A. 21-3715. The trial court therefore erred in ruling that no entry had been shown by the evidence and dismissing the complaint against the appellees. The decision of the lower court is reversed and the case is remanded.
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The opinion of the court was delivered by Holmes, J.: This is an appeal by defendants Glen Kircher and Julius Johnmeyer, in an action brought against them and others for damages under the Kansas securities law, K.S.A. 17-1252 et seq. Kircher and Johnmeyer appeal from an order denying their motion to dismiss for lack of jurisdiction and from an order of summary judgment granted in favor of plaintiffs. The court awarded a money judgment for $38,426.00 and costs against the appellants, jointly and severally, pursuant to K.S.A. 17-1268(a). Appellants raise two questions on appeal: (1) Has subject matter jurisdiction been preempted by federal law in favor of a federal agency, and (2) are these individual defendants subject to in personam jurisdiction in the Kansas courts under K.S.A. 1982 Supp. 60-308(b)? Defendants’ motions to dismiss for lack of jurisdiction were overruled at the same time that plaintiffs’ motions for summary judgment were sustained. The plaintiffs are Kansas residents. Kircher and Johnmeyer are residents of Missouri. At all times material to the instant lawsuit, Kircher and Johnmeyer were directors of Mo-Comm Futures, Inc., a Missouri corporation. Mo-Comm Futures, Inc. was originally organized for the purpose of trading in commodity futures for its own account. Sometime in 1975, following a change in management, the corporation changed its business to that of a “commodity trading advisor.” The corporation would no longer trade in commodity futures for its own account but would manage and direct the investments of others in return for a fee for its services. To accomplish this goal, Mo-Comm Futures, Ltd., a Missouri limited partnership, was created. The corporation was the general partner in the limited partnership. Limited partnership shares were sold to investors for the purpose of generating an investment pool for trading in the futures market. The plaintiffs purchased from a salesman of the corporation some of the shares available in the limited partnership. The purchases were made in Kansas and plaintiffs invested $20,000.00 for 2,000 units of the limited partnership. It is contended they purchased their interests based upon a preorganization subscription agreement which detailed the investment plan and provided information about the commodity futures business. The agreement also contained brief biographical data on Kircher and Johnmeyer as directors of the corporate general partner. The district court, in ruling on plaintiffs’ motion for summary judgment, concluded that the limited partnership interests sold to plaintiffs were securities as defined in K.S.A. 17-1252(J) and, as they had not been registered, their sale in Kansas was in violation of K.S.A. 17-1255. That aspect of the trial court’s ruling has not been appealed. At the time of the sale of the limited partnership interests to the plaintiffs in 1976, the corporation operated from an office in the Board of Trade Building in Kansas City, Missouri. In 1978, the instant lawsuit was filed. Shortly thereafter operation of the corporation and the limited partnership was enjoined by a consent order of the federal Commodity Futures Trading Commission (CFTC). The corporate offices in Missouri were closed and any further activities of the corporation were handled by its chief executive officer from his home in Johnson County, Kansas. Kircher and Johnmeyer were still listed as directors when the Missouri offices were closed and further operations transferred to Johnson County. We turn first to the question of subject matter jurisdiction and whether it has been preempted by the Commodity Exchange Act, 7 U.S.C. § 1 etseq. It is the contention of appellants that the federal act has vested exclusive jurisdiction over commodity futures transactions in the CFTC. 7 U.S.C. § 2 (Supp. V, 1981) provides in pertinent part: “Provided., That the Commission [Commodity Futures Trading Commission] shall have exclusive jurisdiction xoith respect to accounts, agreexnents (including any transaction which is of the character of, or is commonly known to the trade as, an ‘option’, ‘privilege’, ‘indemnity’, ‘bid’, ‘offer’, ‘put’, ‘call’, ‘advance guaranty’, or ‘decline guaranty’), and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market designated pursuant to section 7 of this title or any board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to section 23 of this title: And provided further, That, except as hereinabove provided, nothing contained in this section shall (i) supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commission or other regulatory authorities under the laws of the United States or of any State, or (ii) restrict the Securities and Exchange Commission and such other authorities from carrying out their duties and responsibilities in accordance with such laws. Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State.” (Emphasis added.) It should be noted that the provision giving the CFTC exclusive jurisdiction is limited to the accounts, agreements and transactions described in the first proviso and under the sécond proviso only applies to other regulatory authorities. The last sentence makes it clear that the exclusive jurisdiction of the CFTC is only operative in the enumerated circumstances and does not apply to private actions in state court. In Singer v. Clayton Brokerage Co. Etc., 620 S.W.2d 720 (Tex. Civ. App. 1981), this issue was addressed by the court. Plaintiffs brought an action to recover from a commodities broker for misrepresentation and deceptive trade practices in connection with the sale of futures contracts to plaintiff. The trial court found the CFTC had exclusive jurisdiction or at least primary jurisdiction. The decision was reversed by the Court of Civil Appeals of Texas. In Singer the court stated: “We construe the language of the statute, viewed in the light of the conference report, as providing for exclusive federal regulation of the field of futures trading, but notas preempting the jurisdiction of the state courts to adjudicate claims. We note that although the CFTC’s jurisdiction, where applicable, supersedes state and federal agency jurisdiction, federal and state courts retain their respective jurisdictions. We hold that the jurisdiction of the CFTC is not exclusive of the jurisdiction of the state courts. “In the light of the express language of the Act providing for state court retention of jurisdiction, however, we believe adjudication of private damage claims in state court is not such regulation as to come within the CFTC’s exclusive jurisdiction to regulate.” p. 723. The trial court found that the purchase by the plaintiffs of the limited partnership interests did not involve “contracts of sale of a commodity for future delivery, traded or executed on a contract market described in the Commodity Futures Trading Commission Act of 1974” and for that reason the jurisdiction had not been preempted in favor of the CFTC. The reasoning of the trial court was based upon a line of cases which hold that the capital-raising function, prior to actual trading in the commodity futures market, is not a transaction that falls within the exclusive jurisdiction of the CFTC. Black v. Corporation Division, 54 Or. App. 432, 634 P.2d 1383 (1981), involved the sale of unregistered securities as in our case. The state’s corporation commissioner had issued Black an order to cease and desist offering unregistered securities and Black appealed saying that the commissioner’s jurisdiction was preempted by federal law because the transactions at issue involved commodity futures. The court held that the investment scheme involved the capital formation stage of raising money for a commodity pool and was not a transaction on the commodity futures market which would fall within exclusive CFTC jurisdiction. The court would not construe the exclusive jurisdiction clause in the federal act to extend to the fund-raising transactions which in the future would result in investing in commodity futures contracts. CFTC exclusive jurisdiction was not intended to extend to the capital-raising activities which precede transactions involving commodity futures. When the capital-raising activity involves traditional forms of securities it is subject to securities regulation. Black was a case involving a state regulatory authority and not a private action for damages. The trial court was not in error in finding that it had subject matter jurisdiction and that the CFTC exclusive jurisdiction provisions of 7 U.S.C. § 2 did not apply to this case. The question of personal jurisdiction of Kircher and Johnmeyer under the long arm provisions of K.S.A. 1982 Supp. 60-308(b) is more difficult. The pertinent provisions of the statute read: “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: “(1) transaction of any business within the state; “(2) commission of a tortious act within this state; “(6) acting within this state as director, manager, trustee or. other officer of any corporation organized under the laws of or having a place of business within this state . . . .” In Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968), this court indicated the statute should be liberally construed. We said that the long arm statute “[R]eflects a conscientious state policy to assert jurisdiction over nonresident defendants to the extent permitted by the due process clause of the Fourteenth Amendment to the Constitution of the United States.” p. 602. See also Davis v. Grace, 4 Kan. App. 2d 704, 709, 610 P.2d 1140 (1980), and cases cited therein. In addressing the question of personal jurisdiction the court is faced with a necessary two-step analysis. It must first be determined whether our legislature has provided jurisdiction by statute. If so, then it must be determined whether the exercise of the jurisdiction authorized under the facts of the particular case comports with the constitutional guarantee of due process of law. 4 Kan. App. 2d at 707-708. As this matter is before us on an appeal from a motion granting summary judgment, it is obvious there has been no trial on the merits. However, extensive discovery, including the depositions of both appellants and Gordon D. MacDonald, was completed in the trial court and is included in the record before this court. The trial court in finding that Kircher and Johnmeyer were subject to in personam jurisdiction under the statute made, inter alia, the following findings: “21. Directors, Johnmeyer and Kircher, had not resigned as directors at the time Mo-Comm had a ‘place of business’ in Johnson County. “22. Defendants, Kircher and Johnmeyer, acted as directors of the corporation having a place of business within the state of Kansas. “23. The preorganization subscription agreement of Mo-Comm Futures, Ltd. (MacDonald deposition exhibit #2) contained the publication of biographical information of the defendants Kircher and Johnmeyer and said biographical information was published with the knowledge of those defendants. “25. The Kansas long-arm statute authorizes service on a nonresident who serves as an officer or director of a corporation that either has a place of business in Kansas or is organized under Kansas law. J.E.M. Corp. v. McClellan, 462 F. Supp. 1246, 1251 (D. Kan. 1978).” Thus it is obvious that the trial court in construing K.S.A. 1982 Supp. 60-308(b)(6) was of the opinion that merely serving as a director of a corporation having a place of business in Kansas is sufficient to subject that director to jurisdiction in Kansas. The preorganization subscription agreement mentioned in finding 23 and used in the solicitation and sale of units in the limited partnership set forth the role of Mo-Comm Futures, Inc. as the general partner and exclusive manager of the partnership. In describing the management of the corporation, the subscription agreement stated: “A. Information Concerning Directors and Officers Gordon D. MacDonald (age 31) graduated from Notre Dame University in 1970 and was employed as a computer systems analyst at a major Chicago bank and an insurance company until January 1974. From January 1974 to October 12, 1975, Mr. MacDonald was Vice President and a Director of Investment Managers Commodity Corporation of Chicago, Illinois, a management company for public and private commodity accounts. Mr. MacDonald has been registered commodity solicitor for Shatkin Trading Company since January 1974. Glenn Kircher (age 68) has been a dairyman and farmer since 1927. He is a director of the Mid-American Dairy Association and President of the Harrisonville Milk Association. Julius Johnmeyer (age 60) has been a farmer in Howard County Missouri since 1936. He is the President and majority stockholder and founder of Johnmeyer Construction Company, Fayette, Missouri.” Both Kircher and Johnmeyer testified by deposition that they were not actively engaged in any of the management decisions of the' corporation. Although they had served as directors since 1975, they did not attend any directors’ meetings. Mr. Kircher did have contact with MacDonald on two or three occasions but no formal business was discussed with him. Kircher and Johnmeyer were not acquainted with each other and did not meet until December, 1977, when they arranged to get together in Kansas City to see if they could get some information about Mo-Comm Futures, Inc. They were becoming concerned about the lack of information and MacDonald’s handling of the corporate affairs. Both defendants had prior experience in trading commodity futures and both were stockholders in the corporation. Mr. Kircher also served as a director of Kansas Commodity Traders, Inc., a Kansas corporation which also was run by MacDonald and his predecessors in office. MacDonald did not take over the management of Mo-Comm Futures, Inc., Kansas Commodity Traders, Inc., and several other business entities until 1975. Both Kircher and Johnmeyer had been named directors prior to that time and both were aware of the change in management and the decision for the corporation to change from a commodity futures investor to a manager and advisor of the limited partnership although they didn’t understand the change. Neither director was aware that the limited partnership interests were being sold in Kansas. As long as they were receiving periodic dividends and some routine information in the form of computer printouts on a fairly regular basis, neither took any steps to participate in the affairs of the corporation or to fulfill their duties as directors. MacDonald testified he took over the management of Mo-Comm Futures, Inc. in 1975. He was the sole operating officer and handled all the affairs of the corporation. He did not convene any meetings of the board of directors and neither Kircher nor Johnmeyer had anything to do with the management of the corporation. Likewise, they had no knowledge of the sale of limited partnership interests in Kansas. MacDonald had no contact with Johnmeyer and had only talked with Kircher infrequently and then not about corporate affairs. Thus it is the argument of the appellants that as they were totally uninformed about the management and practices of the corporation in soliciting the sale of units in the limited partnership neither could have been “acting within this state” as a director. They also point out that at the time of the sale to plaintiffs, Mo-Comm Futures, Inc. was neither organized under the laws of Kansas nor did it have a place of business within Kansas. The trial court’s reliance on J.E.M. Corp. v. McClellan, 462 F. Supp. 1246 (D. Kan. 1978), in its finding 25 was misplaced. In J.E.M. Corp. the United States District Court for the District of Kansas considered the question of long arm in personam jurisdiction under K.S.A. 1982 Supp. 60-308(h)(2). The court in attempting to illustrate the liberal and expanded application of the statute stated: “A federal court also held that the long arm statute did not authorize service on a corporate officer or director whose only contact with the state was in his corporate capacity. Wilshire Oil Co. v. Riffe, 409 F.2d 1277 (10th Cir. 1969). The Kansas legislature responded with a new provision that authorizes service on any nonresident who serves as an officer or director of a corporation that either has a ‘place of business’ in Kansas or is organized under Kansas law. K.S.A. § 60-308(b)(6).” p. 1251. The court’s statement was pure dicta and had nothing to do with the issue before the court which concerned jurisdiction based upon a fraudulent misrepresentation without the state that resulted in tortious injury within Kansas and whether such an act constituted a tortious act within this state under K.S.A. 1982 Supp. 60-308(h)(2). The court in J.E.M. Corp., and the trial court in this case, interpreted 60-308(b)(6) as if it read “[serving] as a director, manager, trustee, or other officer of any corporation, etc.” Such a reading of the statute greatly expands the scope of the actual language which requires the director, manager, trustee or other officer to have been “acting within this state.” If the legislature had intended that mere membership on the board of directors was sufficient to subject a corporate director to jurisdiction it could easily have said so. We agree with defendants that K.S.A. 1982 Supp. 60-308(h)(6) does not confer in personam jurisdiction on them. The statutory phrase “acting within this state” requires something more than a failure to act on the part of a nonresident director. There is no showing that either Kircher or Johnmeyer acted in any way within the State of Kansas. However, such a determination does not dispose of the issue before us. K.S.A. 60~308(h)(l) and (2) provide for long arm jurisdiction over any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality transacts business or commits a tortious act within the state which gives rise to the cause of action. While these sections of the statutes have not been addressed by the appellants on appeal, we deem it necessary to consider their application to the facts in this case. Appellees contend that the findings of the trial court, while not specific in finding jurisdiction under 60-308(fc)(l), indicate such a determination by the trial court. The sale of unregistered securities in violation of the statutes would also be a tortious act under 60-308(£>)(2), As we have said many times, a trial court’s decision if correct will be affirmed even if it was originally based upon an incorrect reason. Farmers State Bank v. Cooper, 227 Kan. 547, Syl, ¶ 10, 608 P.2d 929 (1980). If there is in personam jurisdiction under any of the provisions of K.S.A. 1982 Supp. 60-308(fe), then the trial court’s decision must be affirmed. There is no doubt that Mo-Comm Futures, Inc. was transacting business in Kansas when it sent its salesmen into Kansas to sell interests in the limited partnership. It is contended those sales were solicited, at least in part, by the use of the preorganization subscription agreement which contained information about defendants in their capacity as directors of the corporation. Mo-Comm Futures, Inc. was an instrumentality doing business in Kansas through its salesmen and agents. Does it follow that defendants, as name-only, nonparticipating directors, have transacted business within the State of Kansas or commited a tortious act within the state? We think not. Appellees contend that the defendants submitted themselves to Kansas jurisdiction when they allowed their names and biographical data to be included in the preorganization subscription agreement, thereby aiding the advertising used to sell securities in Kansas. The record does not include any testimony of the plaintiffs or any indication that they relied upon the defendants’ biographies in any way in making the determination to invest in Mo-Comm Futures, Ltd. To the contrary, the affidavits of other investors which are included in the record indicate that they did not receive the preorganization subscription agreement until after their investment was already made. Assuming that the publication of the-biographies of Kircher and Johnmeyer- might have had some bearing upon the plaintiffs’ actions, we cannot isolate one small portion of the preorganization subscription agreement. The agreement on its first page, in large type, states: “THESE SECURITIES ARE SPECULATIVE IN NATURE AND INVOLVE A HIGH DEGREE OF RISK.” In addition, in setting forth the numerous risk factors involved, the agreement states: “Experience of Management. Although Mr. MacDonald, President of the General Partner, has had several years’ experience in managing commodity futures contracts, none of the other officers or directors of the General Partner have had any experience, and thus the Partnership will have to rely heavily on professional management.” Appellees further contend that because the defendants may, on occasion, have been involved in other business activities in Kansas that those activities, although not connected in any way with the sale of interests in Mo-Comm Futures, Ltd., would constitute doing business in Kansas and subject defendants to Kansas jurisdiction in this action. Such a reading of the statute is patently erroneous. Land Manufacturing, Inc. v. Highland Park State Bank, 205 Kan. 526, Syl. ¶ 1, 470 P.2d 782 (1970); White v. Goldthwaite, 204 Kan. 83, Syl. ¶ 3, 460 P.2d 578 (1969). The statute specifically requires that the transaction of business or the commission of a tortious act must be in connection with the cause of action in question. In other words, the activities of Kircher and Johnmeyer must have been in connection with the sale of the limited partnership interests to the plaintiffs. The facts that Johnmeyer may have taken construction jobs in Kansas in connection with his construction business or that both defendants had other investments in Kansas have no bearing upon the question of whether the defendants were transacting business in Kansas when the corporation, through its salesman, sold the securities to plaintiffs. In White v. Goldthwaite, the court had before it the question of whether the defendant, an Oklahoma resident who was allegedly indebted to the plaintiff, was subject to long arm jurisdiction for having transacted business in Kansas. The court stated: “In Tilley [Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968)] pertinent federal decisions were reviewed to ascertain guidelines for due process limitations. They were found to include: Certain minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice (Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.ed. 95, 66 S.Ct. 154, 161 ALR 1057); the interest of the forum in protecting its citizens, and itself, in the area of the subject matter which is the basis of the claim for relief (Travelers Health Assn. v. Virginia, 339 U.S. 643, 94 L.ed. 1154, 70 S.Ct. 927); the quantity and quality of defendant’s contacts within the forum state (Perkins v. Benguet Mining Co., 342 U.S. 437, 96 L.ed. 485, 72 S.Ct. 413); a substantial connection with the state justifying in personam jurisdiction (McGee v. International Life Ins. Co., 355 U.S. 220, 2 L.ed.2d 223, 78 S.Ct. 199); and some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws (Hanson v. Denckla, 357 U.S. 235, 2 L.ed.2d 1283, 78 S.Ct. 1228). (pp. 644, 645).” pp. 87-88. The court also repeated the well-known rule that: “The party invoking the jurisdiction of a particular forum has the burden of proving existence of that jurisdiction.” Syl. ¶ 4. Thus the question of jurisdiction not only involves the statutory requirements but also the due process requirements and whether the exercise of jurisdiction comports with the “traditional notions of fair play and substantial justice.” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 62 L.Ed.2d 490, 100 S.Ct. 559 (1980); Internat. Shoe Co. v. Washington, 326 U.S. 310, 319, 90 L.Ed. 95, 66 S.Ct. 154 (1945). While defendants were lax in not assuming their duties as directors and in allowing their appointment and continuation as directors when they obviously had no control or say in the management of the corporation, we cannot say that such nonfeasence constitutes the doing of business or commission of a tortious act in Kansas. As was said in Professional Investors Life Ins. Co. v. Roussel, 445 F. Supp. 687 (D. Kan. 1978): “Jurisdiction over individual officers and employees of a corporation may not be predicated merely upon jurisdiction over the corporation itself.” p. 698. The seminal case in the United States Supreme Court, establishing the rule that before a nonresident corporation or individual may be subjected to in personam jurisdiction the party sought to be held liable must have had certain “minimum contacts” with the forum state, is Internat. Shoe Co. v. Washington, 326 U.S. 310. In that case the court in referring to the due process requirements under the Fourteenth Amendment stated: “Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.” 326 U.S. at 319. In the more recent case of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, the court again recognized the rule that certain minimum contacts with the foreign state are required before the state can exercise in personam jurisdiction over a nonresident corporation or individual. The court stated: “Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. Hanson v. Denckla, supra, at 251, 254 [357 U.S. 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228].” p. 294. In White v. Goldthwaite, this court recognized the due process requirement of not only committing such acts as would bring a nonresident under the statute but also the need to meet federal constitutional due process requirements. The court held: “In order to subject a defendant to a judgment in personam if he be not present within the territory of the forum state, he must have the minimum contacts enumerated in the statute, and whether due process is satisfied depends upon the quality and nature of the activities of the defendant, which must be determined on a case by case basis. (Following Woodring v. Hall, 200 Kan. 597, 438 P.2d 135.)” 204 Kan. 83, Syl. ¶ 2. “Three basic factors must coincide if jurisdiction is to be entertained over a nonresident on the basis of transaction of business within the state. These are (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.” 204 Kan. 83, Syl. ¶ 3. As stated in White, the determination of whether the facts in a given case are sufficient to meet the statutory and constitutional requirements must be made upon a case by case basis. In Odam v. Arthur Murray, Inc., 5 Kan. App. 2d 612, 621 P.2d 453 (1981), the court said: “It has been noted that essentially the same factors which enter into a determination that K.S.A. 60-308(b) authorizes the exercise of judicial jurisdiction are involved in deciding whether the exercise of jurisdiction is constitutionally valid. Woodring v. Hall, 200 Kan. 597, 603, 438 P.2d 135 (1968); Rosedale State Bank & Trust Co. v. Stringer, 2 Kan. App. 2d 331, 332, 579 P.2d 158 (1978).” p. 615. While actual physical presence of the defendant within the state is not required, all the cases we have examined, state or federal, require some actual contact or action by the nonresident with the forum state. As we have already shown, Kircher and Johnmeyer had no contact with Kansas whatsoever in connection with the activities of Mo-Comm Futures, Inc., in selling the limited partnership interests in Kansas. While their total failure to assume any of the duties of a director of Mo-Comm Futures, Inc., may constitute a breach of their fiduciary duty to the corporation and its stockholders (Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 [1978]), such nonfeasance in office cannot be the basis of subjecting them to in personam jurisdiction in Kansas solely because the corporation transacted business or committed tortious acts in Kansas. Appellees contend that liability of Kircher and Johnmeyer is established by K.S.A. 1982 Supp. 17-1268(h), which provides: “(b) Every person who directly or indirectly controls a seller liable under subsection (a), every partner, officer, or director (or person occupying a similar status or performing similar functions) or employee of such a seller who materially aids in the sale, and every broker-dealer or agent who materially aids in the sale is also liable jointly and severally with and to the same extent as the seller, unless the nonseller who is so liable sustains the burden of proof that such nonseller did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.” It is true that the statute establishes the basis for liability of persons involved in the sale of unregistered securities but it does not establish the jurisdiction of the court to submit such persons to liability. In the present case the court must first have in personam jurisdiction of Kircher and Johnmeyer before the statutory liability may be applied. Jurisdiction depends upon K.S.A. 1982 Supp. 60-308(b) and the constitutional guarantees of due process as previously discussed. There has been no showing of any act, action, or activity by either defendant in connection with the sale of the limited partnership interests to plaintiffs which would bring them within the long arm jurisdiction of K.S.A. 1982 Supp. 60-308(b) or which would meet the minimum contacts necessary to satisfy federal constitutional due process requirements. As neither Kircher nor Johnmeyer acted within this state as a director, transacted business in Kansas, or committed a tortious act in Kansas, the trial court lacked personal jurisdiction over them and the judgment entered against these individual appellants is void. Their motion to dismiss for lack of jurisdiction should have been sustained. The judgment is reversed. Schroeder, C.J., dissenting. Lockett, J., concurs in the result.
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The opinion of the court was delivered by Herd, J.: This is an action in which an unwed father seeks an adjudication of paternity and enforcement of his right to visit his child. Kimberly Martin appeals from the trial court’s order adjudicating Vendal Carty the father of her son, Adam Martin, granting Carty visitation rights and ordering him to pay $40 per month child support. Vendal Carty and Kimberly Martin met in January of 1976. Carty was in the army stationed at Ft. Leavenworth. Ms. Martin was a student at Kansas University. He was age 29 and had been previously married with one child. She was age 17 and had never been married. The two became friends, then lovers, and during the fall of 1976 Ms. Martin became pregnant. When Ms. Martin discovered her pregnancy, she planned to drop out of college at the end of the semester and marry Carty. Her plans failed to materialize due to what she claims was Carty’s reluctance. Carty contends it was the other way around. Nevertheless, Adam Martin was born out of wedlock in April of 1977. Carty refused to sign the birth certificate even though he acknowledged paternity. The medical expenses of the birth were paid by Ms. Martin’s father’s military benefits. After the birth of Adam the parties continued to see each other irregularly. Carty, however, never paid child support. In June of 1978, Carty informed Ms. Martin he was going to marry another woman whom he had also gotten pregnant. The marriage occurred in July of 1978. In November of 1979, Mr. Carty was transferred to Texas where he was stationed for a few months. He returned to Kansas temporarily in February of 1980. While here he requested permission to see Adam but appellant refused. In May of 1980, Carty returned to Kansas permanently. This time appellant agreed to permit Carty to visit their son on a regular basis.during the summer. Before long the informal visitation arrangements fell through. On September 15, 1980, Mr. Carty filed this suit asking for a judicial determination of his paternity of Adam Martin and an order granting him custody or in the alternative visitation rights to the child. Ms. Martin responded to Carty’s suit by stating she was without sufficient information to answer the paternity averment. She then alleged Carty failed to state a claim upon which relief could be granted and that he was guilty of laches. In the alternative she asked for support. After a trial where the parties acknowledged Carty was the father of Adam Martin, the trial court concluded: “The custody of the child should remain in the mother. The realities of this situation are that the plaintiff is clearly the father of the child, Adam, and has turned to the Courts only when the informal arrangements for visitation began to decay. “The Kansas Legislature has not addressed the rights of a father under these circumstances, but in 1978 the Kansas Supreme Court in a case of first impression found the father of an illegitimate child had the right to reasonable visitation if it is in the best interests of the child. This visitation is not automatic and once granted may be withdrawn if the father uses it for vexatious purposes. The Court noted that while a putative father is no longer without parental rights under the law, there are valid factual differences between the father of an illegitimate child and a divorced father. Some of the factors to be considered regarding the issues of visitation are the duration and nature of the relationship between the father and mother, the interest shown by the .father, the admission of paternity, support paid, and the emotional effect the visits would have on the child.” After an in-depth home study of the effect on the child of permitting visitation, the court granted Carty visitation rights and ordered him to pay $40 per month child support. This appeal followed. Appellant argues the trial court’s order was erroneous because Mr. Carty was without authority to bring' an action to establish paternity. Kansas has traditionally offered only two proceedings in which the paternity of an illegitimate child could be legally determined. The first is a statutory action available only to the mother. It was previously governed by the “bastardy” statute, K.S.A. 62-2301 (Corrick), and had to be brought in the name of the State of Kansas. Although it was a civil action it had features of á criminal prosecution. Effective July 1, 1970, the legislature repealed the bastardy statute and enacted the present statutes governing “paternity proceedings.” K.S.A. 38-1101 et seq. The major changes in the new act were provisions limiting the cause of action to one year after the birth of the child (K.S.A. 38-1104) and the charactérization of the proceedings as civil rather than criminal. See Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974). The second proceeding is a nonstatutory action to determine paternity brought in the name of the child. The action, first recognized by this court in Doughty v. Engler, 112 Kan. 583, 585, 211 Pac. 619 (1923), is a chose vested in the child. Lawrence v. Boyd, 207 Kan. 776, 486 P.2d 1394 (1971). The purpose of the nonstatutory action is to force the putative father to support the child. This action can be initiated on behalf of the child by a guardian or next friend and is not subject to a limitation on time for filing. Huss v. DeMott, 215 Kan. at 455. As appellant correctly notes, there is no statutory or common-law action available to the putative father of an illegitimate child to have paternity adjudicated. Such a restriction on the father was acceptable when bastardy and illegitimacy were considered disgraceful, casting adverse reflections on all the concerned parties. However, the mores and folkways have changed. Illegitimacy is no longer considered a disgrace, with the unwed father often desirous of accepting paternal responsibilities. This change was reflected by the U.S. Supreme Court in Caban v. Mohammed, 441 U.S. 380, 60 L.Ed.2d 297, 99 S.Ct. 1760 (1979); and Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972). In Caban the court recognized a difference in maternal and paternal roles prior to and at birth but found the differences diminish as time passes “where the father has established a substantial relationship with the child and has admitted his paternity.” 441 U.S. at 393. In Stanley the court recognized the rights of an unwed father whose custody of his children was challenged after the mother’s death, holding he was denied due process when he was not given a hearing such as afforded other parents whose custody was challenged. This court has also recently dealt with the rights of unwed fathers. In State ex rel. Wingard v. Sill, 223 Kan. 661, 665, 576 P.2d 620 (1978), citing Stanley v. Illinois, 405 U.S. 645, we held an unwed father who is a fit and proper parent has a right to reasonable visitation after a district court has determined paternity. We further stated “legal responsibility does not arise until paternity is adjudicated.” 223 Kan. at 664. Thus, it is well established in Kansas the father of an illegitimate child is entitled to bring an action to enforce his right to visit that child. In order to enforce this right, however, he must show he is, in fact, the child’s father. Appellant argues that since Kansas has not yet recognized a procedure by which a putative father can bring an action to determine paternity, Mr. Carty’s petition failed to state a claim upon which relief could be granted. Appellant’s argument fails to recognize one salient point. In the instant case the paternity of Adam Martin was long ago acknowledged by both parties. In fact, Carty was for a time accorded visitation privileges. The idea that paternity can be established by acknowledgement of the parties is not a new or novel principal. For example, the legislature has recognized it in K.S.A. 59-501 which states an illegitimate child can inherit from the father “where the father has notoriously or in writing recognized his paternity of the child.” Other courts have also discussed the issue. In Levy v. State, Char. Hosp. of La. At N. Orleans Bd. of Ad., 253 La. 73, 80, 216 So. 2d 818 (1968), the court held, “when a parent openly and publicly recognizes and accepts an illegitimate to be his or her child” the child is considered to be a “child” within the meaning of the Louisiana wrongful death statute. More to the point is Gardner v. Rothman, 370 Mass. 79, 82, 345 N.E.2d 370 (1976), where the court held when paternity is conceded an adjudication of paternity is not essential before visitation rights may be granted to the father of an illegitimate child. Thus, Carty properly invoked the jurisdiction of the district court to determine his lights regarding visitation of his son. Our conclusion is the product of both legal authority, as set out in Stanley and Wingard, and practical considerations, as evidenced by the specific facts of this case. We hold once paternity is established, whether by adjudication or acknowledgement, the unwed father, absent unfitness, and subject to the best interests of the child, has a right to visitation with respect to that child. Further, he is entitled, when necessary, to bring an action without time limitations to enforce this right. The question of whether an unwed father, where paternity is disputed, may bring an action to establish his paternity in the first instance is another matter. Certainly there is a strong argument that without such a remedy he would be unable to enforce his right to visitation. However, since such a determination is more appropriately made in the legislature, and since the facts of this case do not require it, we need not reach this issue. The only remaining question is whether the trial court erred in granting Mr. Carty’s request for visitation and setting a monthly figure for child support. A court should not automatically award a putative father visitation rights but should first consider relevant factors including: (1) the duration and nature of the relationship between the mother and father of the illegitimate child; (2) the interest shown by the father in the child’s life; (3) whether paternity is admitted by the father or judicially established; (4) whether the father has contributed support to the child; and (5) the emotional effect the visits would have on the child. This is not an exhaustive list of considerations. The circumstances of each individual case should be examined in light of all relevant factors. See State ex rel. Wingard v. Sill, 223 Kan. at 665-66. Issues regarding custody and control of children are addressed to the sound discretion of the trial court, as is the determination of child support. Simmons v. Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978); Thompson v. Thompson, 205 Kan. 630, 631, 470 P.2d 787 (1970). The record shows the trial court carefully considered all relevant circumstances before making its order. We find no abuse of discretion. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by Herd, J.: This is a criminal action. Danny Lee Robinson entered pleas of guilty to aggravated robbery (K.S.A. 21-3427) and corruptly influencing a witness (K.S.A. 21-3806). Prior to sentencing Robinson sought to withdraw his pleas of guilty. The trial court denied his motion. This appeal followed. Danny Robinson and an accomplice robbed a Junction City dope house to get money for Danny to pay off a debt. They took both drugs and money. The next day they were picked up by the police. Robinson offered the robbery victims drugs and money if they would not press charges. Robinson was subsequently charged with five counts of aggravated robbery (K.S.A. 21-3427), one count of attempted aggravated robbery (K.S.A. 21-3301), one count of conspiracy to commit aggravated robbery (K.S.A. 21-3302), and one count of corruptly influencing a witness (K.S.A. 21-3806). Pursuant to plea negotiations Robinson pleaded guilty to one count of aggravated robbery and one count of corruptly influencing a*witness. The State agreed to (1) dismiss all remaining counts; (2) recommend the court impose concurrent sentences; and (3) not seek enhancement of the sentence under the habitual criminal act, K.S.A. 1982 Supp. 21-4504. The trial court held a hearing on the plea agreement at which time Robinson was exhaustively questioned regarding his understanding of the agreement and what would happen pursuant to it. He also signed a statement acknowledging that by entering into the plea agreement he was waiving his right to a jury trial. The trial court accepted Robinson’s guilty pleas. A presentence report was ordered and the matter was returned to the trial court for sentencing. At that time Robinson indicated he wished to change his guilty pleas. The trial court set the matter for hearing. At the hearing Robinson testified he felt he was “tricked” into the plea agreement and only entered into it because of the prosecutor’s threat to invoke the habitual criminal act. Nevertheless, the trial court refused to allow withdrawal of the guilty pleas. The sole issue on appeal is whether the habitual criminal act, K.S.A. 1982 Supp. 21-4504, is rendered unconstitutional because its use by the prosecutor is optional. Appellant argues the trial court erred in not allowing him to withdraw his guilty pleas, claiming he pled guilty only because the prosecution threatened him with imposition of the habitual criminal act, K.S.A. 1982 Supp. 21-4504, if he did not. That statute provides, in pertinent part: “If a defendant is convicted of a felony a second time, the punishment for which is confinement in the custody of the secretary of corrections, the trial judge may sentence the defendant as follows, upon motion of the prosecuting attorney.” Appellant argues the prosecution’s threat to impose the habitual criminal act had a chilling effect on his assertion of his right to a jury trial. Moreover, he claims, the only purpose of making the imposition of the act dependent upon a motion of the prosecutor is to encourage guilty pleas and discourage the exercise of constitutional rights, Appellant contends this is “patently unconstitutional.” It should be noted the constitutionality of the habitual criminal act has been challenged many times and each time this court has rejected the attack. See, e.g., State v. Sully, 219 Kan. 222, 547 P.2d 344 (1976) (due process and equal protection); Churchill v. State, 216 Kan. 399, 532 P.2d 1070 (1975); Clinton v. State, 210 Kan. 327, 502 P.2d 852 (1972) (cruel and unusual punishment); Fairbanks v. State, 196 Kan. 650, 413 P.2d 985 (1966) (double jeopardy), See generally State v. Levier, 226 Kan. 461, 467-68, 601 P.2d 1116 (1979). Appellant’s contention here is somewhat different. He argues the statute is unconstitutional because it acts to discourage assertion of a constitutional right. The United States Supreme Court has dealt with this issue in a series of cases. United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968), involved the federal kidnaping act, 18 U.S.C. § 1201(a), which provided for punishment by death “if the verdict of the jury shall so recommend.” Under the statute there was no procedure for imposing the death sentence upon a defendant who waived jury trial or who pleaded guilty. Thus a defendant who asserted his right to jury trial did so at the risk of death. The court struck this portion of the statute, holding: “Whatever might be said of Congress’ objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. [Citations omitted.] The question is not whether the chilling effect is ‘incidental’ rather than intentional; the question is whether that effect is unnecessary and therefore excessive. In this case the answer to that question is clear. The Congress can of course mitigate the severity of capital punishment. The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial.” 390 U.S. at 582. Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970), also involved the federal kidnaping act. The defendant here was faced with the same choice as the defendant in Jackson, and after he learned a codefendant had confessed and would be available to testify against him at a jury trial, pled guilty. The court in Brady, however, held Jackson did not require invalidation of every guilty plea entered under section 1201(a) of the federal kidnaping act. Instead, the court said, the individual circumstances of the case should be examined to determine whether the waiver of the right to jury trial was knowing and intelligent. In other words, the statute might be unconstitutional but the guilty plea could still be allowed. With regard to the fact the defendant’s guilty plea might have been based in part on the possibility of a heavier sentence after jury trial, the court stated: “The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State’s law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State’s responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State’s evidence at trial that he must take the stand or face certain conviction.” 397 U.S. at 750. Thus, a guilty plea, “motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged,” is not necessarily compelled and invalid under the Fifth Amendment. 397 U.S. at 751. In Chaffin v. Stynchcombe, 412 U.S. 17, 36 L.Ed.2d 714, 93 S.Ct. 1977 (1973), the petitioner was convicted of robbery and sentenced by the jury.. He .was later granted a new trial after which the jury imposed a harsher sentence. He argued the possibility of a heavier sentence on reconviction placed an impermissible chilling effect on his right to demand a jury trial on retrial. The court recognized, citing fackson, “if the only objective of a state practice is to discourage the assertion of constitutional rights it is ‘patently unconstitutional.’ ” 412 U.S. at 33, n. 20. Still, the court stated, fackson did not hold the Constitution “forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” 412 U.S. at 30. In light of the fact the criminal process is full of situations requiring the making of difficult judgments the real question is whether “compelling the election impairs to an appreciable extent any of the policies behind the rights involved.” 412 U.S. at 32. Finally, in Bordenkircher v. Hayes, 434 U.S. 357, 54 L.Ed.2d 604, 98 S.Ct. 663, reh. denied 435 U.S. 918 (1978), the defendant was indicted by a grand jury on a charge of uttering a forged instrument. During plea negotiations the prosecutor threatened if the defendant did not plead guilty he would return to the grand jury and seek an indictment under the Kentucky habitual criminal act, then Ky. Rev. Stat. § 431.190 (1973) (repealed 1975), which would subject the defendant to a harsher sentence. The defendant pled not guilty and was subsequently charged and convicted under the habitual criminal act. The defendant challenged the prosecutor’s actions as a violation of due process. The Supreme Court, however, upheld the conviction. Much of the court’s reasoning was based on the nature of the plea bargaining process: “We have recently had occasion to observe: ‘Whatever might be the situation in an ideal World, the fáct is that the güilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.’ . . . “To punish a person because he had done what the law plainly allows him to do is a due process violation of the most basic sort, [citation omitted], and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ [Citations omitted]. But in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer. “Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. [Citation omitted.] Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. [Citation omitted.] Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. [Citations omitted.] “While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ [Citation omitted.] It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest ,at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.” 434 U.S. at 361-64. See also Morrow v. State, 219 Kan. 442, 445-46, 548 P.2d 727 (1976). The foregoing cases readily answer appellant’s claim. The mere fact the Kansas habitual criminal act gives the prosecutor authority to move the trial court to invoke its provisions does not make it “patently unconstitutional.” Indeed, the statute itself has no chilling effect whatsoever on the defendant’s assertion of his constitutional rights. It is only when the prosecutor uses his discretion and threatens to invoke the act that some chilling effect may occur. As the Supreme Court has stated, however, this is merely part of the plea bargaining process. Further, the prosecutor’s discretion regarding whether or not to ask the court to invoke the provisions of the act does not present a problem. The prosecutor’s discretion under the act has previously been upheld in the face of constitutional attack. See State v. Sully, 219 Kan. at 230; State v. Collins, 215 Kan. 789, 528 P.2d 1221 (1974). In fact, this is essentially the same type of discretion the prosecutor employs in deciding whether or not to prosecute and what charges .to file. Bordenkircher v. Hayes, 434 U.S. at 364. Since the act itself does not work a violation of a defendant’s constitutional rights this appeal must fail unless appellant can show that under the circumstances of this case his initial guilty pleas were compelled. An examination of the transcript clearly shows this was not the case. The trial court took special care to insure Mr. Robinson’s pleas were made knowingly and intelligently. There is no ground for reversal. The judgment is affirmed.
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The opinion of the court was delivered by Lockett, J.: This is an appeal from the district court of Wilson County, Kansas, by the defendant Clifton Lashley based upon a conviction under the felony murder rule. Kelsie Robbins was a resident of Bella Vista, Arkansas. Sometime early in February, 1981, he took in as a houseguest Clifton Linwood Lashley. Robbins and Lashley were joined by Marla Longworth, who also lived for a period of time at the Robbins home. Early in June of 1981, Robbins, Longworth and Lashley drove to Fredonia, Kansas, to meet with one Kenneth Berry, a friend of Lashley. Mr. Robbins believed he was to participate in a bank robbery in Kansas with Lashley, Longworth and Berry. The trip to Kansas was for the purpose of planning that robbery. At the first meeting in Fredonia, Kansas, outside the presence of Robbins, Berry and Lashley, in the presence of Longworth, planned to murder Robbins. At this meeting Kenneth Berry supplied Lashley with a .25 caliber automatic, the murder weapon. Shortly after the meeting, Robbins, Lashley and Long-worth returned to Bella Vista, Arkansas. Longworth testified that the next day she, while packing a suitcase, saw Lashley place in that suitcase a sterling silver tray belonging to Robbins. Robbins, Longworth and Lashley then left Bella Vista, Arkansas and drove to Fredonia, Kansas where they met Berry. Berry entered the vehicle and directed Robbins, who was driving, to a wooded area just north of Neodesha, Kansas. All four of the individuals walked a considerable distance through very rough, bushy terrain. Lashley, upon reaching a secluded area, pulled out the gun previously supplied him by Kenneth Berry and attempted to shoot Robbins. The gun jammed. Lashley handed the gun to Berry who corrected the faulty mechanism and returned the gun to Lashley. There is conflicting testimony as to the sequence in which the shots were fired at Robbins. Longworth testified that Lashley fired several shots into Robbins, then handed her the gun. She turned her head and fired one shot into the ground. Berry testified that Lashley fired a single shot and then Longworth emptied the clip at Robbins. Berry robbed the body of its personal effects and the three returned to the automobile belonging to the deceased and left the State of Kansas. After leaving the wooded area in Wilson County, the three drove south towards Oklahoma City. In Oklahoma City, Berry attempted to sell some of the jewelry belonging to the deceased Robbins, one of those items being a 1970 class ring with the initials K. R. Thereafter, the trio left Oklahoma City and proceeded south to Gainsville, Texas, where additional jewelry belonging to the deceased was sold for the sum of $1,200.00 to a Mr. Clyde Bond. At this point Kenneth Berry became apprehensive and at his first opportunity left Lashley and Longworth and returned to Kansas, where he initially told a story of being kidnapped by Lashley and Longworth. Berry, however, eventually came forward with the complete story. After Berry’s departure, Lashley and Longworth proceeded west and eventually ended up in Phoenix, Arizona, using the names of Lonnie and April Sanders. While in Phoenix, Arizona, Lashley pawned a Rlack Hills gold man’s ring which had belonged to Robbins. Lashley was tried to the jury on a charge of premeditated murder or first degree felony murder based upon the theft of property belonging to the deceased Robbins, having a value of more than $100.00. Lashley was convicted by the jury of murder in the first degree under the felony murder rule and now appeals that conviction. Defendant’s preliminary examination was completed December 9, 1981, by a district magistrate judge. The district magistrate judge, after hearing the evidence, stated: “The court, after hearing the evidence, finds that there’s probable cause to believe that the offense of Count II, first degree murder and Count III, felony murder has been committed and that there’s reason to believe that the defendant committed the crimes, and that he be bound over to appear before a district judge, or associate district judge for arraignment, . . . .” December 21, 1981, a Notice of Appeal of the decision of the district magistrate judge binding the defendant over for arraignment was filed. The Notice of Appeal stated no reason or statutory authority for the appeal. A new preliminary examination was set for February 8, 1982, and a second judge assigned to hear the matter. February 8, 1982, Judge Richard L. Ashley ruled that the “binding over” at the preliminary hearing was not a final order and the court had no jurisdiction to hear the appeal and ordered the defendant to appear February 11, 1982, for arraignment. Defendant first attempted to justify an appeal from the district magistrate judge’s ruling under K.S.A. 1982 Supp. 60-2103a, which provides: “(a) In actions commenced in the district courts of this state all appeals from orders or final decisions of a district magistrate judge shall be heard by a district judge or associate district judge. Except as otherwise provided by law, such appeals shall be taken by notice of appeal specifying the order or decision complained of and shall be filed with the clerk of the district court within ten (10) days after the entry of such order or decision.” Appeals contemplated by K.S.A. 1982 Supp. 60-2103a are from orders or final decisions of a district magistrate judge’s rulings in civil actions. The court, therefore, had no jurisdiction to hear an appeal under that procedure. Failing under K.S.A. 1982 Supp. 60-2103a, defendant states his right to appeal the district magis trate judge’s ruling after the preliminary examination was provided by K.S.A. 1982 Supp. 22-3609a. It states in part: “(1) A defendant shall have the right to appeal from any judgment of a district magistrate judge. The administrative judge shall be responsible for assigning a district judge or associate district judge for any such appeal. The appeal shall stay all further proceedings upon the judgment appealed from. “(2) An appeal to a district judge or associate district judge shall be taken by filing a notice of appeal with the clerk of the court. No appeal shall be taken more than 10 days after the date of the judgment appealed from. “(3) The clerk of the district court shall deliver the complaint, warrant and any appearance bond to the district judge or associate district judge to whom such appeal is assigned. The case shall be tried de novo before the assigned district judge or associate district judge.” The order binding the defendant over for arraignment was not a “judgment” from which a defendant has a right to an appeal. Judgments that can be appealed under K.S.A. 1982 Supp. 22-3609a are convictions in traffic or misdemeanor cases and those convictions rendered pursuant to K.S.A. 1982 Supp. 22-2909(c). Prior to July 1, 1970, an accused was required to raise the question of the sufficiency of a preliminary examination prior to arraignment by a plea in abatement. The plea of abatement as a procedural device was abolished by K.S.A. 22-3208(1). Since July 1,1970, the sufficiency of a preliminary examination may be challenged only by a motion to dismiss or grant appropriate relief. Failure to raise the question by such motion constitutes a waiver and precludes review on appeal. Like the plea in abatement, review of the district court’s order denying the motion to dismiss must be limited to the issues advanced by the motion. Issues not raised by the motion and, therefore, not presented to the court are deemed waived. Defendant had no right to appeal the binding over for arraignment order of the district magistrate since it was not a judgment which could be appealed. The court was correct in denying the defendant’s appeal of the judge’s order binding over the defendant for arraignment. Defendant next contends it was error to allow the prosecutor to call a witness to testify, knowing that the witness will claim the privilege not to testify in the presence of the jury. The witness, Kenneth Rerry, had participated in the theft and killing of Robbins. Kenneth Rerry was announced as the next witness for the State. The prosecutor stated the witness was in the Law En forcement Center under guard and would have to be brought to the court. At the bench, defendant’s attorney informed the judge that the prosecution knew the witness would refuse to testify. The judge indicated he had been informed earlier, by Berry’s attorney, Berry would invoke the “Fifth.” Berry appeared in court and in the presence of the jury announced he would not testify. The judge had Berry sworn as a witness; he informed the witness of his right not to incriminate himself under the Constitution. The judge asked Berry if he intended to invoke his Fifth Amendment right. Berry affirmed he would not testify and was released as a witness. A prosecuting attorney who in a trial asked witnesses, who had previously entered pleas of guilty, incriminating questions concerning their relationship with the defendant, having knowledge that the witnesses would invoke the privilege against self-incrimination, is not guilty of misconduct where he initially did not believe that the witnesses could properly invoke their privilege against self-incrimination, reasoning with some justification that the witnesses’ pleas of guilty to the same charge would erase any testimonial privileges as to the conduct invoked. The witnesses had testified at the trial and invoked their privilege only as to questions that would incriminate them. The United States Supreme Court held that although the witnesses asserted their Fifth Amendment right against self-incrimination several times during their testimony, the assertion of their rights was at most cumulative support for an inference well established by the unprivileged portion of their testimony. In absence of prosecutorial misconduct no reversible error was found. Namet v. United States, 373 U.S. 179, 10 L.Ed.2d 278, 83 S.Ct. 1151 (1963). In State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982), the defendant attempted to call a witness who was not charged for participating in the offense for which the defendant was being tried, but the possibility of charges being brought against that witness were very real. The witness had allegedly given a prior statement, which had not been shown to be voluntary, and there had been no determination that the prior statement was admissible against the witness by a court. The witness, through counsel, had clearly informed the judge and trial counsel the witness would not answer questions that might incriminate her, and would refuse to answer based on the Fifth Amendment right. The trial court should not allow the defendant to call a witness and have that witness be forced to claim the right to refuse to answer questions that would be incriminating. The Kansas Supreme Court ruled: “It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege.” State v. Crumm, 232 Kan. 254, Syl. ¶ 1. Here the prosecution was attempting to lay the foundation for the use of prior testimony given by Berry at the defendant’s preliminary examination. K.S.A. 1982 Supp. 60-460(c) provides for the use of prior testimony in a trial if there was a right and opportunity to cross-examine the witness at a previous hearing. To utilize Berry’s testimony at the preliminary in the trial, the court must find the witness is unavailable and that the defendant’s right of confrontation was protected at the prior hearing. Where a witness claims his privilege against self-incrimination he is not available for cross-examination within the meaning of K.S.A. 1982 Supp. 60-460(a). State v. Oliphant, 210 Kan. 451, 453-54, 502 P.2d 626 (1972). From the record it is apparent that Berry had a right, under the Fifth Amendment to the United States Constitution, to refuse to answer questions that would incriminate him. Berry had testified at the defendant’s preliminary examination and had been subject to cross-examination. Berry was not availáble to testify as a witness having exercised his right to refuse to incriminate himself. In order for the prosecution to introduce Berry’s prior statement, a proper foundation for admissibility was required. Berry was not called for the sole purpose of allowing the jury to observe the witness’ claim of privilege against self-incrimination but to have his prior testimony presented to the jury as evidence at the trial. The jury was aware of Berry’s involvement in the crime when the transcript of his prior testimony was read in court. The procedure followed in this case was not error requiring reversal but harmless error since it would not have changed the outcome of defendant’s trial. In the future trial courts should not proceed in this manner. Claims of privilege should be determined outside the presence of the jury, since undue weight may be given by a jury to a claim of privilege. If the court determines that the prior statement is admissible, then the jury should be told simply that the witness is not available before the prior testimony is read into the record. Defendant’s third contention is that the preliminary examination testimony of Kenneth Berry should not have been admitted at the trial since defendant did not have the opportunity to confront and cross-examine Berry at the preliminary examination. Berry testified July 20 and 21, 1981, at the defendant’s preliminary examination. Counsel for the defendant conducted a very detailed and complete cross-examination of the witness. Defense counsel asked the witness more than 300 questions and at the close of his cross-examination stated: “That’s all the questions I have of this witness.” This court has recognized that under both the United States and the Kansas Constitutions, a defendant charged with a crime is entitled to the right of confrontation. The Sixth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution guarantee the right of the accused to confront the witness against him. The primary reason underlying the constitutional “confrontation” rule is to allow a defendant charged with a crime an opportunity to cross-examine the witnesses against him. State v. Terry, 202 Kan. 599, 451 P.2d 211 (1969). K.S.A. 1982 Supp. 60-460(c)' provides for the use of prior testimony in a trial: “Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered or (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when (A) the testimony is offered against a party who offered it in the party’s own behalf on the former occasion or against the successor in interest of such party or (B) 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, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face.” To allow testimony of a witness given at a prior hearing, two conditions must be shown: (1) A witness has given testimony at a previous judicial proceeding against the same defendant and the witness was subject to cross-examination by the defendant; (2) that the witness who gave the prior testimony was not available to testify in the present hearing. State v. Terry, 202 Kan. 599. A declarant who claims his privilege of self-incrimination at the trial is not available as a witness. This exception has been explained as arising from practical necessity and justified on the ground that the right of confrontation initially afforded provides substantial compliance with the purposes behind the confrontation requirement. The court did not err in admitting the testimony of Berry given at the preliminary examination. Defendant next contends that the court erred in giving a “last minute aiding and abetting” instruction. The State requested the court to instruct on the theory that defendant aided and abetted after both sides had rested their case. Defendant admits in his brief: “The defendant is well aware that the current state of the law in Kansas would appear to permit the action of the state.” Defendant requested that the rule should be changed based upon modern concepts of fair play and due process. K.S.A. 22-3201 requires that the information be a plain and concise written statement of the essential facts constituting the crime charged. The information must enable the accused to know the nature and the cause of the charge to form a defense. State v. Loudermilk, 221 Kan. 157, 159, 557 P.2d 1229 (1976). An aider and abettor of a crime is guilty, the same as a principal. State v. Payton, 229 Kan. 106, 622 P.2d 651 (1981). No separate offense is created by instructing on aiding and abetting. Kenneth Berry testified by use of the preliminary examination transcript that the defendant fired the first shot at Robbins. Marla Longworth testified the defendant shot Robbins several times, then handed the gun to her. Longworth stated she shot once into the ground. This testimony was sufficient for the jury to conclude that the defendant may not have killed Robbins but aided and abetted Longworth, or defendant killed Robbins. There was sufficient evidence to instruct the jury on aiding and abetting. State v. Bryant, 228 Kan. 239, 246, 613 P.2d 1348 (1980). The jury was not required to accept either version in toto. From the totality of the evidence the jury could have reasonably concluded that Longworth was the principal and that the defendant aided and abetted Longworth or that the defendant was the principal, aided and abetted by Longworth. We do not agree that our present law is required to be changed at this time. The trial court’s instruction on aiding and abetting after both parties had rested was correct. Defendant contends that jury instructions on felony murder and theft were inadequate, improper, and confusing. Defendant’s complaints are directed to instructions numbered 18 and 19. These two instructions stated: “No. 18 “The defendant is also charged with the crime of felony murder in the first degree. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant killed Kelsie Robbins; “2. That such killing was done maliciously; “3. That it was done in the commission of a felony; and “4. That this act occurred on or about the 3rd day of June, 1981, in Wilson County, Kansas. “No. 19 “You have been previously instructed that to find defendant guilty of a felony murder, one of the elements you must find is that it was done in the commission of a felony. “The felony charged in this case is theft, and to establish this felony, each of the following must be proved: “1. That Kelsie Robbins was the owner of the property in question; “2. That the defendant obtained unauthorized control over the property; “3. That defendant intended to deprive Kelsie Robbins permanently of the use or benefit of the property; “4. That the property was of a value of more than $100.00; and “5. That on or about June 3, 1981, the property passed through Wilson County, Kansas.” In charging the jury in a criminal case, it is the duty of the district court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate language of the court. State v. Nesmith, 220 Kan. 146, Syl. ¶ 3, 551 P.2d 896 (1976). Instruction 18 indicates that the State must show the killing was done maliciously to convict the defendant under the felony murder rule. Neither party objected at the time of trial or raised that erroneous requirement on appeal. Its inclusion could only benefit the defendant by requiring the State to overcome a greater burden. Its inclusion was harmless and would not change the outcome of the trial. Defendant claims Instruction 18 is improper for the reason the felony committed is not specified. Instruction 19 follows In struction 18 and specifies that the felony charged is theft and sets forth the necessary elements to prove the crime of felony theft. The propriety of the instructions to the jury is to be gauged by consideration of the whole; each instruction is to be considered in conjunction with all the other instructions in the case. State v. Korbel, 231 Kan. 657, 647 P.2d 1301 (1982). Defendant claims Instruction 19 is improper on the ground it does not require that control be exerted in Wilson County, Kansas, or in the State of Kansas. Due to the circumstances of this case, it was necessary that the normal PIK Instruction be modified to fit the facts. Here, defendant, Berry and Longworth, while in Wilson County, Kansas, agreed to steal Robbins’ personal property in the State of Arkansas and kill Robbins to hide the theft. Defendant and Longworth returned to Arkansas with Robbins. While in Arkansas the defendant placed Robbins’ property in Robbins’ car trunk. Defendant, Longworth and Robbins returned to Wilson County, Kansas. Defendant, Berry and Long-worth completed the conspiracy when Robbins was killed and the balance of his personal property, including his car, was taken. The court modified Instruction 19 to show that the theft in this case was a continuing crime. The theft was not completed until Robbins was dispatched and the balance of his property taken. Normally, venue and the place of the trial is in the county where the crime was committed. K.S.A. 22-2602; State v. Lovelace, 227 Kan. 348, 351, 607 P.2d 49 (1980). K.S.A. 21-3104 provides: “(1) A person is subject to prosecution and punishment under the law of this state if: “(a) He commits a crime wholly or partly within this state; or “(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or “(c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state. “(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.” K.S.A. 22-2610 provides: “When property taken in another state by theft or robbery shall have been brought into this state, the venue is in any county into or through which such property shall have been brought.” Defendant contends the theft was completed in Arkansas prior to the killing of Robbins; therefore, Instructions 18 and 19 were erroneous. Robbins’ property stolen in Arkansas was brought into Wilson County, Kansas. Time, distance, and the causal relationship between the underlying felony and killing are factors to be considered in determining whether the killing is a part of the felony and therefore subject to the felony murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony murder rule is ordinarily a question of fact for the jury to decide. State v. Hearron, 228 Kan. 693, Syl. ¶ 2, 619 P.2d 1157 (1980). When the evidence is conclusive, as a matter of law, and the murder occurred within the res gestae of the crime, the trial court need not instruct that determination of whether the murder occurred within the res gestae is a fact question for the jury. State v. Rider, Edens & Lemons, 229 Kan. 394, Syl. ¶ 5, 625 P.2d 425 (1981). The court properly instructed under the facts of this case. The court’s instructions were not inadequate, improper, or confusing. Defendant’s last contention is theft, not being inherently dangerous in and of itself to human life, cannot be used as the underlying felony for the basis of the felony murder rule. The Kansas felony murder statute provides: “Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.” K.S.A. 21-3401. Emphasis supplied. A literal reading of this statute would find any felony to be sufficient to support a charge of felony murder if a causal relation exists. The purpose of the statute is to deter those engaged in felonies from killing negligently or accidentally, and that doctrine should not be extended beyond its rational function which it was designed to serve. To invoke the felony murder rule there must be proof that a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life. State v. Smith, 225 Kan. 796, 799-800, 594 P.2d 218 (1979). In State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980), the defendant was convicted of felony murder (K.S.A. 21-3401). The underlying felony which was used to classify the homicide as felony murder was unlawful possession of a firearm. K.S.A. 21-4204(1)(&). Underwood had been convicted of stealing a bicycle in 1974. Underwood had stood by while another individual cut the bolt securing a bicycle so that individual could ride away on the bicycle. Underwood was later apprehended with the bolt cutter in his pocket. Underwood entered a plea of nolo contendere to felony theft, and was thereby prohibited from owning or possessing certain firearms. On October 28, 1978, Underwood and others were involved in an altercation. Several individuals involved in the fight were armed with guns and knives. Underwood, believing a friend was endangered by an individual armed with a shotgun, took a pistol from a friend and shot and killed the person with the shotgun. Underwood was convicted of felony murder and appealed. This court in State v. Underwood, 228 Kan. 294, reviewed the prior law. In a 4-3 decision the court departed from the law as stated in State v. Moffitt, 199 Kan. 514, 431 P.2d 879 (1967). The court determined that unlawful possession of a firearm by a convicted felon, when viewed in the abstract, is not a felony inherently dangerous to human life for the purpose of the felony murder rule, and would not support a felony murder charge. The court then determined K.S.A. 1979 Supp. 21-3110(8) contained a definition of forcible felonies which included treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person. Unlawful possession of a firearm was not included in the enumerated forcible felonies nor did it fit within the catch-all phrase at the end of the definition. The court determined that the underlying felony in the felony murder rule must be a forcible felony, one inherently dangerous to human life. Defendant claims that felony theft (K.S.A. 21-3701) is not a forcible felony and therefore is not an underlying felony required for a charge under the felony murder rule. There are three statutes that deal with the offense of theft: (1) theft — K.S.A. 21-3701; (2) theft of lost or mislaid property — K.S.A. 21-3703; and (3) theft of services — K.S.A. 21-3704. If the value of the stolen item or service is $100.00 or more, then the offense is a felony under each statute. Theft, K.S.A. 21-3701, became effective July 1, 1969. The legislature consolidated the offenses of larceny, embezzlement, false pretense, extortion, and receiving stolen property into the single crime of theft. The prior law was unduly complex, and created unnecessary problems in pleading and proof. All involved the common element of obtaining property by dishonest means. Though consolidated into a single statute of theft, the former offenses retained a portion of their former identity in the subdivisions contained within K.S.A. 21-3701. Theft is not one of the specified forcible felonies included in K.S.A. 21-3110(8). Does theft therefore fall into the categories of “any other felony which involves the use or threat of physical force or violence against any person?” Emphasis supplied. Viewing the separate statutes and the subdivisions of theft in the abstract, we can determine that the following crimes are not inherently dangerous to human life: (1) theft of lost or mislaid property — K.S.A. 21-3703; (2) unlawful deprivation of property — K.S.A. 21-3705; (3) theft, obtaining by deception control over property — K.S.A. 21-3701(b); and (4) theft by control over stolen property knowing the property to have been stolen by another — K.S.A. 21-3701(d). K.S.A. 21-3701 incorporates two sections that are, when viewed in the abstract, offenses that are inherently dangerous to human life: (1) theft by obtaining or exerting unauthorized control over property — K.S.A. 21-3701(a); and (2) theft by obtaining control over property by threat — K.S.A. 21-3701(c). Theft by obtaining or exerting unauthorized control over property (K.S.A. 21-3701[o]) is generally committed by stealth, but secrecy, or the owner’s ignorance, is not a necessary element of the crime. The thief s intent is to deprive the owner of his property and to appropriate the property to his own use. The act of taking may be open, with a reckless disregard of the consequences, and even with knowledge of the owner. Theft — obtaining by threat control over property (K.S.A. 21-370l[c]), is taking property by putting the owner in fear of personal injury or injury to his property through fear induced by threats. The taking is without the voluntary consent of the owner and the owner allows the property to be taken as a result of actual fear induced by threats calculated to excite a reasonable apprehension of harm. The offense of theft set forth in the court’s instruction is a felony when viewed in the abstract inherently dangerous to human life and is a proper felony to sustain a conviction for murder in the first degree under the felony murder rule. However, we wish to emphasize that theft may be the underlying felony in a charge of felony murder only in cases where the discovery of the thief during the course of the theft results in the death of a person. The judgment of conviction on the felony murder charge is affirmed.
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The opinion of the court was delivered by Lockett, J.: This is an action for damages caused by alleged violations of the Oil Well Pollution Act, K.S.A. 55-121. The issues of liability and damages were bifurcated and the matter proceeded on the issue of liability only. Summary judgments were entered for each defendant; from the trial court’s ruling this appeal results. This is an appeal from an order granting summary judgment in case No. 54,357, and a motion to dismiss in case No. 54,358. Both cases arise out of the same factual situation and were filed by plaintiff McAlister, against various oil companies who had conducted or were conducting oil operations on or near plaintiff’s land. McAlister is the owner of three tracts of land in Harvey County, Kansas. Plaintiff purchased a two-acre tract of land in 1966 where the old Willis School is located; in 1967 he purchased an additional 80-acre tract adjacent to the Willis School tract; and in 1968 an additional 40 acres adjacent to the Willis School tract was purchased by the plaintiff. McAlister purchased the land to form a new agriculture business and to conduct experiments, knowing the area was situated in an oil-producing area. When the land was purchased there was an existing fresh water well on the Willis School tract that produced good water. McAlister determined that the existing well did not produce the volume of fresh water to supply his increasing needs. In February of 1970, McAlister had a new well drilled to the depth of 120 feet outside the schoolhouse. In the early part of 1974, McAlister noticed that the water in this well suddenly had developed an “extremely high chloride and salt content” which rendered the water unfit for any use. Plaintiff filed his first action in case No. 54,357. During discovery, plaintiff determined that additional oil companies may have contributed to the pollution of his fresh water well; therefore, he filed the second action. At a hearing conducted by the district court, the judge sustained the defend ants’ motion for summary judgment in case No. 54,357 and motion to dismiss in case No. 54,358. Plaintiff has appealed both orders. August 29, 1975, plaintiff filed his petition against five oil companies, Atlantic Richfield Company, successor to Sinclair Prairie Oil Company (Atlantic Richfield); Mobil Oil Corporation, successor to Magnolia Petroleum Corporation (Mobil); Aladdin Petroleum Corporation (Aladdin); Westrans Petroleum, Inc. (Westrans); J. S. Kantor d/b/a Kantor Oil Company (Kantor); and filed an amended petition on May 24, 1976, adding Southern States Oil Corporation (Southern). For some reason, plaintiff and his attorney had a parting of the way shortly after the petition was filed and plaintiff proceeded pro se. For the next several years, the parties conducted discovery. During 1981, each of the defendants filed motions for summary judgment which the trial court sustained. When sustaining each defendant’s motion for summary judgment, the trial court found (1) there was no genuine issue as to any material fact and the party was entitled to judgment as a matter of law (K.S.A. 60-256[c]); (2) plaintiff had not established a causal connection to any of the defendants and the claims were based on nothing more than speculation and conjecture; and (3) K.S.A. 55-140 was not appropriate or applicable to the case. Other findings were made by the court in each order of summary judgment but will not be stated in the opinion since they are not material to the finding. Plaintiff listed witnesses who were local residents that would testify to various salt water or oil tank leaks, leadline leaks, well leaks, tank battery leaks, breaks, surface spills, and various disposal ponds now existing or which had existed in the past and were now covered over. None of the local witnesses could testify which defendant or if any defendants’ acts caused pollution to the plaintiff s water well. Depositions were taken from four expert witnesses listed by the plaintiff. (1) Ralph E. O’Connor, district geologist for the Kansas Department of Health and Environment: Mr. O’Connor had conducted extensive investigation of water wells within a several mile radius of plaintiff s Willis School well. From the investigation, O’Connor concluded that the salt water pollution was a result of the plaintiff s drilling his water well too deep, thereby penetrating the salt laden waters present in the Permian zone underlying the equus beds. Other wells less than 120 feet in depth in the area produced fresh water. O’Connor also stated chemical analysis of the water from plaintiff s well indicated that the pollution of the well water was oil field derived. (2) Dr. Ronald L. Wells, a consulting engineer and Director of General Laboratories in Hutchinson, and a graduate engineer from Colorado School of Mines, with training and past experience in engineering, chemistry and physics, and having taken college courses in geology, historical geology, crystallography, and mineralogy, conducted two analyses of plaintiff s well water. Dr. Wells was of the opinion that the contamination of plaintiff s water well was salt water brine from oil field production. Dr. Wells admitted he had no specific evidence of who contributed to the pollution of the plaintiff s water well. Dr. Wells was of the opinion that, if salt water brine was allowed to escape on the surface of sandy soil over the equus beds, it would percolate down into the equus bed. The escaping salt water brine would generally flow in one direction but also would fan out in several directions in the equus beds, contaminating the beds. (3) John S. Fryberger, hydrogeologist and Vice President of Engineering Enterprises, Inc., and Richard Lewis, project hydrogeologist, filed a report. Based on tests of plaintiff s well water, they concluded that the salt water pollution in the water was from oil field production. A field investigation encompassing an area of 25 square miles in the vicinity of the McAlister Willis School well determined the source of pollution of plaintiffs water well. The investigation, using Kansas Corporation Commission records and unpublished data, also involved interviewing local residents, measuring private wells, determining the configuration of the surface of the equus beds, and using aerial maps to determine the source of pollution of plaintiffs water well. The source of pollution was leachate from unlined ponds, seepage from improperly plugged wells, injection into shallow zones, poor maintenance of brine ponds, and leakage from leadlines and tanks conveying or holding brine water. Based on the time of operation, size of ponds, and length of salt water pipelines, they concluded the percentage of damage contributed by each defendant. Some of the information contained in the report indicated the defendants’ pollution, if any, could not yet affect plaintiff s water well due to the time necessary for the escaping pollutant to travel and affect plaintiff s well water. (4) Robert Hecht-Nielsen: Hecht-Nielsen has a doctorate degree in mathematics and a bachelor of science degree from Arizona State University. Based on information supplied by the plaintiff, he prepared a report dated October 22, 1979. Using the information supplied, he devised a mathematical formula to determine the percentage of pollution contributed by each of the defendants. He admitted he was not prepared to prove the results of his determination. Plaintiff brought the action for damages for the pollution of his fresh water well claiming defendants violated K.S.A. 55-121 and that there is evidence ■ that the defendants allowed salt water brine to escape from their oil drilling operations. Judgment was granted the defendants pursuant to K.S.A. 60-256(c), which provides in part: “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Emphasis supplied. A motion for summary judgment may be granted only if the record before the court conclusively shows there remains no genuine issue of a material fact unresolved. Hanks v. Riffe Constr. Co., 232 Kan. 800, 658 P.2d 1030 (1983); Motors Insurance Corporation v. Richardson, 220 Kan. 288, 552 P.2d 894 (1976); Brown v. Wichita State University, P.E.C., Inc., 217 Kan. 661, 538 P.2d 713 (1975); Kern v. Miller, 216 Kan. 724, 533 P.2d 1244 (1975); State Bank of Burden v. Augusta State Bank, 207 Kan. 116, 483 P.2d 1068 (1971); Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770 (1969); Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964 (1965). “A summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over the facts. . . . “A mere surmise or belief, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing him his day in court.” Brick v. City of Wichita, 195 Kan. at 211. “Petitioner next complains that a question of material fact exists which precludes summary judgment. If a question of material fact remains, then to grant summary judgment is error.” Hall v. Twin Caney Watershed Joint Dist. No. 34, 4 Kan. App. 2d 202, 204, 604 P.2d 63 (1979). Emphasis supplied. The sole fact issue in this case is whether any or all of the defendants allowed salt water brine to seep from their oil field operations into plaintiffs water well. If there is a question remaining as to whether the seepage into the plaintiffs water well did occur as to a defendant, then, as to that defendant, summary judgment is in error. This action was initiated with plaintiff alleging that defendants violated K.S.A. 55-121. K.S.A. 55-121, first enacted in 1921, provides in pertinent part: “It shall be unlawful for any person, having possession or control of any well drilled, or being drilled for oil or gas, either as contractor, owner, lessee, agent or manager, or in any other capacity, to permit salt water . . . from any such well, to escape by overflow, seepage or otherwise from the vicinity of such well, and it shall be the duty of any such person to keep such salt water . . . confined in tanks, pipe lines or ponds, so as to prevent the escape thereof.” The statute goes on to provide that such escape of salt water does not violate the statute if it is because of circumstances beyond the operator’s control or could not have been reasonably anticipated or guarded against; but that issue has not been raised by the defendants, and none of them have presented any evidence by experts or otherwise as to that issue. If any of the defendants violated K.S.A. 55-121 and caused plaintiff s pollution, they are civilly liable to plaintiff. In Rusch v. Phillips Petroleum Co., 163 Kan. 11, 180 P.2d 270 (1947), the plaintiff, a farmer, sued Phillips, Cities Service, Gulf, and Phil-Han, claiming pollution of his fresh water because of seepage from salt water disposal ponds. The court held, largely on the basis of chemical analysis showing that the salt water polluting plaintiffs water carried defendant’s oil-bearing strata, that plaintiff s case should be submitted to the jury on circumstantial evidence. Further, the court held not only is the issue a jury question but that plaintiff need not disprove other oil operations did not cause his pollution. “The pollution damages, if any, resulted from seepage from appellants’ ponds into the substrata of the soil and through such strata into the springs and natural ponds located on appellee’s land.” 163 Kan. at 14. The surface drainage in the Rusch case suggested that the water would drain toward plaintiff, but the subsurface contours were not known. There was another party who had not been sued but who had a disposal pond that very well could have caused the pollution complained of by the plaintiff; however, the court held that the case should be submitted to a jury, stating: “ ‘It may also be noted that appellees were not obliged to exclude every other possible source of pollution after establishing facts from which it reasonably could be inferred that appellants had polluted the stream. The fact that appellants polluted the stream could, of course, be shown by circumstantial evidence. Such evidence in a civil case in order to be sufficient to sustain a verdict need not rise to that degree .of certainty which will exclude every reasonable conclusion other than that reached by the jury. . . . [I]t was thereafter not a prerequisite to recovery that it be shown appellants were the sole cause of the pollution.’ ” 163 Kan. at 16. “It is not imperative there should be proof of pollution by chemical analysis .. . .” 163 Kan.. 11, Syl. ¶ 2. “G.S. 1935, 55-121, commonly referred to as the oil well pollution statute, does not prohibit merely the flow of salt water, oil or refuse from oil and gas wells over the surface and away from the immediate vicinity of such wells but, subject to the proviso therein contained, requires such substances to be safely confined, in the manner designated, to prevent their escape.” 163 Kan. 11, Syl. ¶ 4. The plaintiff in this case need not show negligence, nor need he pinpoint what a particular defendant did or did not do to cause his pollution; this is not an issue. All he need prove is a violation of K.S.A. 55-121. In Polzin v. National Cooperative Refinery Ass’n, 175 Kan. 531, 266 P.2d 293 (1954), a case involving pollution of fresh water caused by escape of salt water from a well in which salt water was forced, the court held that: “The evidence disclosed community of wrongdoing and concurrent negligence. In fact the burden did not rest on appellee to prove appellants’ negligence. The statute makes it unlawful to permit saltwater, oil or refuse to escape. Appellants’ only defense was to prove the escape thereof was beyond their control or that it could not have been reasonably anticipated and guarded against. (G.S. 1949, 55-121.)” 175 Kan. at 536. Emphasis supplied. All of the summary judgments granted in this case reflect in the journal entry filed March 11,1982, that they are based upon a finding that plaintiff could not pinpoint what each defendant did wrong. Such a finding is not a proper or material basis for summary judgment in this case. Such a finding and conclusion is immaterial where plaintiff has pled and offered substantive proof of a violation of K.S.A. 55-121 by each of the defendants. In Reiserer v. Murfin, 183 Kan. 597, 331 P.2d 313 (1958), a case that involved an alleged pollution of plaintiff s fresh water well by salt water seeping through substrata, the court approved the ruling in Rusch v. Phillips Petroleum, Co., 163 Kan. 11, holding that whether the defendant caused plaintiff s pollution is a jury question and affirming that negligence of defendant need not be proved. “Defendant’s obligation, or duty, is set out in the statutes above quoted [K.S.A. 55-118, -121] and in a damage action under these statutes negligence does not have to be alleged as an element of the petition. In Martin v. Shell Petroleum Corp., 133 Kan. 124,299 Pac. 261, this court held that negligence did not have to be proved as an element in a damage action under 55-118. It would therefore be a useless thing to require plaintiff to plead something in his petition that he did not have to prove by his evidence.” Reiserer v. Murfin, 183 Kan. at 600. Emphasis supplied. The case was bifurcated and, therefore, issues as to damages have not and should not now be of concern in the appeal. The only issue is whether there is any controverted evidence as to the defendants’ violation of K.S.A. 55-121 by allowing salt water brine to seep into the ground and escape their control and whether the escape of the brine caused plaintiff s pollution. There is eyewitness and aerial photographic evidence that brine escaped the control of each defendant. There is also evidence that the salt water that escaped polluted plaintiffs well. Dr. Wells was firmly of the opinion that the salt water in plaintiff s well, in August, 1974, tested over 5,000 parts per million sodium chloride, was from the oil field production. The witness O’Connor related that a sodium chloride ratio below six was indicative of oil field salt water and that plaintiff s water well tested 0.40, which was less than six. Dr. Wells was also of the opinion that all of the defendants caused plaintiff s pollution. Lewis and Fryberger concluded on the basis of field investigations, interviews with witnesses, and state documents and aerial photographs that each defendant had caused plaintiff s pollution. These facts and the locations of defendants’ oil field operations relative to plaintiff s fresh water well require that the matter be submitted to a jury. The trial court has weighed the testimony of the plaintiffs witnesses and determined their observations were of little value or were pure speculation and conjecture. In considering a motion for summary judgment, a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978). The court erred in granting defendants’ motions for summary judgment. The judgment of the district court in case No. 54,357 is reversed and remanded for a trial of the issues. During discovery plaintiff determined that two additional oil companies, Marathon Oil Company, Inc., successor to Ohio Oil Company, Inc. (Marathon), and Skelly Oil Company, Inc., now merged into Getty Oil Company (Getty), have contributed to the pollution of his fresh water well. Marathon and Skelly had conducted oil operations in the 1930’s and 1940’s near the present water well. On May 20, 1981, plaintiff filed a motion to amend his petition in McAlister v. Atlantic Richfield Co., by adding Marathon and Getty. The trial court ruled that the plaintiff could not amend because of the late date, but allowed the plaintiff to file a separate suit. On July 1, 1981, plaintiff filed his claim against Marathon and Getty, stating the same facts alleged in the original case. Getty filed an answer September 8, 1981, and a motion to dismiss on September 15, 1981. Marathon, prior to filing an answer, filed a motion to dismiss on September 8, 1981. Marathon and Getty each claimed that the statute of limitations, K.S.A. 60-515(a), barred plaintiff s action. December 16, 1981, Marathon’s and Getty’s motions were heard by the court. The court ruled that more than two years after plaintiff was first damaged (1974), plaintiff filed his petition alleging that the damages were permanent in nature, and therefore plaintiff was barred by the two-year statute of limitations, K.S.A. 60-513(a); that Marathon’s and Getty’s last act that could have damaged plaintiff occurred more than ten years before plaintiff commenced this action; that assuming plaintiff s claims were true, his claims against Marathon and Getty are barred by the statute of limitations, K.S.A. 60-513(a) and (b). Plaintiff, on January 8, 1982, filed a motion for a new trial. January 18, 1982, plaintiff filed a motion to amend his petition to claim the oil pollution damages were temporary in nature, therefore not barred by any statute of limitations. March 11, 1982, the court heard motions in both cases filed by the plaintiff. At the hearing on the motions, all plaintiff s motions were overruled. April 7, 1982, plaintiff filed his notice of appeal of the overruling of his motions for a new trial, for leave to amend his petition, for consolidation, and the court’s order dismissing plaintiff s petition. No discovery was conducted in this case. All parties to this action were familiar with discovery conducted in the companion case. Plaintiff contends that his claim should not have been dismissed as barred by the statute of limitations where the action was filed for more than two years after plaintiff was first damaged but where plaintiff claimed temporary repeated damage to his business. Temporary damages or continuing damages limit recovery for injury that is intermittent and occasional and the cause of the damages remediable, removable, or abatable. Damages are awarded on the theory that the cause of the injury may and will be terminated. Temporary damages are defined as damages to real estate which are recoverable from time to time as they occur from injury. 25 C.J.S., Damages § 2, p. 626. Permanent damages are given on the theory that the cause of injury is fixed and that the property will always remain subject to that injury. Permanent damages are damages for the entire injury done — past, present and prospective — and generally speaking those which are practically irremediable. 25 C J.S., Damages § 2, pp. 622-23. If an injury is permanent in character, all the damages caused thereby, whether past, present, or prospective, must be recovered in a single action. Plaintiff claims a continuing wrong each time the salt water pollutants trespass onto his subsurface water. Marathon and Getty maintained oil operations that continue to allow salt brine into the equus beds, which brine continues to slowly move onto and under his land, injuring and reinjuring his land and personal business daily. Plaintiff cites Peterson v. Texas Co., 163 Kan. 671, 186 P.2d 259 (1947), as authority. Peterson filed his first case against defendant in 1942, for damage to fresh water under plaintiff s land, damage to his basement and house foundation and his cattle, abandonment of his pasture, loss of chickens, and loss of egg production. Plaintiff was also compelled to hand carry water. Defendant operated an oil lease and allowed waste water to escape from a pond he maintained. The escaping waste water caused plaintiffs injuries. In 1943 the parties settled the case. Peterson brought a second action in 1945 against the same defendant. Peterson’s second action was for damages incurred by defendant’s operation of the oil lease which caused damage to the strata lying underneath his property. His well water became polluted causing him to rebuild it; he had to pump water out of his basement; additional damage was done to his farm animals; and additional loss of egg production occurred. The court determined that each action was separate: (1) escaping surface pollution, and (2) pollution of the strata underneath Peterson’s property. The second action was not barred by the statute of limitations or res judicata. In Gowing v. McCandless, 219 Kan. 140, 547 P.2d 338 (1976), an upper landowner brought an action for damages to crops caused by the defendant’s obstruction of a watercourse. The obstruction caused occasional flooding of the plaintiffs land. Schroeder, J. (now Chief Justice) stated the Kansas law on temporary damages: “When this case went to trial the plaintiffs were not seeking to recover permanent damages to their land occasioned by the obstructions placed in the watercourse on the defendants’ land. The posture of the case here presented is one in which the plaintiffs seek to recover temporary damages arising from the maintenance of obstructions in the watercourse on the defendants’ land (alleged in the petition to be a continuing nuisance), and limit the recovery they seek to damages to their crops, sustained within two years prior to the filing of their petition, and punitive damages. “Where the injury or wrong is classified by the courts not as original or permanent, but as temporary, transient, recurring, continuing or consequential in nature, it has been held that the limitation period starts to run only when the plaintiffs’ land or crops are actually harmed by overflow, and for purposes of the statute of limitations, each injury causes a new cause of action to accrue, at least until the injury becomes permanent. [Citations omitted.] This rule is especially applicable if the situation involves other elements of uncertainty, such as the possibility or likelihood of the alteration or abatement of the causative condition, or uncertainty in regard to the future use or improvement of the land, so as to prevent a reasonably accurate estimate of future damages. [Citation omitted.] “A number of our cases have permitted relief for damages caused by overflowing waters if brought within two years of the overflowing. [Citations omitted.] “In the instant case the evidence does not show the cause of the injury to be permanent. In many cases injuries have been classified as temporary or recurring in nature when caused by an abatable nuisance or condition, or by defects which can be repaired or remedied at reasonable expense. Successive injuries of this nature have been held to give rise to separate and distinct causes of action. [Citation omitted.] “It has frequently been said the principle upon which one is charged as a continuing wrongdoer is that he has a legal right, and is under a legal duty, to terminate the cause of the injury. [Citations omitted.] “Under this rule the owner of land injured by overflows and poor drainage caused by an abatable condition or nuisance has the right to assume the condition or nuisance will be abated. Here the appellees presented evidence that the obstructions were not ‘permanent.’ That is to say, the obstructions could be removed from the drainage ditch. In a legal sense these obstructions were not ‘permanent’ because they were not approved by the state.” 219 Kan. at 144-45. Plaintiff s well has been polluted and undrinkable since 1974. Plaintiff alleges in his amended petition, seeking damages for a temporary injury, that not less than 150 years nor more than 400 years will pass before the well water will be once again fit for drinking. For all practical purposes plaintiffs damage is permanent and capable of being determined. Correctly determining that plaintiff s action was for permanent damages as alleged in the petition, the court concluded that such claim was barred by the statute of limitations. K.S.A. 60-513(a) states in part: “(a) The following actions shall be brought within two (2) years: “(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.” Plaintiff s final contention is that the court erred when plaintiff was denied, by the court, leave to file an amended petition after defendants’ motion to dismiss was sustained. Plaintiff filed his petition against Marathon and Getty July 1, 1981, claiming permanent damages. Getty filed its answer September 8,1981, and a motion to dismiss on September 15, 1981. Marathon filed a motion to dismiss September 8, 1981, and never was required to file an answer because plaintiffs action was dismissed by the court December 16, 1981, his claim for permanent injury being barred by the two-year statute of limitations. K.S.A. 60-513(a). January 18, 1982, plaintiff moved to amend his petition to claim temporary damages, which amendment the trial court denied. Plaintiff concedes under K.S.A. 60-215 he must obtain leave of the court or written consent from Getty because Getty has filed a written response (answer). Plaintiff claims he has a right to amend his petition against Marathon. Marathon has not filed a responsive pleading. Marathon’s motion to dismiss is not a responsive pleading. Weaver v. Frazee, 219 Kan. 42, 51, 547 P.2d 1005 (1976). In Hoover Equipment Co. v. Smith, 198 Kan. 127, 422 P.2d 914 (1967), plaintiff filed to foreclose a mortgage. After issues were joined in the pleading, the action was dismissed by the trial court as to one defendant. Plaintiff moved to amend the pleadings. The trial court refused to allow the amendment. Justice Fromme wrote: “A trial court is given wide latitude and discretion in permitting or refusing amendments of pleading in the interests of justice. In the absence of a clear abuse of discretion the order of the trial court should be approved.” 198 Kan. at 133. See United Kansas Bank & Trust Co. v. Rixner, 4 Kan. App. 2d 662, 610 P.2d 116, aff'd 228 Kan. 633, 619 P.2d 1156 (1980). A discussion of this point is contained in 6 Wright & Miller, Federal Practice and Procedure: Civil § 1483 (1971) at pp. 413-16, as follows: “Although it is clear that an amendment as of course may be served after a motion directed to the pleadings has been made, the question often arises whether the first sentence of Rule 15 (a) continues to be operative once the motion to dismiss is granted. Ideally, if it is at all possible that the party against whom the dismissal is directed can correct the defect in his pleading or state a claim for relief, the court should dismiss with leave to amend. This will afford the party against whom the dismissal is granted the option of amending his pleading or of having a judgment entered against him and taking an appeal. Dismissing with leave to amend is consistent with the mandate set forth in Rule 15 (a) that amendments should be freely granted. In addition, it puts the adverse party on notice that further proceedings in the action are possible, whereas an order that does not specifically include that right leaves the party who successfully moved to dismiss the original pleading in doubt whether his opponent can amend under Rule 15 (a). Of course, if repleading could not possibly correct the defects in the party’s claim, then the court should dismiss the action without leave to replead. “In practice a distinction appears to have been drawn by the courts. In general it has been held that a party may amend as of course within a reasonable time after an order dismissing the complaint has been entered, inasmuch as no responsive pleading has been served. However, if both an order dismissing the action and a final judgment have been entered, or a substantial period of time has elapsed since the dismissal, an amendment may be made only by leave of court. As stated by one court: “If it should be held that plaintiff could amend without leave after a hearing and the granting of summary judgment against him, the effect would be to clothe a litigant with the power, at any time, to reopen a case and possibly to set aside a judgment rendered against him by the court. Rule 15 (a) is not to be construed so as to render Rule 12 meaningless and ineffective. “The practice of requiring the court’s leave to amend when there has been a delay after the granting of a motion to dismiss appears sound, although it is questionable whether the formalistic distinction between the dismissal of a complaint and the entry of judgment used by some courts should be controlling. Indeed, the desirable practice may be to set a specific period after a motion to dismiss has been granted in which plaintiff may file an amended complaint. If he does not do so a final judgment should be entered. Once the motion has been granted, the successful party probably should be able to rely on the dismissal and have the opportunity to oppose any amendment that would reopen the litigation. Moreover, requiring leave of court to amend after the suit has been dismissed will not unduly burden the losing party inasmuch as Rule 15 (a) provides that leave is to be liberally granted. “Finally, it should be noted that although requiring leave of court is more desirable then permitting an absolute right to amend, that practice may be criticized on the ground that it gives the trial court extensive power to allow amendments under Rule 15 (a) and might lead to circumvention of the time limits set forth in Rules 59 (e) and 60 (b) for reopening a judgment. As discussed more fully in a later section, this possibility has led several courts to hold that the proper procedure for a losing party to follow when attempting to amend after judgment is to seek relief under Rule 59 or Rule 60. This approach allows a district court to exercise discretion in deciding whether to relieve a party from a final judgment rendered against him and at die same time it promotes finality of judgments by insuring that the losing party only has a limited time within which to seek relief.” Allowing plaintiff to replead his claim against Marathon could not correct the defects in his claim. The trial court did not abuse its discretion in refusing to allow plaintiff to amend his petition against Getty or Marathon. The judgment is affirmed as to Marathon and Getty in case No. 54,358.
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The opinion of the court was delivered by Miller, J.: This appeal requires a determination of the meaning of an order entered by a Texas judge in a divorce case, and the resultant effect of that order. This case was heard by the Court of Appeals, which reversed the trial court in a divided unpublished opinion. We granted review. The facts, in chronological order, are: November 17, 1963 Mary Joe Johnson and L. W. Johnson were married in Humbolt, Tennessee. September 10, 1968 A child, Marcellaus Ladel Johnson, was born. January 2, 1973 Mrs. Johnson filed this action for divorce in Wyandotte District Court. Defendant, L. W. Johnson, was served personally in Wyandotte County with summons, and he retained counsel and entered his general appearance in the action. January 4, 1973 Mr. Johnson, claiming Gregg County, Texas, as his legal residence, commenced an action for divorce and allied relief in the Domestic Relations Court in and for Gregg County, Texas. Mrs. Johnson entered her general appearance in that action, both pro se and by counsel. June 4, 1973 The Texas court granted a divorce, gave Mrs. Johnson custody of the child, awarded her the Kansas real estate, and fixed child support at $200 per month. June 21, 1973 and July 2, 1973 Mrs. Johnson, through different Texas attorneys, filed motions for a new trial. July 19, 1973 The Texas trial judge entered the following order: “On the 19 day of July, 1973, came on to be heard Respondent Mary Jo Johnson’s Motion for New Trial or in the alternative to set aside the Judgment of this Court dated June 4, 1973. “And the Court after examining the record, considering the same, is of the opinion that said Judgment should be revised in so far as it pertains to the community property of the parties. “It is THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the Judgment of this Court dated June 4, 1973, be, and the same is hereby revised in that the provisions of said Judgment pertaining to the community property of the parties, custody and child support of Petitioner and Respondent’s minor children be and they are hereby set aside. “It is FURTHER ORDERED that a hearing be held on the 13 day of August, 1973, at 1:30 o’clock, p.m. to determine custody, child support and visitation of Petitioner and Respondent’s minor children and division of Petitioner and Respondent’s community property.” August 13, 1973 No hearing was held, no action was taken. October 25,1973 The Texas trial judge entered the following order, which is of particular interest in the case now before us: “On this the 25th day of October, 1973, it having been brought to the attention of the Court that Motions For New Trial have been filed herein on the 21st day of June, 1973, and the 2nd day of July, 1973, and it further appearing to the Court that such Motions have been on file herein for more than 45 days without any action having been taken thereon and are therefore overruled as a matter of law. “IT IS THEREFORE THE ORDER OF THIS COURT that all Motions For New Trial filed hereon are herein dismissed and the judgment heretofore entered is hereby reaffirmed.” (Emphasis supplied.) February 8, 1974 The Kansas case was tried. The trial court recognized the Texas divorce, but found that the Texas court had set aside the remainder of its judgment on July 19, 1973. The Kansas court then proceeded to divide the property of the parties, granted custody of the child to the wife, and fixed child support at $400 per month. January 29, 1979 The husband filed a motion in the Kansas case to set aside the judgment of February 8, 1974. June 29, 1979 The trial court (with a different judge presiding) heard evidence and took the matter under advisement, meanwhile restraining the wife from enforcing the 1974 order. Ultimately, the trial court filed a memorandum opinion in which it said in pertinent part: “On June 4, 1973, the Texas Court granted the divorce requested by L. W. Johnson, defendant herein, and the plaintiff there. The Texas Court specifically found that it had personal jurisdiction over both parties and over the subject matter. On the basis of its decision that there was proper jurisdiction, The Texas Court also adjudicated the issues of child support, child custody, property disposition, and attorneys fees. “On June 21,1973, Mary Johnson, the plaintiff herein, and the defendant in the Texas case, filed a motion for a new trial. The Court agreed to a rehearing only as to the issues of child support, child custody, and property disposition. The Texas Court set a hearing date but Mary Johnson, for whatever reason, failed to appear, leaving the Texas Court no alternative but to reaffirm its original judgment. On the basis of the Texas judgment, L. W. Johnson believed that all issues had been adjudicated. “Mary Johnson, in the meantime, continued on with the Kansas divorce proceeding, even though she was aware of the Texas proceedings, having retained Texas Counsel to represent her. “On February 8, 1974, Mary Johnson obtained a default divorce from L. W. Johnson in Wyandotte County, Kansas in this case. L. W. Johnson was not present nor was he represented by Counsel. I am sure the Wyandotte County Court was not aware of the Texas Court’s reaffirmation of its original judgment. “The situation that is causing the dispute herein is the great disparity that exists between the judgment obligation of the two divorce decrees. Mr. Johnson has, since its rendition, relied upon the Texas decree. Mrs. Johnson has in turn relied on the Kansas decree. Mr. Johnson has substantially complied with the terms of the Texas decree. However, under the relevant provision of the Kansas decree, Mr. Johnson is far behind in his obligation. “The issue as I perceive it is whether the Texas decree, in its entirety is entitled to full faith and credit here in Kansas. “Defendant contends that the Texas judgment was and is entitled to full faith and credit in Kansas and therefore the Kansas Court erred in allowing further litigation. I concur with the defendant’s contention. I cannot believe that Judge Moroney erred per se but I think he acted correctly based on the facts he had before him at the time. I believe he was unaware of the true procedural nature of the Texas judgment. Had he been cognizant of the finality of the Texas decree and Mrs. Johnson’s appearance there, he would have recognized that the Texas judgment was entitled to full faith and credit. “The question specifically before me is whether Kansas, based upon all the evidence I now have before me, is required to recognize the Texas decree as determining all matters relative to property, alimony, child support, and custody. I believe the Kansas Court is required to recognize the Texas judgment as dispositive. “In Kansas we have a statute which specifically speaks to the question before me. K.S.A. 60-1611 reads as follows: “ ‘Effect of a decree in another state. A judgment or decree of divorce rendered in any other state or territory of the United States, in conformity with the laws thereof, shall be given full faith and credit in this state; except, that in the event the defendant in such action, at the time of such judgment or decree, was a resident of this state and did not personally appear or defend the action in the court or such state or territory, and such court did not have jurisdiction over his or her person, all matters relating to alimony, and to the property rights of the parties, and to the custody and maintenance of the minor children of the parties, shall be subject to inquiry and determination in any proper action or proceeding brought in any courts of this state within two (2) years after the date of the foreign judgment or decree, to the same extent as though the foreign judgment or decree had not been rendered.’ (L. 1963, ch. 303, 60-1611; L. 1965, ch. 355 § 7; June 30.) “Under this law and relevant case law the portion of the Texas judgment granting the divorce is final and entitled to full faith and credit in Kansas. After the Texas decree was entered Mrs. Johnson’s action for divorce here in effect became a K.S.A. 60-1611 action for alimony, child support, and property division. “As K.S.A. 60-1611 clearly states Mrs. Johnson can maintain such an action only if she meets the conditions of the exception. Mrs. Johnson must have been a resident at the time of the Texas judgment. The record clearly indicates that she was. Mrs. Johnson must not have personally appeared or defended the action in Texas and the Texas Court must not have had jurisdiction over her. In my opinion, although Mrs. Johnson did not ‘personally’ appear in Texas she did retain Texas Counsel to defend her in the action. Mrs. Johnson submitted to the Texas jurisdiction both before and after the entry of judgment. She sought affirmative relief there in asking for attorneys fees to pay for the Texas attorneys she had retained to defend her. That request was granted in the final Texas decree. Mrs. Johnson also requested a new trial on all issues except the termination of the marriage relationship itself. The Texas Court agreed to hear the motion but for whatever reason Mrs. Johnson decided not to follow through, the Texas Court found that it had personal jurisdiction over Mrs. Johnson. The Court, therefore, had no other alternative after Mrs. Johnson failed to appear but to reaffirm its original judgment. The Texas judgment was reinstated and became final. Only after that did Mrs. Johnson obtain a default judgment in Kansas with substantially different and additional awards. “Clearly, Mrs. Johnson did not comply with the requirements in K.S.A. 60-1611 and therefore could not properly maintain such action in Kansas. Mrs. Johnson by and through her Texas Counsel submitted herself to the jurisdiction of the Texas Court. She requested affirmative relief and moreover she accepted the benefits of the Texas judgment such as child custody, child support, attorneys fees, possession and use of the marital home. “Since Mrs. Johnson did not comply with the provisions of K.S.A. 60-1611 the Texas judgment is entitled to full faith and credit in Kansas. Mrs. Johnson never contested the Texas decree and never informed the Kansas Court of the final judgment rendered. I feel that had Judge Moroney been able to view the entire record he would have dismissed the Kansas proceeding. It is well recognized that an action for alimony and property division may be maintained in Kansas even though a divorce may have been granted in another state so long as the requirements of K.S.A. 60-1611 are met. Kendall v. Kendall 224 Kan. 624, 585 P.2d 978 (my emphasis). In this case Mrs. Johnson simply did not meet those requirements. “On the basis of the entire record and proceedings I find that the Texas Court did have personal jurisdiction over Mrs. Johnson and the Kansas Court did not have jurisdiction pursuant to K.S.A. 60-1611. The Texas decree is valid in its entirety and is entitled to full faith and credit. Defendant’s motion to set aside the Kansas judgment is sustained.” Plaintiff appealed. The majority opinion of the Court of Appeals held that the Texas court’s order of October 25, 1973, was a part of the record of that court on February 8, 1974, and “could surely have been offered as evidence” in the Kansas trial. It concluded that the Texas court’s order of October 25, 1973, was, as plaintiff characterizes it, a mere “housecleaning” order disposing of the motions for new trial and reaffirming not the original judgment of June 4, 1973, but reaffirming the order of July 19, 1973, setting it aside. We granted review. Before proceeding, we note that documents which were not before the trial judge in this case have been provided in the briefs for each of the parties, one document by the plaintiff and one document by the defendant. Since this evidence was not before the trial judge, we decline to consider it here. The defendant did not appear before the trial court when the Kansas divorce case came on for final hearing on February 8, 1974; plaintiff appeared in person and by counsel. At the hearing of defendant’s motion to set aside the February 8 judgment, the plaintiff testified that the last letters that she received from her Texas lawyers were written in August, 1973, and that she did not know anything about the order of the Texas court entered on October 25,1973. There is no evidence in the record that the trial judge, on February 8, 1974, was provided with a copy of the Texas court’s final order of October 25, 1973. Let us review the Texas proceedings. The petition was filed by L. W. Johnson on January 4, 1973. Mrs. Johnson was served personally in Wyandotte County, Kansas. Thereafter, through Texas counsel, she filed an answer objecting to the jurisdiction of the court. That answer asserted that both parties were nonresidents of Texas and in fact resided in Kansas; that the child was living in Kansas with Mrs. Johnson; and that the trial court had no jurisdiction over the parties, their child, or their property. A few days thereafter, however, Mrs. Johnson, pro se, filed a motion for allowance of attorney fees, reciting that Mr. Johnson' was an officer in the United States Army with substantial take-home pay, that Mrs. Johnson was maintaining a home in Kansas for herself and their minor child, and that she was unable to pay those expenses and also to pay attorney fees. Rule 120a of the Texas Rules of Civil Procedure provides in relevant part that: “[A] special appearance may be made by any party ... for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant ... A special appearance may be made as to an entire proceeding or as to any severable claim involved therein. Such special appearance shall be made by sworn motion filed prior to plea of privilege or any other plea, pleading or motion .... Every appearance, prior to judgment, not in compliance with this rule is a general appearance.” (Emphasis supplied.) The motion for attorney fees was unsworn, was not made in compliance with Texas Rule 120a quoted above, and irrespective of Mrs. Johnson’s intentions, constituted a general appearance. See Toler v. Travis County Child Welfare Unit, 520 S.W.2d 834, 836 (Tex. Civ. App. 1975). Thus, when the Texas court heard the matter on June 4, 1973, and granted relief, it had personal jurisdiction over the parties. Later, in June and July, 1973, Mrs. Johnson filed motions for a new trial or in the alternative to set aside the judgment. On July 19,1973, the trial judge set aside his order of June 4 relating to division of property, child custody, child support, and visitation, and ordered that a further hearing he held on August 13 on those issues. The parties failed to appear as directed and no hearing was held. Finally, on October 25, no action having been taken on the motions for new trial or to set aside the judgment, the judge overruled and dismissed the motions for new trial and reaffirmed “the judgment heretofore entered.” The judgment was entered on June 4; the order of July 19 set that judgment aside, or partially set it aside, and ordered a further hearing on August 13 — a date already past at the time of the October order. The only judgment which could then be reaffirmed was the judgment entered on June 4, 1973. We agree with the trial court that the Texas court intended to and did reinstate its judgment of June 4, 1973. This disposed of all the matters at issue in the Kansas proceeding. A judgment of divorce, including ancillary relief, rendered in conformity with the laws of one of our sister states, is entitled to full faith and credit in this state where the court granting the judgment had personal jurisdiction over the parties and subject matter of the action. Such is the situation now before us, as disclosed by this record. We agree with the well-reasoned opinion of the trial judge which held that Mrs. Johnson did not meet the conditions of the exception stated in K.S.A. 60-1611. She personally appeared in and defended the Texas action; she sought and was granted affirmative relief therein; and the Texas court had personal jurisdiction over her at the time it entered its judgment and decree. The Texas judgment is entitled to full faith and credit in this state. The Kansas judgment, entered thereafter, should be set aside. The judgment of the Court of Appeals is reversed, and the judgment of the Wyandotte District Court is affirmed.
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The opinion of the court was delivered by Herd, J.: This is a certified question from the United States District Court for the District of Kansas, Honorable Patrick F. Kelly, judge. The question arises from an actual controversy between the parties. The facts are undisputed. In October of 1980, employees of Multi-Media Cablevision, a South Carolina corporation, were working on the campus of Central College in McPherson. In the course of their employment, they removed a manhole cover. While the cover was displaced Bruce Kline, president of the college, rode by the work site on his bicycle. His bicycle hit the open manhole, throwing Kline violently forward over the handlebars. As a result he suffered injuries, including a broken shoulder. Bruce Kline filed suit against Multi-Media in the McPherson County District Court in April of 1981. The Multi-Media employees and agents were not sued. The petition alleged in part “the failure to replace the cover on the open manhole, failure to warn that the cover was removed and failure to erect a barricade or barrier or to otherwise use safety devices around the open manhole” supported a claim for compensatory and punitive damages. Multi-Media removed the case to federal court in May of 1982. After discovery, Multi-Media filed a motion for summary judgment on the punitive damages issue. Pursuant to authority of K.S.A. 1982 Supp. 60-3201, Judge Kelly certified the following question to this court: “Under Kansas law, may a corporation be held liable for punitive damages arising from an act of an agent or employee, within the scope of the agent’s or employee’s employment, when the corporation, through its board of directors or an officer, has neither directed, authorized nor ratified the act?” The issue presented is thus clearly drawn. As a preliminary matter let us consider two well-established legal doctrines pertinent in this case. First, a corporation is liable for the torts of its agent when committed within the scope of the agent’s authority and course of employment even though it did not authorize or ratify the tortious acts. Russell v. American Rock Crusher Co., 181 Kan. 891, 894, 317 P.2d 847 (1957). A related rule of law states a principal is responsible for the torts of its agent where the tortious acts are incidental to and in furtherance of the principal’s business, even though outside the scope of the agent’s authority. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 520 P.2d 1296 (1974). Second, punitive damages are appropriate when the elements of fraud, malice, gross negligence or oppression accompany the wrongful act. Such damages are awarded to punish the wrongdoer for his malicious, vindictive, willful or wanton invasion of the injured person’s rights. They also serve as an example to restrain and deter others from the commission of such wrongs. Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 63, 643 P.2d 100 (1982); Newton v. Hornblower, Inc., 224 Kan. 506, 525, 582 P.2d 1136 (1978). The question presented here is when may a corporation be held liable for punitive damages for the wrongful acts of its employees committed within the course of their employment? There are two possible answers. First, as Mr. Kline argues, a corporation could be held liable for punitive damages whenever the employee, acting within the scope of employment, could be held liable. In other words: “[I]f the servant has committed a tort within the scope of his employment so as to render the corporation liable for compensatory damages, and if the servant’s act is such as to render him liable for punitive damages, then the corporation is likewise liable for punitive damages.” Stroud v. Denny’s Restaurant, 271 Or. 430, 435, 532 P.2d 790 (1975). This is the “vicarious liability” rule and is followed by a majority of the courts. Prosser, Law of Torts § 2, p. 12 (4th ed. 1971). The vicarious liability rule is focused on the deterrence aspect of punitive damages. The theory is such a rule will encourage employers to exercise closer control over their employees and thereby reduce the probability of the occurrence of torts which would support a punitive damages award. Prosser, Law of Torts § 2, p. 12. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 291, 294 N.W.2d 437 (1980). Plaintiff argues Kansas follows this rule. See Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350, 13 Pac. 609 (1887). The second possible answer to the question is that a corporation might be held liable for punitive damages resulting from acts of its employees only when it has directed or ratified those acts. The Restatement (Second) of Torts § 909 (1977), embodies this position: “Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, “(a) the principal or a managerial agent authorized the doing and the manner of the act, or “(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or “(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or “(d) the principal or a managerial agent of the principal ratified or approved the act.” See also Restatement (Second) of Agency § 217C (1957). This is called the “complicity” rule. See Morris, Punitive Damages in Personal Injury Cases, 21 Ohio St. L.J. 216, 221 (1960). It focuses on the first reason for the award of punitive damages — punishment of the wrongdoer. The rule recognizes that ordinarily it is improper to impose the burden of punitive damages on one who is innocent of wrongdoing. Restatement (Second) of Torts § 909 comment b (1977). The complicity rule is followed by a “considerable minority” of jurisdictions. Prosser, Law of Torts § 2, p. 12 (4th ed. 1971). Mr. Kline argues Kansas is already committed to the vicarious liability rule because of this court’s holding in Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350. In that case Wheeler and Wilson sold a sewing machine to Boyce’s wife. Claiming Mrs. Boyce had not paid the balance due on the machine the company directed its general agent to bring an action of replevin against Mrs. Boyce to recover the machine. Authorities were unable to find the sewing machine so Wheeler and Wilson’s general agent directed the filing of an affidavit stating Boyce had the machine and would not surrender it. This was done and, consistent with the law of the day, Mr. Boyce was arrested. He was kept in jail for ten days. The replevin action resulted in a judgment for Mrs. Boyce. Mr. Boyce then filed an action for false imprisonment and a jury awarded him $1,000. One of the issues on appeal was the propriety of an instruction directing the jury it could award punitive damages against the corporation. In holding such an instruction was proper under the facts of the case the court stated: “It is a well-established principle of jurisprudence, that corporations may be held liable for torts involving a wrong intention such as false imprisonment, and exemplary damages may be recovered against them for the wrongful acts of their servants and agents done in the course of their employment, in all cases and to the same extent that natural persons committing like wrongs would be held liable. In such cases the malice and fraud of the authorized agents are imputable to the corporations for which they acted. This principle is too well settled to require argument, and the authorities sustaining it are numerous and well-nigh unanimous.” 36 Kan. at 353. Multi-Media argues Wheeler <b Wilson is distinguishable because that case involved false imprisonment, an intentional tort. Here, on the other hand, the employees were guilty of at most gross negligence. Thus, Multi-Media claims, Kansas follows the vicarious liability rule only in cases based on intentional torts. Wilson ér Wheeler is indeed a false imprisonment case. If limited to its facts it applies only to intentional torts. In addition, it was decided in 1887 and has never been specifically approved or overruled. Thus we conclude Wilson <Lr Wheeler is not authority for either the vicarious or complicity rule of corporate liability. As such this court is free to adopt whichever rule it deems appropriate in response to this certified question. As previously stated the virtue of the vicarious liability rule is deterrence. Theoretically a corporation, in fear of a punitive damages award against it, will exercise stricter control over its employees thereby preventing the occurrence of future wrongful acts. Arguably this is true. In this case it could be speculated if Multi-Media had been fearful of a punitive damage award and thereby supervised its employees more closely the accident might never have happened. On the other hand, there are certainly some instances in which no amount of supervision and control will prevent an employee from engaging in wrongful conduct. Further, it is conceivable that corporate liability for compensatory damages for the acts of its employees provides a sufficient impetus to insure adequate supervision of its employees. As was stated in Morris, Punitive Damages in Tort Cases, 44 Harv. L. Rev. 1173, 1200 (1931): “The operation of the doctrine of punitive damages gives the plaintiff an undeserved windfall that has nothing to do with the reparative function, which is duly served (at least in theory) by the allowance of compensatory damages.” Regarding the other purpose behind punitive damages, a punitive damages award against a corporation in all cases where the employee’s conduct would support such an award does little to assure the wrongdoer will always be punished. It can be argued the corporation acts only through its agent and, as such, the corporate entity is the-wrongdoer. Prosser, Law of Torts § 2, p. 12 (4th ed. 1971). In reality, however, a line must be drawn. In some cases the corporation will be as guilty as the employee; in others it will be completely innocent. The vicarious liability rule does not distinguish these cases. Alternatively the complicity rule as set out in the Restatement serves well both theoretical justifications for awarding punitive damages. First, it furthers the deterrence theory by putting the corporation on notice that if (1) a managerial agent authorizes, approves or ratifies the act, (2) the act is performed by a managerial employee acting within the scope of employment, or (3) the corporation or a managerial employee was reckless in employing or retaining the acting employee, the corporation may be liable for punitive damages. This should cause the corporation to exercise stricter control over its employees. The real advantage of the complicity rule as set out in the Restatement, however, is that it provides for a determination of whether the corporation is actually blameworthy before awarding damages. As Morris, Punitive Damages in Tort (Jases, has noted: “Of course, -when the master is himself a wrongdoer, and hás used his servants in the commission of his wrong, the allowance of punitive damages against him serves the admonitory function, and the fact that he has used his servants is of no particular significance. But, as a general rule, an innocent person is not held liable in punitive damages for the wrong of another, even though he may be required to compensate for such an injury. If the master has not been at fault, he should be within the operation of this general rule, or some reason must be found for making an exception.” 44 Harv. L. Rev. at 1200. Finally, the Restatement rule offers more flexibility than some other forms of the complicity rule. For example, Multi-Media argues a corporation may be held liable for punitive damages only when its officers or directors authorize, ratify or direct the employee’s wrongful conduct. See Roginsky v. RichardsonMerrell, Inc., 378 F.2d 832, 842 (2d Cir. 1967). See also Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 853, 606 P.2d 944 (1980), where it was stated “punitive damages may not be assessed against a principal based on the acts of an agent absent a clear showing that the agent had managerial status or that the principal ordered or ratified the acts in question.” The Restatement rule, however, does not limit the liability of a corporation as severely as Multi-Media would prefer. It allows the factfinder to consider the actions of the corporation or its managerial agents peculiar to the case. For example, here Multi-Media could arguably be liable if it was reckless in the training of its employees regarding safety precautions. The utility of the Restatement rule can also be seen by applying it to the Wheeler h- Wilson case. There, since the wrongful acts were done by the corporation’s general agent the company was properly liable for any punitive damages. In the end the Restatement rule, while not severely limiting corporate liability, does provide the basis for a fairer result by requiring an examination of the particular facts in each case. We hereby adopt the complicity rule set out in the Restatement (Second) of Torts § 909 (1977). Although couched in terms of master’s and principal’s liability for punitive damages arising out of acts of servants and agents, the rules are equally applicable to corporations. Thus we answer the certified question. A corporation is not liable for punitive damages for an employee’s tortious acts committed within the scope of his employment unless (a) the 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 in the scope of employment; or (d) the corporation or its managerial agent ratified or approved the act of the employee.
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The opinion of the court was delivered by Schroeder, C.J.: This is a malicious prosecution action in which Jack R. Hunt and Construction and Development, Inc. (defendants-appellants), appeal a jury award for actual and punitive damages entered against them and in favor of Sherman H. Sampson (plaintiff-appellee). The appellants contend the trial court erred in (1) directing verdicts in favor of the plaintiff on the issues of whether the appellants had probable cause to file the previous lawsuits, and whether Jack R. Hunt was the alter ego of Construction and Development, Inc.; (2) ruling there was sufficient evidence to support the award of actual damages; and (3) ruling the amount of punitive damages was not excessive. This lawsuit is the culmination of a long history of business association and litigation between the plaintiff and defendants. In 1960 or 1961 the plaintiff and defendant Hunt became business partners and formed Construction and Development, Inc. (C & D). They were also partners in several other business projects, including Bonanza, Inc., which owned the Sweetbriar Shopping Center in Wichita. In 1970 Hunt and Sampson agreed to separate their joint business interests. Hunt became the sole owner of C & D. Hunt also purchased Sampson’s interest in Bonanza, Inc., and the Sweetbriar Shopping Center. Prior to this time C & D had entered into a contract with Seneca Square, Inc., to construct an addition to the Seneca Square Shopping Center in Wichita, which was owned by Seneca Square, Inc. Seneca Square, Inc., was wholly owned by Western Land and Development, Inc. (Western). Due to problems encountered during construction, it became necessary for Seneca Square, Inc., to arrange additional financing so the project could be completed. The Fourth National Bank and Trust Company in Wichita was unwilling to advance additional financing unless the indebtedness could be personally guaranteed by financially responsible people. Frank Malone, a stockholder in Western and Seneca Square, Inc., asked Hunt to approach Sampson about the possibility of these three individuals personally guaranteeing the note for Seneca Square, Inc. Sampson agreed, and in exchange for their participation, Hunt and Sampson each received one-third of Malone’s stock in Western. In addition, Malone, Sampson and Hunt entered into an indemnity agreement wherein they each assumed equal liability (one-third) of any indebtedness owed by Seneca Square, Inc. F or its work on the project C & D received a promissory note from Seneca Square, Inc., in the amount of $50,000. This note was personally guaranteed by Sampson, Malone and Hunt to enable C & D to pledge it as collateral for other loans. In 1971, Sampson, Malone and Seneca Square, Inc., in three separate lawsuits, sued Hunt and C & D for fraud, misrepresentation and breach of fiduciary duty arising out of the financing of the Seneca Square project. C & D filed a counterclaim against the plaintiff for collection of the $50,000 promissory note. These actions were consolidated for trial and eventually resulted in a stalemate, with judgment denied on all claims of the parties. In denying judgment to C & D on the promissory note the trial court ruled: “The note given to Construction and Development, Inc., by Seneca Square, Inc., for $50,000 is a valid, legal obligation of the plaintiff, Seneca Square, Inc.; endorsements and guarantees of the plaintiffs, Sampson and Malone, were made with consideration; and further, the note in question is covered by the terms of the so-called ‘Indemnity Agreement’ of July, 1970.” In addition the trial court made the following specific finding of fact: “The plaintiffs, Sampson and Malone, and the defendant, Hunt, jointly and severally, endorsed and guaranteed payment to the Fourth National Bank and Trust Company, Wichita, Kansas on behalf of Seneca Square, Inc. but the maximum amount that such endorsements and guarantees reached was $2,200,000.00. That at the present time there is still due and payable to the Fourth National Bank a sum of around $15,000.00. That all three of the above-named parties have paid their proportionate share of the amounts of such debts. The defendant, Hunt, is responsible for the $15,000.00.” (Emphasis added.) During the course of discovery in the Seneca Square case, Sampson learned that Hunt had withheld information and made misrepresentations concerning the financial situation of Bonanza, Inc., when Hunt purchased Sampson’s interest in that enterprise. Sampson and other family members who had owned shares of Bonanza, Inc., commenced a second lawsuit against Hunt while the Seneca Square case was pending, alleging fraud and breach of fiduciary duty. Sampson and his family were awarded a judgment against Hunt in the amount of $93,000. This case was appealed by Hunt to the Supreme Court and affirmed in Sampson v. Hunt, 222 Kan. 268, 564 P.2d 489 (1977). Sampson ultimately collected approximately $120,000 from Hunt on the judgment and accumulated interest. In November 1973, while the Bonanza, Inc., lawsuit was pending, the Fourth National Bank and Trust Company of Wichita filed a lawsuit against Malone, Sampson and Hunt to collect the balance of $15,000 due on a promissory note guaranteed by them in connection with the Seneca Square project. This was the same $15,000 found by the court in the Seneca Square case to be owed by Hunt. Hunt filed a cross-claim against Sampson and Malone, as sole owner of C <b D, to collect under the indemnity agreement on the $50,000 promissory note given by Seneca Square, Inc., to C & D. Hunt alleged in his cross-petition that the promissory note was pledged as security for a bank loan with People’s State Bank of McPherson which was used in furtherance of the Seneca Square project. Hunt subsequently was required to make payments of over $30,000 in principal and interest on the note. Hunt sought indemnification from Malone and Sampson as personal guarantors on the note, pursuant to the indemnification agreement. C & D was not a party in the Fourth National Bank case. Eventually Hunt paid the balance due on the Fourth National Bank note and all claims in the case were dismissed with prejudice on March 29, 1974, including Hunt’s cross-claim on the $50,000 promissory note. The present action is the result of two lawsuits filed on December 31, 1975. In the first lawsuit, entitled Construction and Development, Inc. v. Seneca Square, Inc., Frank A. Malone and Sherman H. Sampson, case No. C35451 (Note Case), C & D sought to collect on the $50,000 promissory note from the named defendant. Malone and Sampson were subsequently dismissed from the case on the ground that the claim on the promissory note had previously been filed against them and dismissed with prejudice in the Fourth National Bank case, constituting res judicata. The order of dismissal was appealed by defendant Hunt, but was subsequently dismissed. The second lawsuit, Jack R. Hunt v. Seneca Square, Inc., Western Land & Development, Inc., Frank A. Malone and Sherman H. Sampson, case No. C35452 (Bank Case), arose out of a dispute over a lease agreement entered into between Seneca Square, Inc., and one of the tenants of the Seneca Square Shopping Center on January 4, 1974. At that time Hunt, Sampson and Malone were stockholders and directors of Western and Seneca Square, Inc. The new lease agreement provided for an advance rental payment of approximately $111,000. This money was used to pay off outstanding notes owed by Seneca Square, Inc., totaling over $100,000. These notes were personally guaranteed by Sampson, Hunt and Malone. Hunt opposed ratification of the new lease agreement because he felt it would be in violation of the mortgage agreement with the first mortgage holder on the shopping center and would trigger a foreclosure on the property, the sole asset of Seneca Square, Inc. Due to financial difficulties encountered by Seneca Square, Inc., a majority of the directors voted in July 1974, not to make the mortgage payment on the property and instead to pay all other outstanding indebtedness owed by Seneca Square, Inc., including obligations personally guaranteed by stockholders of the company. Subsequently, in August 1974, the mortgage holder instituted foreclosure proceedings against the property. The shopping center property was ultimately assigned to the mortgagee in lieu of foreclosure. The defendant Hunt brought the lawsuit against Malone and Sampson, as majority stockholders of Western, alleging fraud and breach of fiduciary duty in executing the new lease agreement, resulting in foreclosure and the loss of his investment in the property in the amount of $111,000. Hunt subsequently repurchased the property for the mortgagee, and in October 1977, almost two years after the suit was filed, he dismissed the action against Malone and Sampson. Hunt testified he dismissed the action because he felt it was time to “extend the olive branch” and bring the disputes between him and Sampson to an end. The case at bar was instituted by the plaintiff in July 1978, against defendants Hunt and C & D, alleging that defendant Hunt was the alter ego of C & D and that both the Note Case and Bank Case were brought maliciously and without probable cause. The plaintiff sought actual damages in the amount of $10,000 and punitive damages of $1,000,000 for each alleged maliciously prosecuted case. After hearing evidence by both sides the trial court granted directed verdicts in favor of the plaintiff on four issues, ruling as a matter of law: (1) defendant Hunt was the alter ego of defendant Construction and Development, Inc.; (2) defendants Hunt and C & D did not have probable cause to bring the lawsuit in the Note Case; (3) defendant Hunt did not have probable cause to bring the lawsuit in the Bank Case; and (4) both cases terminated in favor of the plaintiff. The jury was instructed accordingly and returned a verdict in favor of the plaintiff in the amount of $10,000 actual and $300,000 punitive damages for each maliciously prosecuted case. The trial court denied the defendants’ motion for new trial and remittitur of damages. This appeal has been duly perfected. The appellants first contend the trial court erred in sustaining the appellee’s motions for directed verdict on the issues of probable cause and whether defendant Hunt was the alter ego of C & D. The appellants do not challenge the ruling of the trial court that the two previous lawsuits terminated in favor of the plaintiff. 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 directed verdict. Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977); Lemley v. Penner, 230 Kan. 25, 27, 630 P.2d 1086 (1981). The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury. Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, Syl. ¶ 3, 495 P.2d 930 (1972). Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. Thurman v. Cundiff, 2 Kan. App. 2d 406, 411, 580 P.2d 893 (1978); Southards v. Central Plains Ins. Co., 201 Kan. 499, 505, 441 P.2d 808 (1968); Kemp v. Railway Co., 91 Kan. 477, 483, 138 Pac. 621 (1914). We will first consider the appellants’ claim the trial court erred in directing a verdict in favor of the plaintiff on the alter ego issue. This issue was listed in the pretrial order as a question of law to be determined by the trial court. When a pretrial order is entered by the trial court pursuant to K.S.A. 60-216, it has the full force and effect of other orders of the court and controls the subsequent course of trial unless modified to prevent manifest injustice. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 468, 657 P.2d 517 (1983), and cases cited therein. In Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 442, 581 P.2d 372 (1978), we held the trial court’s refusal to give an instruction on right-of-way was correct where the right-of-way was not specifically made an issue in the pretrial order. K.S.A. 60-216 provides in part: “In any action, the court shall on the request of either party, or may in its discretion without such request, direct the attorneys for the parties to appear before it for a conference to consider: “(2) The trial of issues of law the determination of which may eliminate or affect the trial of issues of fact.” The appellants here made no attempt to modify the pretrial order. It follows that the order controls the subsequent course of the litigation. The trial court’s refusal to submit the alter ego issue to the jury for consideration and its determination of the issue on the motion for a directed verdict was not error. The court’s ruling that Hunt was acting as the alter ego of C & D is supported by the evidence. The doctrine of alter ego is used to impose liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business. Such liability arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under it the court merely disregards the corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation. Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 797, 473 P.2d 33 (1970). In Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 594, 567 P.2d 1337 (1977), the following factors were considered significant in justifying a disregard of the corporate entity: “(1) Undercapitalization of a one-man corporation, (2) failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) nonfunctioning of other officers or directors, (6) absence of corporate records, (7) the use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) the use of the corporate entity in promoting injustice or fraud.” Mere single ownership of a corporation is not sufficient in itself to treat the corporation as an alter ego of the owner and justify a disregard of the corporate veil. 222 Kan. at 594; Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, Syl. ¶ 6. Each case involving disregard of the corporate entity must rest upon its special facts. 18 Am. Jur. 2d, Corporations § 15. Finally, power to pierce the corporate Veil is to be exercised reluctantly and cautiously. Amoco Chemicals Corporation v. Bach, 222 Kan. at 593. In recent years this court has upheld the alter ego finding of the trial court in two cases. In Kirk v. H.G.P. Corporation, Inc., 208 Kan. 777, 780, 494 P.2d 1087 (1972), the defendant corporation was found to be a tool by which the defendant conducted his own business where he was the principal stockholder, officer and manager of the corporation; principal creditor; principal receiver of assets of the corporation; principal worker and principal transferee of all funds secured by the corporation. In Kilpatrick Bros., Inc. v. Poynter, 205 Kan. at 797-98, the court pierced the corporate veil of three successive corporations and held the defendant liable for the debts of the corporations where the corporations were undercapitalized, the defendant provided what little capital there was, each corporation occupied the same building and manufactured the same general product, when each corporation ceased functioning its assets were transferred to the successor corporation, and when the third corporation ceased activities its assets were sold and the proceeds used to pay on a bank loan personally guaranteed by the defendant. In addition, the defendant was an officer in all the corporations, set the policies and made all final decisions. No board of directors’ meetings were held and corporate reporting was largely disregarded. In the present case the facts surrounding Hunt’s management, ownership and control of C & D are largely undisputed. Hunt testified at trial he is the sole stockholder, president and director of C & D. He stated that he “controls” the company. C & D has done no business since the Seneca Square project was completed. The corporation has filed annual reports and tax returns each year. The defendant testified he has kept the corporation in good standing with the State of Kansas because it has a general contractor’s license which he may want or need to use at some future time to again become active in the construction business. Money needed by the corporation to file its annual report has been contributed by Hunt. Hunt testified the value of the company is zero and its only assets consist of the contractor’s license, a checkbook and a minutes book. He also testified he personally had to pay off bank loans borrowed by C & D during its involvement in the Seneca Square project. A significant factor for consideration is the cross-claim filed in the Fourth National Bank case by Hunt, as sole owner of C & D, to collect from Malone and Sampson two-thirds of the $50,000 note given by Seneca Square, Inc., to C & D. Hunt’s cross-petition in that case alleged the note was pledged by C & D as collateral for a loan with People’s State Bank of McPherson. The proceeds of the loan were used in furtherance of the Seneca Square project to the benefit of Seneca Square, Inc. Hunt, as one of the personal guarantors of the note, was subsequently required to pay over $30,000 in principal and interest on the loan. Hunt alleged that under the indemnity agreement Sampson and Malone each owed him one-third of the $50,000 principal of the note owed to C <Lr D. The appellee contends Hunt was acting for C & D and was merely asserting C & D’s right to collection of the note. The appellants, on the other hand, contend Hunt was merely attempting to enforce his personal right to indemnification from Malone and Sampson for the amount he was required to pay as guarantor of the note. The appellants’ position is largely discredited in view of the fact the cross-petition asserted a claim for two-thirds of the entire amount of the principal owed to C & D on the note, rather than for two-thirds of the amount paid by Hunt as guarantor, which is all that would have been owed by Malone and Sampson to Hunt personally under the indemnity agreement. For all practical purposes, Hunt’s claim was asserted on behalf of C & D for payment of the $50,000 promissory note owed C & D by Seneca Square, Inc. At the time the Note Case was filed the defendant corporation was essentially defunct. It had not done any business for several years. It had no assets of any monetary value. It was kept alive by the defendant Hunt solely to retain its general contractor’s license in case Hunt should ever desire to return to the construction business. There were not other owners, directors or officers of the corporation. Hunt himself testified he controlled the operation of the corporation. The corporation was not merely undercapitalized; it had no capitalization. Hunt contributed all money to the corporation which was necessary to keep it in good standing. The appellants contend Hunt did not utilize C & D as his own personal business conduit and did not treat income of C & D as his own. This is not surprising in light of the fact C & D did no business and had no income in the years in question. As discussed above, however, Hunt acted on behalf of C & D in the Fourth National Bank case, in seeking to enforce C & D’s right to payment on the $50,000 promissory note. The trial court properly concluded no reasonable juror could disagree that Hunt was the alter ego of Construction and Development, Inc. The appellants next contend the trial court erred in ruling as a matter of law there was no probable cause for the appellants to bring the two previous actions. In Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980), we set forth the following elements a plaintiff must prove to maintain an action for malicious prosecution: “(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff. “(b) That the defendant in so doing acted without probable cause. “(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based. “(d) That the proceeding terminated in favor of plaintiff. “(e) That the plaintiff sustained damages.” Concerning the element of probable cause we said: “Probable cause for instituting a proceeding exists when there is a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent man in the belief that the party committed the act of which he is complaining. [Citations omitted.] In cases of malicious prosecution, the inquiry as to want of probable cause is limited to the facts and circumstances as they appeared to defendant at the time the prosecution was commenced. [Citations omitted.] If the facts are undisputed, the question of probable cause is one for the court to decide as a matter of law. [Citations omitted.] If the facts tending to establish the existence or want of existence of probable cause are in dispute, it becomes the duty of the trial court to submit the question to the jury.” 227 Kan. at 277-78. See also 52 Am. Jur. 2d, Malicious Prosecution § 51; Prosser, Law of Torts § 119, pp. 841-47 (4th ed. 1971); Restatement (Second) of Torts § 675 (1977). Did the trial court err in ruling as a matter of law the defendant Hunt and C & D did not have probable cause to bring the case to collect on the promissory note? The trial court in that case ruled the dismissal of Hunt’s cross-claim in the Fourth National Rank case was res judicata and barred C & D’s right to maintain an action on the same claim. That determination was not appealed and is not an issue before this court. The appellee contends the finding of res judicata is tantamount to lack of probable cause as a matter of law and therefore the trial court did not err. The appellants, on the other hand, argue that at the time the action was filed it did not appear res judicata would apply because C & D was not a party to the Fourth National Bank case and Hunt was asserting a claim in his own right under the indemnity agreement. They contend the Note Case was the first attempt by C & D to collect on the note since acquiring title after the Seneca Square case where it was adjudged to be a valid, binding obligation of the guarantors and covered by the idemnity agreement. A termination of civil proceedings by a competent tribunal adverse to the person initiating them is not conclusive evidence they were brought without probable case. Restatement (Second) of Torts § 675, comment b; Prosser, Law of Torts § 120, p. 855; Stohr v. Donahue, 215 Kan. 528, 529, 527 P.2d 983 (1974); 52 Am. Jur. 2d, Malicious Prosecution § 163. As stated in the comments following the Restatement (Second) of Torts § 675: “e. Mistake of Law. ... In determining probable cause for initiation of civil proceedings, all that is necessary is that the claimant reasonably believe that there is a sound chance that his claim may be held legally valid upon adjudication. “/. If the legal validity of a claim is uncertain, the person who initiates the civil proceeding may believe that his claim is meritorious, but he can have no more than an opinion that the chances are good that the court might decide to uphold it. The question -is not whether he is correct in believing that the court would sustain the claim, but whether his opinion that there was a sound chance that the claim might be sustained was a reasonable one.” See also 52 Am. Jur. 2d, Malicious Prosecution § 55. For res judicata to apply the claim or cause asserted in the actions must be identical and the parties involved must be the same or in privity with one another. Wells v. Davis, 226 Kan. 586, 589-90, 603 P.2d 180 (1979). Hunt, as sole owner of C & D, was in complete privity with C & D when he asserted its right to payment of the $50,000 note from Malone and Sampson in the Fourth National Bank case. This same claim was asserted by C & D in the Note Case. Under the circumstances presented here the appellants had no reasonable ground to believe a legitimate cause of action existed on behalf of C & D for payment of the $50,000 note at the time the Note Case was filed. The dismissal of the claim with prejudice in the Fourth National Bank case was res judicata and barred a subsequent action by C & D against Malone and Sampson for payment on the note. The trial court properly ruled as a matter of law the appellants did not have probable cause to bring the action in the Note Case. The next point is whether the trial court erred in ruling as a matter of law defendant Hunt did not have probable cause to bring the action against Sampson for fraud and breach of fiduciary duty in the Bank case. The basis of this action was the lease agreement entered into between Seneca Square, Inc., and one of the tenants of the shopping center over Hunt’s objection and because funds were diverted from the mortgagee to pay off personal obligations of the stockholders of Seneca Square, Inc., including those of Hunt. These actions resulted in foreclosure on the property. In Newton v. Hornblower, Inc., 224 Kan. 506, Syl. ¶¶ 8, 9, 582 P.2d 1136 (1978), we stated: “Officers and directors of a corporation occupy a strict fiduciary relationship with respect to both the corporation and its shareholders. The same fiduciary standard applies as between directors. “Any unfair transaction undertaken by one in a fiduciary relationship may result in liability for unjust enrichment of the fiduciary. Where the fairness of a fiduciary transaction is challenged, the burden of proof is upon the fiduciary to prove by clear and satisfactory evidence that such transaction was fair and done in good faith.” See also Sampson v. Hunt, 222 Kan. at 271; Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 259-60, 531 P.2d 428 (1975); 19 Am. Jur. 2d, Corporations § 1272. A strict fiduciary duty is imposed on officers and directors of a corporation to act in the best interest of the corporation and the stockholders. The duty imposed by this position of trust requires an officer or director to work for the general interests of the corporation. Newton v. Hornblower, Inc., 224 Kan. at 514; Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, Syl. ¶ 2, 531 P.2d 428 (1975); 18 Am. Jur. 2d, Corporations § 497. The standard of duty by which the conduct of a director of a corporation is to be judged should be that measure of attention, care, and ability which the ordinary director and officer of corporations of a similar kind would be reasonably and properly expected to bestow upon the affairs of the corporation. Speer v. Dighton Grain, Inc., 229 Kan. 272, 276, 624 P.2d 952 (1981). Directors and officers are liable to the corporation and the stockholders for losses resulting from their malfeasance, misfeasance or their failure or neglect to discharge the duties imposed by their offices. 229 Kan. 272, Syl. ¶ 8. The directors have the power to control and direct the affairs of the corporation, and in the absence of fraud, courts will generally not interfere on behalf of a dissatisfied stockholder with the discretion of the directors on questions of corporate management, policy or business. 19 Am. Jur. 2d, Corporations §533. Applying these rules to the facts of this case no evidence appeared in the record from which it could reasonably be concluded that Hunt had probable cause to bring an action against Sampson and others for breach of fiduciary duty owed Western’s minority stockholders. Hunt testified he participated in the negotiations with the tenant for the new lease. He was aware at all times that negotiations were underway for a new lease; however, he testified he did not participate in the ultimate lease agreement and did not ratify the new lease. He was not aware a new lease had been signed by the stockholders until some time after it was signed. At a meeting of the stockholders in April 1974, a majority of the directors ratified the lease over Hunt’s objections. The money from the advance rental payment under the new lease was used to eliminate two notes owed by Seneca Square, Inc., upon which Hunt, Sampson and Malone were guarantors. In July 1974, a meeting of the board of directors was called, and a majority of the board voted to pay off obligations of Seneca Square, Inc., which were personally guaranteed by stockholders, including Hunt and Sampson, rather than pay the mortgagee. This was again done over Hunt’s objection. At this time Seneca Square, Inc., was in serious financial straits and foreclosure was, imminent. Hunt and Sampson benefited equally from the elimination of the obligations of Seneca Square, Inc. All directors of the corporation lost their investment in, and ownership of, the property. Hunt’s action for breach of fiduciary duty is founded solely upon actions taken by the board of directors over his objections. While Hunt was not aware of the actual lease agreement being entered into, he was, by his own admission, aware at all time that negotiations for a new lease were underway and actively participated in those negotiations. The actions of which Hunt complains, the new lease agreement and decision to pay off outstanding obligations of the corporation rather than the mortgagee, were management decisions of the board of directors and did not work to perpetrate a fraud on any stockholder. No unfair transactions were undertaken which resulted in unjust enrichment for Sampson or any other director. It appears from the record the board of directors was attempting a good faith effort to make what little they could out of a bad situation. They did what they thought was best for the good of the corporation and the stockholders involved. The trial court did not err in granting a directed verdict on this issue. The appellants next contend the evidence was insufficient to support the award of actual damages. The appellants contend the only evidence of actual damages suffered by the plaintiff was $1,504 in attorney fees incurred in defending the two cases. The jury awarded $10,000 actual damages for each maliciously prosecuted case. In Nelson v. Miller, 227 Kan. at 282, we stated the following damages were recoverable in an action for malicious prosecution: “(a) the harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings, and “(b) the harm to his reputation by any defamatory matter alleged as the basis of the proceedings, and “(c) the expense that he has reasonably incurred in defending himself against the proceedings, and “(d) any specific pecuniary loss that has resulted from the proceedings, and “(e) any emotional distress that is caused by the proceedings.” In order for the evidence to be sufficient to warrant recovery of •damages there must be some reasonable basis for computation which will enable the jury to arrive at an approximate estimate thereof. Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974). In addition to attorney fees, the plaintiff testified the lawsuits required a substantial amount of his time to answer and work on. the lawsuits, and caused him a great deal of worry, loss of sleep, and emotional distress. The lawsuits also created a lien on his property in the amount of $170,000 during the pendency of the lawsuits which damaged his credit and greatly limited his ability to arrange financing. The second lawsuit was pending for almost two years before it was dismissed by Hunt. This evidence was sufficient to support the award of actual damages. The appellants next contend the award of punitive damages was excessive and the trial court erred in refusing to order a remittitur of damages. The jury awarded $300,000 punitive damages in each case, for a total of $600,000. The appellants contend this amount is excessive and disproportionate to the amount of actual damages suffered by the plaintiff. In Henderson v. Hassur, 225 Kan. 678, 694, 594 P.2d 650 (1979), the following rules regarding punitive damages were stated: “It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 273, 133 P.2d 149 (1943). Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 402, 507 P.2d 189 (1973). The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers V. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).” See also Slough v. J. I. Case Co., 8 Kan. App. 2d 104, 111-12, 650 P.2d 729, rev. denied 232 Kan. 876 (1982). Also in Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979), it was stated: “Where a charge of excessive verdict is based on passion or prejudice of the jury, but is supported solely by the size of the verdict the trial court will not be reversed for not ordering a new trial, and no remittitur will be ordered unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court.” The appellants refer the court to Slough in support of their contention punitive damages are excessive. In that case actual damages were awarded in the amount of $55,500 and punitive damages in the amount of $350,000. Although the defendant company was worth $1,227,377,000, the Court of Appeals found the award to be excessive where the evidence showed there was no evil or malicious attitude displayed by the manufacturer and in fact it appeared it had attempted to help the plaintiff as best it could. These types of mitigating circumstances are not present in the instant case. Substantial evidence was presented of the appellant Hunt’s malicious and wrongful conduct toward Sampson in previous years. Hunt himself testified in the Seneca Square case he had given a witness $3,000 to $4,000, a gold watch and a two-carat diamond ring to encourage him to “tell the truth.” The jury heard testimony presented concerning the Bonanza, Inc., case where Sampson collected $120,000 in judgment and interest from Hunt for fraud and breach of fiduciary duty. Sampson testified he felt it would take an award of $1,000,000 punitive damages in each case to stop Hunt from harassing him with these types of lawsuits since the award of $120,000 in the Bonanza, Inc., case had not stopped him. A financial statement was introduced into evidence showing Hunt’s net worth to be over $6,000,000. Furthermore, Sampson testified that after the Bonanza, Inc., case was concluded Hunt had told him that he “wasn’t going to take losing a hundred plus thousand dollars laying down,” and that he could also file lawsuits and “get even” in other ways. The award of punitive damages here is 30 times the award of actual damages. The jury verdict shows they found the appellants guilty of maliciously prosecuting these claims against the plaintiff. The jury had before it and was entitled to consider the attending circumstances, the nature of the acts and the intent of the defendants, as well as any mitigating circumstances and Hunt’s financial condition. Sampson testified he believed it would take at least a million dollars to stop Hunt’s course of litigation against him. The jury obviously believed a large sum was necessary for that purpose. This amount is supported by the evidence. The trial court did not err in refusing to order a remittitur. . Accordingly, the judgment of the lower court is affirmed. Lockett, J., not participating.
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The opinion of the court was delivered by Holmes, J.: This is an appeal by the defendant, Huer, Johns, Neel, Rivers and Webb, a professional corporation and formerly a partnership, (hereafter Huer, Johns, or the architect) from two judgments entered upon jury verdicts in favor of two construction workmen for personal injuries received on the construction jobsite. The injured workmen, O. D. Pearman and Duone Hanna, filed separate suits which were consolidated for trial in the district court. Huer, Johns appeals from each judgment and the cases remain consolidated on appeal. The plaintiffs were ironworkers employed by American Construction Erection Services Company, Inc., of Wichita (ACE-SCO). ACESCO was hired as a subcontractor to erect the structural steel in the construction of a Dillard’s department store building in Wichita’s Towne East Shopping Center. ACESCO was hired by The Law Company of Wichita. The Law Company was technically a subcontractor itself under the general contractor, Pickens & Bond Construction Company of Little Rock, Arkansas. The Law Company, however, functioned in the manner of a general contractor on the project site and will be considered as such for the purposes of this appeal, and will be-referred to as the general contractor. Huer, Johns, under a contract with the project owner Dillard’s, was responsible for drafting the documents for the owner-builder contract, including the plans, specifications and general conditions and was also responsible for the general administration of the construction contract. The accident which injured Hanna and Pearman occurred about 3:00 p.m. on October 18, 1974. At that time Hanna was the foreman of the detail gang for ACESCO. Pearman was a welder on Hanna’s crew. The detail gang was responsible for permanently securing the structural steel once it had been put into place by the company’s raising gang. The unfortunate accident which resulted in serious injuries to each plaintiff occurred when a steel tie joist that Pearman was sitting on at an upper level of the building’s steel skeleton fell, hitting Hanna, knock ing him to a lower level floor and then into an elevator shaft. The tie joist that Pearman was sitting on should have been secured by the raising gang to the steel structure at one end by either bolting or tack welding, but was not. In addition the joist was not the proper length and was fabricated for use in another part of the building. The combination of the tie joist being too short and the failure to secure it at one end to the steel beam resulted in the joist being dislodged from its position and the injuries to the plaintiffs. Plaintiffs assumed the joist was properly secured at one end when, in fact, it was kept aloft merely because each end was resting upon beams which were already in place. Pearman made no inspection of the length of the joist nor determined if it was securely fastened to the beam and Hanna could not see the ends of the joist from his position below. Plaintiffs originally filed suit against their employer, the general contractors on the job, the steel fabricator, the owner and the architect. At the time of trial, Huer, Johns was the only viable defendant remaining in the action for the purpose of liability although the jury was instructed to apportion the comparative fault for the accident in each case among each plaintiff, the general contractors, the employer, the owner and the defendant Huer, Johns. Plaintiffs’ action was based upon two theories of liability, both based upon negligence. First, they contend that the employment contract between Huer, Johns and Dillard’s included the responsibility for safety precautions upon the project. It is contended that ACESCO was notoriously derelict in providing safe working conditions and that if defendant had not been negligent in the performance of its contractual duties in administering the construction of the project the accident would not have happened. Second, it is contended that if Huer, Johns did not breach its contractual duties it was at least guilty of negligence which was the proximate cause of plaintiffs’ injuries. Defendant, on the other hand, asserted there was no contractual duty to supervise or maintain safety standards on the project and that there was no professional negligence on its part. Huer, Johns had been the architects for Dillard’s on several construction projects and did not have a written contract of employment apart from the contract between Dillard’s and the general contractor. Clyde Webb, a principal in Huer, Johns, testified that it was his firm’s responsibility under its oral contract with Dillard’s to design the building, develop the contracts, plans and specifications and “get it built.” The contract documents prepared by Huer, Johns included the plans, drawings, specifications and American Institute of Architects Document A201. A201, along with the plans, etc., described therein and collectively called the contract documents, constituted the construction contract between the owner and the general contractor. Although Huer, Johns was not a party signatory to that contract, in addition to setting out the agreements between the owner and the general contractor, it also specifies the duties of the architect and contains certain provisions pertaining to the subcontractors. All parties rely on certain provisions of A201 and there is no serious contention that A201 is not a part of the oral agreement between Huer, Johns and Dillard’s. Plaintiffs contend that under the oral employment agreement, including A201, Huer, Johns was responsible for safety conditions on the project; that ACESCO was notorious for its failure to follow safety procedures; that defendant knew or should have known ACESCO was sloppy and careless in its work and therefore Huer, Johns was liable for plaintiffs’ injuries. There was considerable testimony about the careless procedures followed by ACESCO and such unsafe practices were well known to The Law Company’s safety man on the project, to its superintendents and to plaintiffs who had been employees of ACESCO for some time. However, it is also clear that no one ever advised Huer, Johns of the numerous problems being experienced with ACESCO. Mr. Webb said he visited the construction site on occasion and others from his firm visited the site periodically for the purpose of fulfilling Huer, Johns’ obligation to the project owner to make certain that the construction was progressing satisfactorily and conformed to the plans and specifications. It was Huer, Johns’ obligation to require that the contractor lived up to its agreement with the owner. Huer, Johns periodically approved completed work in order for the builders to be paid. Webb testified that he never made any inquiries about jobsite safety and that safety was not part of Huer, Johns’ responsibility. He knew The Law Company, which was acting as . the general contractor on the project, had a safety program and a safety man on the project, and he was satisfied with that knowledge. He also testified he was not aware of any safety problems with ACESCO and had been advised of none. Steven Harrell, an employee of The Law Company, was its safety inspector and responsible for safety conditions on the construction project. He testified that his function was to make inspections and review the subcontractors’ work. In his view, ACESCO was obviously and notoriously guilty of unsafe practices. He pointed out that ACESCO was the subcontractor responsible for an earlier collapse of the structural steel skeleton in another part of the shopping center unrelated to this building. He claimed that ACESCO’s violations of the standard safety practices of the steel industry and the federal government’s Occupational Safety and Health Administration (OSHA) regulations were open and clear. When he tried to serve a written citation of unsafe practices upon ACESCO, he was told by the owner in front of the ACESCO employees in vulgar and no uncertain terms what he could do with his piece of paper. Mr. Harrell reported the unsafe practices of ACESCO to his superiors but never told the architects about any safety problems with ACESCO. When he made up a report on the accident which gave rise to the instant lawsuit, he was told by his supervisor in The Law Company to tear it up. The plaintiffs presented expert testimony through one Jacob Alan Dickinson, a Topeka architect. Mr. Dickinson said that he had not actually practiced architecture for some nine or ten years before the case was tried and that he had only once worked on a shopping center project comparable to Dillard’s. He testified he was familiar with the contract documents in this case and that it was the duty of the architect to see that the owner gets what he pays for; that is, that the finished product conforms to the plans and specifications. Further, he stated that he would not have rejected ACESCO as a subcontractor but he would have been there early in the construction process to let them know what was going to be required of them and that they would have to comply with the plans and specifications. It is the architect’s responsibility to see that the construction is done properly and the architect should not rely upon the general contractor for that determination. It is up to the contractor to determine how the work will be done and the architect’s role is to tell the contractor what to do and not how to do it. The architect has a duty to the public to insure that the building is designed and built according to Code. He considered workmen on the project to be part of the public. As to safety conditions existing on the jobsite, it is the architect’s duty to see that there was a safety program and if the architect observed something dangerous from a safety standpoint he should call it to the attention of the general contractor. In his opinion, in order for an architect to fulfill his professional responsibility for a sound ultimate product, he must assure himself of the quality of the work in progress. Mr. Dickinson testified that he checked 10 or 12 of the joist welds on the completed store and found them to be insufficient and not in compliance with the specifications drawn by the architects. He indicated there would be several hundred such welds in the entire project. The inference attempted to be drawn from his testimony was that such inadequate welds or noncompliance with the specifications is indicative of a builder who does sloppy work and if he does sloppy work he probably fails to comply with safety precautions, although there was no showing that the defective welds had anything to do with the cause of the accident in question and no testimony by Mr. Dickinson that jobsite safety was the responsibility of the architect. Dickinson further testified that an architect should not interfere with the contractor’s means and methods unless those methods jeopardized the integrity of the final product or the safety of the people on the job. Both plaintiffs testified they knew the ACESCO raising gang was not always as careful as it should be. Hanna said he sometimes checked the jobs done by the raising gang to see if they were done properly, but that this particular time he did not check. He was of the opinion that if the joist which fell had been properly bolted or tack welded by the raising gang the accident would not have occurred. Neither man could see if the joist was tacked or bolted on one end or the other from their relative positions just prior to the accident. Both were experienced steel construction workers. The defendant’s expert was Roy Calvin, a Wichita architect. He testified that in his view of contract administration, as contemplated by the industry document A201, the architect generally has no responsibility for safety practices. He said the archi tect ordinarily is only concerned with the project results and the integrity of the finished product. The architect’s duty is to see that the building is constructed in accordance with the plans and specifications and that the final product that the owner gets is what he agreed to purchase. Huer, Johns raises several issues on appeal, including failure of the trial court to grant its motions for summary judgment, directed verdict and other post-trial motions. It is also contended the evidence was insufficient, the verdict is contrary to the evidence and the trial court committed error in its instructions. The principal and controlling issues are the architect’s duty to the workmen and the alleged error of the trial court in its instruction number nine relating to the contractual duty of the defendant. In instruction number nine, the court said: “Under the terms of the contracts, the architect had the duty to make professional observations and inquiries regarding the safety practices on the project, and to inform the general contractor of significant safety violations on the job. The architects had the further duty to report to the owner in the event that the general contractor did not take reasonable measures to correct the conditions complained of.” Did the contract between Huer, Johns and Dillard’s create a duty on the architect to be responsible for safety practices on the jobsite? We think not. Absent any showing that the architect affirmatively or by its actions assumed such a duty, we find none in the employment contract. The architect’s contractual duties were to get the building constructed as soon as possible in accordance with the plans and specifications and the contract, designated A201, between the contractor and the owner. Some of the relevant portions of the written contract provide: “1.1.3 The term Work includes all labor necessary to produce the construction required by the Contract Documents, and all materials and equipment incorporated or to be incorporated in such construction. “2.1.2 Nothing contained in the Contract Documents shall create any contractual relationship between the Architect and the Contractor. “2.2,1 The Architect will provide general Administration of the Construction Contract, including performance of the functions hereinafter described. “2.2.2 The Architect will be the Owner’s representative during construction and until final payment. The Architect will have authority to act on behalf of the Owner to the extent provided in the Contract Documents, unless otherwise modified by written instrument which will be shown to the Contractor. The Architect will advise and consult with the Owner, and all of the Owner’s instructions to the Contractor shall be issued through the Architect. “2.2.4 The Architect will make periodic visits to the site to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect, he will keep the Owner informed of the progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor. The Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will not be responsible for construction means, methods, techniques, sequences or procedures or for safety precautions and programs in connection with the Work, and he will not be responsible for the Contractor’s failure to carry out the work in accordance with the Contract Documents. “2.2.12 The Architect will have authority to reject Work which does not conform to the Contract Documents. Whenever, in his reasonable opinion, he considers it necessary or advisable to insure the proper implementation of the intent of the Contract Documents, he will have authority to require special inspection or testing of the Work in accordance with Subparagraph 7.8.2 whether or not such Work be then fabricated, installed or completed. However, neither the Architect’s authority to act under this Subparagraph 2.2.12, nor any decision made by him in good faith either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of the Architect to the Contractor, any Subcontractor, any of their agents or employees, or any other person performing any of the Work. “3.3.1 If the Contractor fails to correct defective Work or persistently fails to supply materials or equipment in accordance with the Contract Documents, the Owner may order the Contractor to stop the Work or any portion thereof, until the cause for such order has been eliminated. “4.3.1 The Contractor shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.” (Emphasis added.) In addition to the foregoing provisions, A201 contains one entire article dealing with the “Protection of Persons and Property.” The pertinent sections under Article 10 provide: “10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work.” “10.2.1 Hie Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to: .1 all employees on the Work and all other persons who may be affected thereby; .2 all the Work and all materials and equipment to be incorporated therein, whether in storage on or off the site, under the care, custody or control of the Contractor or any of his Subcontractors or Sub-subcontractors; and .3 other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. “10.2.2 The Contractor shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority having jurisdiction for the safety of persons or property and to protect them from damage, injury or loss. He shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities. “10.2.5 The Contractor shall designate a responsible member of his organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor’s superintendent unless otherwise designated in writing by the Contractor to the Owner and the Architect.” (Emphasis added.) Thus, it is clear from the written contract that the duty to provide and enforce safe working conditions was that of the general contractor, The Law Company. In addition, the employer of the plaintiffs, ACESCO, would have a duty to provide safe working conditions for its employees. In finding a contractual duty on Huer, Johns the trial court construed the term “Work” in § 1.1.3 of the written contract to include safety precautions and based that decision partially upon the provision in § 2.2.1 that the architect is to provide general administration of the construction contract. The trial court stated: “It seems, in relation to the contract documents themselves, the primary question would be whether the architects had any authority over safety precautions which are used by the contractors, therefore, whether any duty arises on the part of the architects. It’s the holding of the Court that the architects do have some authority in regard to safety precautions used by the contractor. The Court has examined the contract portion entitled A201; it looks to the definition of “work” which includes all labor necessary to produce the construction required by the contract documents and the Court rules that the safety procedures used by the contractor comes under the definition of “work” contained in 1.1.3 of A201.” Such a construction is obviously contrary to the clear wording of the contract itself and, if correct, would require that the ultimate responsibility for compliance with all of the provisions of the contract between the contractor and the owner rests upon the architect. We do not construe the contract so broadly as to the term “Work” as used in the contract and as applied to the architect’s duties. There have been numerous decisions in recent years wherein the same or similar contractual provisions have been before the courts based upon claims by injured workmen against the architect or engineer responsible for the design of the structure. The proliferation of such suits may conceivably be based upon the desire of the injured workman to find a “deep pocket” to more adequately compensate for serious injury than may be recovered from the employer or general contractor under the limitations of workers’ compensation statutes. Kreiger v. J. E. Greiner Co., 282 Md. 50, 382 A.2d 1069 (1978). The question of the extent of the contractual responsibility of the design professional, in this case Huer, Johns, for safety precautions on the jobsite and the liability of such persons for injuries to workmen on the jobsite is one of first impression in Kansas. In Wheeler & Lewis v. Slifer, 195 Colo. 291, 577 P.2d 1092 (1978), a welder-carpenter who was an employee of a subcontractor on a high school construction project brought suit against the architects for injuries received when a portion of the roof collapsed allegedly due to lack of shoring and bracing. The Colorado Supreme Court, in construing a construction contract with similar provisions to the one now before us, stated: “The Architects’ liability in this case was premised upon the breach of a contractual duty owed by the Architects to the workmen engaged at the construction site. Slifer contended, and the court of appeals held, that the contract between the Architects and the District and the contract between the District and the general contractor imposed the duty upon the Architects ‘to see that reasonable precautions were taken in protecting the workmen on the site from unsafe conditions.’ We disagree. [1] A split of authority exists among the jurisdictions which have considered whether an architect, contractually responsible for supervision of a construction project, is liable for injuries sustained by workmen as a result of unsafe working conditions. See Annot., 59 A.L.R.3d 869 (1974); AIA, Legal Citator of Building and Construction Contracts; AIA, Architects Handbook of Professional Practice; K. Davidson, The Liability of Architects, 13 TRIAL 20 (June 1977). Several courts have held that architects have extensive supervisory duties and have imposed liability. Swarthout v. Beard, 33 Mich. App. 395, 190 N.W.2d 373 (1971), rev'd on other grounds, 388 Mich. 637, 202 N.W.2d 300 (1972); Miller v. DeWitt, 37 Ill. 2d 273, 226 N.E.2d 630 (1967). We, however, believe the better rule is found in those jurisdictions which have refused to impose liability absent a clear assumption of duty. Krieger v. J. E. Greiner Co., Inc., 282 Md. 50, 382 A.2d 1069; Walters v. Kellam & Foley, [172] Ind. App. [207], 360 N.E.2d 199 (1977); Brown v. Gamble Construction Co., Inc., 537 S.W.2d 685 (Mo. App. 1976); Vonasek v. Hirsch and Stevens, Inc., 65 Wis. 2d 1, 221 N.W.2d 815 (1974); Seeney v. Dover Country Club Apartments, Inc., _ Del. _, 318 A.2d 619 (1974); Jackson v. Sergent, Hauskins & Beckwith Engineers, Inc., 20 Ariz. App. 330, 512 P.2d 862 (1973); Reber v. Chandler High School District #202, 13 Ariz. App. 133, 474 P.2d 852 (1970); Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. 525, 412 S.W.2d 621 (1966), reh granted, 242 Ark. 97, 412 S.W.2d 621, 626 (1967); Day v. National United States Radiator Corp., 241 La. 288, 128 So. 2d 660 (1961).” p. 293. After stating the relevant contractual provisions, the court went on to state: “We conclude, as a matter of law, however, that the terms of both contracts are unambiguous and insufficient to support a conclusion that the parties intended the Architects have the duty of supervising the method and manner of construction to insure that the work be performed safely. The provisions, when considered in the context of the entire contract, merely evidence an intention that the Architects exercise such supervision as is necessary to assure that the work comply with the plans and specifications prepared by the Architects.” p. 295. “The contractual provisions in this case, considered in the context of the entire contract, do not support a conclusion that the Architects had the duty to supervise the methods and details of construction to ensure the safety of the workmen on the site. The duty of supervision in this case is more consonant with the intention that the Architects exercise such supervision as is necessary to ensure that the contractor’s work complies with the plans and specifications prepared by the Architects. Before an architect will be held to have agreed to exercise direct control over a contractor with respect to day-to-day safety precautions, the duty must clearly appear in the contract.” p. 297. In an older New York case where the architects had contracted to “supervise” the work on the project, the Appellate Division rendered judgment for the architects. The plaintiff architects had sued for their fee. The trial court failed to sustain their demurrer to a counterclaim which alleged that the architects were responsible for injury caused by unsafe jobsite practices and violations of a safety law. The court said: “The section of the Labor Law which plaintiffs [the architects] are charged with permitting the contractors to violate had nothing to do with the construction of the building which could be well constructed, and could as perfectly follow the plans and specifications without barriers around the shafts and openings as with them. The sole object of the section was to protect the workmen employed upon the building from bodily injury. [Citation omitted.] The very utmost obligation assumed by the plaintiffs under their alleged special contract of supervision was to see that the building was properly constructed, and if that result was achieved they were not called upon to watch and inspect every means adopted by the contractors in fulfilling their contract.” Clinton v. Boehm, 139 App. Div. 73, 75, 124 N.Y.S. 789 (1910). The New York court was of the opinion that the architect was not generally to be held responsible for those safety factors solely related to worker safety. In Brown v. Gamble Const. Co., Inc., 537 S.W.2d 685 (Mo. App. 1976), the court was faced with the identical contract now before this court. Brown, a construction worker employed by the roofing subcontractor was fatally injured while working on a roof when he fell through a hole in the roof. His widow brought suit against the general contractor and several others including the project architects. The Missouri court upheld a directed verdict in favor of the defendant architect. The court stated: “What plaintiff does contend in essence is that the architects have a duty as ‘design professionals’ to supervise the construction and insure that safety precautions are taken to protect workers. But architects are under no duty to supervise construction unless they expressly agree to do so. Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 476 [3-5] (8th Cir. 1968); Westerhold v. Carroll, 419 S.W.2d 73, 80-81 (Mo. 1967); Miller v. DeWitt, 59 Ill. App. 2d 38, 208 N.E.2d 249, 284-85 [23] (1965), affirmed in relevant part, 37 Ill. 2d 273, 226 N.E.2d 630 (1967). A determination in this case as to who was responsible for general supervision of the project and, specifically, for establishing safety measures to protect persons and property involved is not difficult. By contract, Gamble expressly assumed responsibility for safety precautions during the construction of the store. Article 10 of the contract, ‘Protection of Persons and Property’, states that ‘The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work.’ Article 2.2.4 provided: ‘The Architect will not be responsible for construction means, methods, techniques, sequences of procedures, or for safety precautions and programs in connection with the Work,* *.’... Gamble’s responsibility for project supervision and safety precautions appears quite clear. The architect was relieved of any such duty.” p. 687. Baker v. Pidgeon Thomas Company, 422 F.2d 744 (6th Cir. 1970), involved a factual situation quite similar to ours. Baker was working on a construction project when a steel joist fell from a twenty-four foot high steel column and struck his back. After receiving workmen’s compensation from his employer’s insurer, Baker filed suit against several others on the job including the design engineers. The court in upholding a directed verdict for the engineers stated: “Allen & Hoshall contracted with the owner, Boise Cascade, to design a building and ‘to act in a general supervisory capacity throughout the construction period.’ This contract provided for periodic inspections on the job site by Allen & Hoshall, but it did not require the firm to maintain a constant day-to-day superintendence over the general contractor and the subcontractors. “It is clear from this contract that Allen & Hoshall’s primary obligation was to design the building and to supervise its construction to insure that design and material specifications would be followed. There was no requirement that Allen & Hoshall make safety inspections. Nor were they given authority to stop work for safety reasons as they could when they detected deviations from specifications. “Appellant argues that Allen & Hoshall’s supervisory duties required it to determine whether the steel erector, Pidgeon Thomas, was complying with the AISC Code as required by its contract with Boise Cascade. He contends that the joist would not have fallen from the steel column if Pidgeon Thomas had followed the Code, and had bolted or welded it instead of permitting it to be held in place on the column solely by its own weight. However, there is nothing in Allen & Hoshall’s contract with the owner that imposed a duty to ascertain whether all the subcontractors were conforming to their contracts with the owner, except to the extent those contracts required conformity with design specifications. Accordingly, we hold that the District Court did not err in granting a directed verdict for Allen & Hoshall.” p. 746. In Miller v. DeWitt, 37 Ill. 2d 273, 226 N.E.2d 630 (1967), plaintiffs, employees of a contractor, were injured when the roof of a school gymnasium they were working on collapsed, and brought suit against several parties including the architects. Although the court found that the architects could be held liable on the theory of negligence, in considering the contractual liability of the architects arising from their supervisory duties the court stated the general rule to be: “[T]he general duty to ‘supervise the work’ merely creates a duty to see that the building when constructed meets the plans and specifications contracted for.” 37 III. 2d at 284. Thus, it appears that the great weight of authority supports the rule that an architect does not by reason of his supervisory authority over construction assume responsibility for the day-today methods utilized by the contractor to complete the construction. The architect’s basic duty is to see that his employer gets a finished product which is structurally sound and which conforms to the plans and specifications. Instruction nine as given by the court directed the jury that Huer, Johns was responsible by contract for safety practices on the project, and was clearly erroneous. Any duty Huer, Johns may have had involving safety procedures of the contractor and subcontractors must have been specifically assumed by contract or must have arisen by actions outside the contract. The contract of Huer, Johns with Dillard’s does not include responsibility for jobsite safety procedures. In determining whether an architect’s contractual duty to supervise the construction includes the responsibility for safety on the jobsite, it has been recognized that the architect may intentionally, or impliedly by his actions, bring the responsibility for safety within his duty of supervision. In Illinois, by statute, the person “in charge” of the construction is liable under the Illinois Structural Work Act for injury resulting from safety violations of the act. In Hausam v. Victor Gruen & Associates, 86 Ill. App. 3d 1145, 408 N.E.2d 1051 (1980), the court set forth certain factors to be considered in determining whether a person was in charge of the construction. The court stated: “The test of whether a party is in charge of the work involves an assessment of the totality of the circumstances in each case. (Norton.) [Norton v. Wilbur Waggoner Equipment Rental & Excavating Co., 76 Ill. 2d 481, 394 N.E.2d 403 (1979).] In the recent case of Westerfield v. Arjack Co. (1979), 78 Ill. App. 3d 137, 397 N.E.2d 451, the court identified a number of factors which should be considered in determining whether the totality of the circumstances establishes that a party had charge of the work: (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the job site; (6) authority to issue change orders; (7) the right to stop the work.” p. 1147. (Emphasis in original.) Such factors, while not exclusive, would appear to be relevant in any case where an attempt is made to expand the architect’s liability beyond the specific provisions of the employment contract. In Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), a power company had accepted the responsibility for designing an intersection traffic control system for the city. Since the designing of the traffic control system was not completed by the power company, this court sustained a plaintiffs verdict against the power company when the plaintiff proved that she was injured as a result of the power company’s failure to complete the job it started or undertook to complete. In Schmeck, at 24, we adopted the following from the Restatement: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts § 324A (1965). Considering the various factors set forth in Hausam and our recent decision in Schmeck, it would not appear from the facts in this case that Huer, Johns by its action assumed any expanded contractual duties. On the contrary, the defendant has specifically disclaimed any responsibility for safety conditions on the Dillard’s jobsite and, as alleged by plaintiffs, did nothing relative to safety on the jobsite. Cases which have found liability on the part of the design professional have usually turned upon specific facts creating a duty to the jobsite workmen. Associated Engineers, Inc. v. Job, 370 F.2d 633 (8th Cir. 1966), detailed supervisory duties, including safety, in the contract; Caldwell v. Bechtel, Inc., 631 F.2d 989 (D.C. Cir. 1980), defendant was a safety engineering firm with actual knowledge of the danger; Cutlip v. Lucky Stores, 22 Md. App. 673, 325 A.2d 432 (1974), structural collapse; Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960), additional fee for detailed supervision; Evans v. Howard R. Green Co., 231 N.W.2d 907 (Iowa 1975), design defect occurring during construction; Estate of Clark, 33 Mich. App. 395, 190 N.W.2d 373 (1971), 59 A.L.R.3d 858, rev’d on other grounds 388 Mich. 637, 202 N.W.2d 300 (1972), actual knowledge. For additional authorities see Annot., 59 A.L.R.3d 869; Comment, The Supervising Architect: His Liabilities and His Remedies When a Worker is Injured, 64 Nw. U.L. Rev. 535 (1969); Sweet, Site Architects and Construction Workers: Brothers and Keepers or Strangers?, 28 Emory L.J. 291 (1979); Lurie and Stein, Injured Workmen: Loss Allocation Among the Direct Participants in the Construction Process, 23 St. Louis U.L.J. 292 (1979); Mills, The Design Professional - An Unlikely Defendant Under the Illinois Structural Work Act, 23 St. Louis U.L.J. 317 (1979); and Philo, Revoke the Legal License to Kill Construction Workers, 19 DePaul L. Rev. 1 (1969). In the instant case, we hold that Huer, Johns did not have a contractual duty to provide for the safety of the plaintiffs and the court’s instruction was clearly error. There is nothing in the record which would support a finding that Huer, Johns by its actions undertook or could have impliedly assumed responsibility for safety procedures on the jobsite. We agree with plaintiffs’ contentions that if Huer, Johns had actual knowledge of unsafe practices they should have taken some action. However, all the evidence discloses that they were not advised of any such practices. Plaintiffs, as well as other employees of ACESCO, and the supervisory personnel of The Law Company were fully aware of the work practices of ACE-SCO yet no one advised Huer, Johns of these problems. It is safe to assume that it was generally accepted that Huer, Johns was not responsible for safety on the jobsite. As specifically spelled out in the contract, that duty was upon the general contractor. It is a fundamental rule that actionable negligence must be based on a breach of duty. “For negligence to exist there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists there can be no negligence.” Madison v. Key Work Clothes, 182 Kan. 186, 192, 318 P.2d 991 (1957). In Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765 (1960), we affirmed the trial court’s action in sustaining a demurrer to the plaintiff s evidence when no duty was found. A demurrer to the evidence was essentially the same as a motion for directed verdict under our present code of civil procedure. In Blackmore we said: “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself.” p. 440. The general rule as to an architect’s responsibility for negligence has been stated as follows: “An architect may be held liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby any one lawfully on the premises is injured. An architect’s liability for negligence resulting in personal injury or death may be based upon his supervisory activities or upon defects in the plans. The liability of the architect, moreover, is not limited to the owner who employed him; the modern view is that privity of contract is not a prerequisite to liability. As in other negligence cases, however, there can be no recovery against the architect unless it can be established that his negligence was the proximate cause of the personal injury or wrongful death sued for.” 5 Am. Jur. 2d, Architects § 25, pp. 688-89. As a professional, an architect cannot stand idly by with actual knowledge of unsafe safety practices on the jobsite and take no steps to advise or warn the owner or contractor. Even in such a situation, however, the plaintiffs still bear the burden of showing the duty owed to them, a breach of that duty and that the breach was the proximate cause of the injuries suffered. Huer, Johns was hired by Dillard’s to design a building and to see that the finished product conformed to the plans and specifications. The employment contract between Huer, Johns and Dillard’s did not include responsibility for safety procedures on the jobsite and they did not assume such responsibilities outside the duties imposed by the contract. To the contrary, the contract specifically provided that the general contractor would assume such duties. Huer, Johns was not responsible for the injuries suffered by the plaintiffs. The judgment is reversed and the case remanded with directions to enter judgment for the defendants.
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The opinion of the court was delivered by Prager, J.: This is a direct appeal from a conviction of rape (K.S.A. 21-3502). The complainant was the adopted stepdaughter of defendant, Raymond Louis Matlock. The rape allegedly occurred in April 1979. The charge of rape was not filed in Leavenworth County until July 15, 1980, one year and three months after the alleged rape took place. The defendant denied the charge. At the trial, the only witness called by the State was the complainant, who at that time was twenty-two years of age. The alleged rape took place at the defendant’s home in Leavenworth on an evening when there were several members of the family present in the house. The complainant testified that the act occurred in her bedroom on an old creaky bed at a time when the door to her sister’s room was open. The defense called four witnesses who testified they were in the house on the night in question. They were the complainant’s two sisters, her mother (the defendant’s wife), and a young man who was a friend of one of the sisters. All of these witnesses denied that they saw or heard anything that night. The defendant took the stand and unequivocally denied the charge. The jury convicted the defendant and he appealed. The defendant raises several points on the appeal. The first three points involve the sufficiency of the evidence to support the verdict of guilty. The defendant states his points as follows: (1) The State failed to establish the corpus delicti of the charge of rape; (2) The uncorroborated testimony of the alleged rape victim, when the complaint is not made until one year and three months after the alleged incident, is insufficient evidence upon which to base a conviction; and (3) The trial court erred in failing to sustain the defendant’s motion for a judgment of acquittal. The thrust of the defendant’s argument is that a defendant may not be convicted of a charge of rape on the' uncorroborated testimony of the alleged victim where there is no other evidence presented to show the fact of the rape itself. He maintains there was no credible evidence presented to demonstrate that the crime actually took place. He argues that the uncorroborated testimony of the alleged rape victim, who first complained about the defendant’s alleged misconduct over a year after the alleged crime, is not sufficient to sustain a conviction. The defendant also maintains that the conviction must have been the result of prejudice arising as a result of several matters arising during the trial. The jury was advised that the defendant was on a federal parole from the Leávenworth Penitentiary. At trial, the prosecutrix testified that the reason she filed charges at this particular time, over a year after the alleged rape occurred, was that her sister was acting strangely. The defendant’s objection to this statement was overruled. Also, during closing argument, the prosecutor told the jury that he would not be prosecuting the suit, if he did not believe the prosecutrix’s story to be true. Undoubtedly, all of these factors worked to the detriment of the defendant. The test to be applied to determine the sufficiency of evidence to support a verdict of guilty has been stated many times by this court: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981); State v. Sanders, 227 Kan. 892, 895, 610 P.2d 633 (1980); State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979). At common law, the testimony of the prosecutrix alone was sufficient to sustain a conviction without corroboration. Several states, by statute or court decision, have modified the common-law rule and now require some corroboration in order to sustain a conviction of rape. See 65 Am. Jur. 2d, Rape § 96, and the annotation at 60 A.L.R. 1124, where many cases are cited. Kansas has not modified the common law and has consistently held that a conviction of rape can be upheld without corroboration. See State v. Sanders, 227 Kan. 892; State v. Robinson, 219 Kan. 218, 220, 547 P.2d 335 (1976); State v. Morgan, 207 Kan. 581, 485 P.2d 1371 (1971); State v. Tinkler, 72 Kan. 262, 83 Pac. 830 (1905). The appellate courts of several other jurisdictions, which have adopted rules precisely like ours on the sufficiency of evidence and the uncorroborated testimony of the prosecutrix in a rape case, have held that in order to convict on the uncorroborated testimony of the pi-osecutrix, the testimony of the prosecutrix must be clear and convincing, and that where her testimony is so incredible and improbable as to defy belief, the evidence is not sufficient to sustain a conviction. State v. Goodale, 210 Mo. 275, 109 S.W. 9 (1908); Morris v. State, 9 Okla. Crim. 241, 131 Pac. 731 (1913); DeArmond v. State, 285 P.2d 236 (Okla. 1955); State v. Burton, 355 Mo. 467, 196 S.W.2d 621 (1946); Blumenthal v. State, 98 Tex. Crim. App. 601, 267 S.W. 727 (1925); State v. Moe, 68 Mont. 552, 219 Pac. 830 (1923); Ganzel v. State, 185 Wis. 589, 201 N.W. 724 (1925). We have concluded that the uncorroborated testimony of the prosecutrix in this-case was unbelievable to the extent that it was not sufficient to sustain the conviction of the defendant for rape. In reaching this conclusion, wé have carefully examined the record and noted the following facts admitted or uncontroverted by the prosecutrix, which tend to cast doubt upon the credibility of her testimony: ' (1) The alleged rape occurred on an old creaky bed in the prosecutrix’s bedroom, which was in between her two sisters’ bedrooms. (2) The bed was so close to the wall to her sister Treva’s room that it would bang against the wall whenever someone moved ábout on the bed. (3) The prosecutrix did not cry out when the alleged rape occurred. (4) The prosecutrix did not clean herself after the attack. (5) The next day the prosecutrix wore the very same underwear that she had worn during the attack. (6) The prosecutrix testified she cried for three hours after the attack, but no' one else in the house heard her. (7) After the alleged rape, the prosecutrix wrote a love letter to a boyfriend denying that she had ever had any sexual relations with anyone. (8) The prosecutrix told no one about the alleged attack after it occurred, waiting until fifteen' months later. (9) The prosecutrix, by her own admission, demonstrated friendly feelings towards her father both before - and after the alleged rape occurred. In fact, she voluntarily moved with her family, including her father, to Tulsa about three months after the alleged attack, even though she had the opportunity to continue with her job at the Leavenworth County District Court. (10) Throughout all this time, she acted outwardly loving toward defendant, “[Hjugging, talking to him friendly as ever, just normal things that most daughters do.” (11) The prosecutrix voluntarily accompanied the defendant alone on long trips on several occasions after the alleged attack. (12) The prosecutrix admitted that she wanted to remain the decision-maker of the family, which' she had been during her father’s stay in prison, and admitted that she had threatened at times to send her father back to prison when he made family decisions with which she disagreed. (13) The prosecutrix admitted that lying had been a part of her life for a long time. (14) The corroborative factors usually found in rape cases were not present: (a) There was no evidence of outcry by the victim; (b) There were no signs or marks on the complainant’s body or clothing indicative of a struggle; (c) There was a complete failure of the complainant to complain about defendant’s misconduct at the earliest opportunity; (d) Reasonable opportunity to commit forcible rape was not existent under the circumstances; and (e) There was no evidence of male sperm on the complainant’s body or her clothing or her bedding. There was no physical examination by a physician. There was no evidence whatsoever presented at the trial, other than the testimony of the prosecutrix, which was inconsistent with the innocence of the defendant. All defense witnesses who were present in the house the night of the alleged attack testified without equivocation that they did not see or hear anything which would indicate the rape did occur. The ex-boyfriend of the prosecutrix’s sister, Treva, testified that he spent the night on the couch in the living room with an unobstructed view of complainant’s bedroom, that he could easily see into her bedroom, and thus, would have seen the defendant enter the bedroom, if he had done so. He testified that he observed the defendant enter his own bedroom about an hour before the alleged attack occurred, and that at no time did he see the defendant come out of that bedroom. The uncorroborated testimony of the complainant, who waited fifteen months to complain or to relate her story to anyone, is simply unbelievable. If defendant was abusing her on that evening in April of 1979, and if such activity was against her will, a spoken word would surely have stopped the rape and brought assistance from her mother or other family members. We hold that these uncontradicted facts cast so much doubt upon the credibility of the prosecutrix that no rational factfinder could have believed her testimony and found the defendant guilty beyond a reasonable doubt. State v. Carr, 230 Kan. 322; State v. Mitchell, 54 Kan. 516, 38 Pac. 810 (1895). We wish to emphasize that we are not repudiating the rule that the uncorroborated testimony of the prosecutrix may be sufficient to convict a defendant of rape. However, that rule has always been subject to the rule that her testimony must be convincing to the point that a rational factfinder could find the defendant guilty beyond a reasonable doubt. Here, we do not believe the testimony rises to that level. Thus, the conviction of the defendant must be reversed. Having disposed of the case on this basis, we need not reach the other issues raised on appeal by the defendant. The judgment of the district court is reversed with directions to discharge the defendant. Schroeder, C.J., McFarland & Herd, JJ., dissenting.
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The opinion of the court was delivered by Holmes, J.: Charles E. Cornett and Virginia B. Cornett, husband and wife, the plaintiffs in the trial court, appeal from various judgments and orders entered in favor of the defendants, Clifford R. Roth and Mid-Continent Research, Inc. The defendant Mid-Continent Research, Inc., was formerly known as Mid-Continent Research Animals, Inc., and will be referred to herein as MCRA. The Cornetts also appeal from the assessment of an attorney fee for allegedly filing a frivolous motion and from a judgment in favor of Roth in a different case which was consolidated with the principal case in the trial court. The facts, which are complicated and confusing, need to be set forth in some detail. In July, 1977, the Cornetts approached Mr. Roth, an attorney in Johnson County, about the possibility of selling a business operation and two pieces of real estate. It was alleged that Roth was the business adviser, or the attorney for the Cornetts, or represented them in some other unspecified fiduciary relationship. Roth denied any representation of the Cornetts or the existence of any fiduciary relationship. The Cornetts were the owners of a business known as Mid-Continent Research Animals, Inc. which raised and supplied rats for research purposes. The business was located upon fourteen acres of real estate which the Cornetts desired to sell, along with the business itself. The second tract of land was a quarter section of farm property located in Johnson County. Roth determined that he would purchase both tracts of land and the corporate stock of MCRA. On August 19, 1977, the parties entered into a written agree ment for the sale of the MCRA stock and real estate. The total purchase price was $252,000.00 to be paid as follows: “$150,000.00 to be delivered to the Sellers in the form of an installment note to the Sellers, payable in monthly installments of $1,000.00 per month at an interest rate of eight percent (8%) per annum, payable over a period of ten (10) years at said rate with the balance of $150,000.00 due at the end of said 10 year period. Said note shall be executed to the Sellers by Mid-Continent Research Animals, Inc. “Additionally, Buyer also agrees to deliver to the Sellers Twenty-Seven Thousand Dollars ($27,000.00) in the form of a non-interest bearing note due and payable within ten (10) years from the date hereof, in a form agreeable to the Buyer. “Additionally, the Buyer has executed to the Sellers a note for the sum of Seventy-Five Thousand Dollars ($75,000.00) to be paid ten (10) years from August 30, 1978, with no accumulation of interest.” The agreement was executed by the Cornetts as sellers and by Roth as purchaser. MCRA was not a party to the agreement but did execute a promissory note to the Cornetts dated October 2, 1977, for $150,000.00 due September 30, 1987, with the interest at 8%, also payable on the due date. MCRA made monthly interest payments of $1,000.00 to the Cornetts through the month of May, 1980, even though they were not a party to the agreement and the note did not require payment until the due date. Answers to interrogatories indicate MCRA made the monthly interest payments pursuant to some side agreement with the Cornetts, the terms of which do not appear in the record. Mr. Cornett was retained by Roth as a consultant in the management of MCRA and was serving as its president at the time the assets were sold. The business of MCRA steadily declined and in May or June of 1980, all of its assets were sold and the proceeds utilized to pay other outstanding debts of the rat-raising venture. The Cornetts received none of the proceeds of the sale and the purchaser was not informed of the MCRA note to the Cornetts, although Mr. Cornett, as president of MCRA, executed a verified statement of the liabilities of MCRA. He did not include the $150,000.00 payable to him and Mrs. Cornett. On August 30, 1977, the Cornetts, as sellers, and Roth, as buyer, entered into a real estate contract for the sale of the quarter section of farm land. The contract provided the total consideration of $250,000.00 would be paid as follows: “Thirty-five Thousand Dollars ($35,000.00) deposited with Sellers, the balance to be paid in the following manner: One Hundred Thirty-Five Thousand Dollars ($135,000.00) to be delivered in the form of an installment note to the Sellers, payable in monthly installments of Six Hundred Eight and 33/100 Dollars ($608.33) per month at an interest rate of5.4074 percent per annum, payable over a period of ten (10) years at said rate the balance of One Hundred Thirty-Five Thousand Dollars ($135,000.00) due at the end of said 10 year period. “Additionally, a note shall be executed in the amount of Five Thousand Dollars ($5,000.00) payable in ten (10) years from date to the Sellers at a rate of six percent (6%) per annum with no payments on principal or interest to be made until the end of the term of said note in ten (10) years with said principal and interest being paid to the Sellers at that time. “Additionally, the Buyer has executed to the Sellers a note for the sum of Seventy-Five Thousand Dollars ($75,000.00) to be paid 10 years from August 30, 1978, with no interest accumulating. “Additionally, the Sellers shall not secure a mortgage on said property described above in paragraph 2.” (Emphasis added.) Upon the failure to receive the $1,000.00 interest payment due on June 1, 1980, the Cornetts filed suit July 17,1981. In the final amended petition filed January 15, 1982, the Cornetts, in four separate counts, sought actual and punitive damages and reformation of the agreements entered into with Roth. The trial court ruled that counts I and III were barred by the statute of limitations and that counts II and IV were premature and dismissed all counts alleged in the amended petition. Extensive discovery had been completed at the time the trial court ruled on the various pretrial motions which have led to this appeal. The facts involved in the award of attorney fees for filing a frivolous motion and the granting of judgment in favor of Roth in the consolidated case will be considered later in this opinion. As a preliminary matter to determining the issues on appeal, we are faced with a jurisdictional challenge by the defendants, who have filed a motion to dismiss the appeal. The journal entry of final judgment in the district court was filed October 5, 1982, and plaintiffs’ notice of appeal was filed November 2, 1982. On October 15, 1982, plaintiffs had filed a motion for reconsideration of the order of October 5, 1982. This motion was overruled on November 10,1982, and defendants contend that the notice of appeal had to be filed subsequent to that date. No additional notice of appeal was filed. Defendants have shown no prejudice resulting from the alleged premature filing of the notice of appeal. Considering the liberal construction to be given our procedural statutes and rules and the intent of our code of civil procedure and our appellate rules, we find no fatal jurisdictional defects and will proceed to determine the appeal on the merits. See K.S.A. 60-102; Supreme Court Rule 203 (230 Kan. xcix). Count I of the amended petition sought actual and punitive damages against Clifford R. Roth. It was asserted that “Roth has acted as the attorney for the Plaintiffs and/or as a financial adviser for the Plaintiffs or acted in some fiduciary capacity in relationship to the Plaintiffs.” It is contended that Roth breached his contract of employment with the Cornetts, breached his fiduciary duty to the Cornetts and was negligent in the drafting of the agreements in failing to provide security for the promissory notes and in not giving mortgages on the real estate. It is further contended the terms of the agreements were unreasonable and to the advantage of Roth and to the disadvantage of the Cornetts. The Cornetts further assert that Roth was negligent in his representation of the Cornetts. Roth asserts he never undertook to represent the Cornetts in any capacity, assumed no fiduciary duty to them, and that his sole position was as a purchaser of the various properties. The trial court found that the essence of the complaint was for a breach of fiduciary duty based upon the agreements entered into in 1977 and as such, the cause of action was barred by the two-year statute of limitations, K.S.A. 60-513. The Cornetts contend that they were not aware of the alleged actions of Roth until the interest payments upon one of the notes ceased in May of 1980, and that the statute of limitations did not commence to run until that date based upon K.S.A. 60-513(a)(3). We conclude the trial court was correct in its ruling. It is not for this court to speculate on why the Cornetts would enter into the agreements on what appear to be extremely disadvantageous terms. The contracts are clear and unambiguous and were entered into knowingly by the Cornetts. It is clear from the record that the Cornetts and Roth were involved in business ventures other than the ones involved in this action and that the agreements herein may have been ancillary to other business ventures. In Denison State Bank v. Madeira, 230 Kan. 684, 640 P.2d 1235 (1982), we reviewed the rules pertaining to the establishment of and breach of a fiduciary duty. In Madeira we held: “While there is no invariable rule which determines the existence of a fiduciary relationship it is manifest that there must not only be confidence of one in another, but there must also exist a certain inequality, dependence, weakness of age, of mental strength, business intelligence, knowledge of the facts involved, or other conditions, giving to one an advantage over the other.” Syl. ¶ 5. “A person who is not under any disability or disadvantage may not abandon all caution and responsibility for his own protection and unilaterally impose a fiduciary relationship on another without a conscious assumption of such duties by the one sought to be held liable as a fiduciary.” Syl. ¶ 10. The only allegation or fact appearing in the record which would tend to give Roth any advantage over the Cornetts was his occupation as an attorney. On the other hand, the Cornetts, as owners and operators of MCRA, obviously had superior knowledge of the potential of MCRA and its ability to pay the $150,000.00 obligation. Assuming that a fiduciary or contractual duty existed, which is not borne out by the existing record; any alleged breach of that duty was clearly ascertainable at the time of the agreements were entered into. Even if there were an oral contract of employment, which was not shown in the record, any action based thereon would also have arisen in 1977 and would be barred by K.S.A. 60-512(1). We have considered all of the various arguments of the Cornetts and find them to be without merit. The trial court was correct in its ruling that the cause of action in count I was barred by the statute of limitations. In count III the Cornetts alleged that the two agreements were procured by Roth through fraud and/or misrepresentation and that such fraud or misrepresentation was not discovered until on or about June 1, 1980, when the interest payment was not paid. What has been said in relation to count I is equally applicable to count III. The cause of action, if any ever existed, arose in 1977, was clearly ascertainable at that time, and as this action was not commenced until July, 1981, the cause of action was barred by K.S.A. 60-513. Count II of the amended petition asserted a claim for $10,000.00 against defendant Roth based upon a written guaranty agreement which he executed in connection with the purchase of the MCRA stock and real estate. Under the terms of the agreement between the Cornetts and Roth, MCRA executed a $150,000.00 note to the sellers. As partial security for payment of the note, Roth furnished a guaranty agreement to the Cornetts which provided: “This letter hereby guarantees payment of $10,000.00 of the Note between Charles E. Cornett and Virginia B. Cornett from Mid-Continent Research Animals, Inc. dated October 2, 1977, in the amount of $150,000.00, payable September 30, 1987. “If on September 30, 1987, Mid-Continent Research, Inc. fails to pay said $150,000.00,1 hereby guarantee payment of $10,000.00 of that sum. In the event of default on September 30, 1987 by Mid-Continent Research, Inc. and if payment shall be made thereafter by them, it is understood that I will be reimbursed for said $10,000.00. “This guarantee is limited to $10,000.00. “A copy of said Note is attached hereto.” The Cornetts contend the guaranty is ambiguous and unclear and therefore should be construed to be a guarantee of the payment of both the promissory note and the monthly interest payments called for in the sale agreement. They also contend it is not clear that it is to be effective only upon nonpayment in 1987 and that as MCRA is no longer in business and is without assets to pay its note when it becomes due, the action on the guaranty is proper. The trial court held the cause of action was premature and dismissed it without prejudice. We agree with the Rial court. We find nothing ambiguous about the agreement. It is specific in its terms that if MCRA does not pay the note on its due date, September 30, 1987, Roth will pay $10,000.00. In Failing Co. v. Cardwell Investment Co., 190 Kan. 509, 376 P.2d 892 (1962), Justice (now Chief Justice) Schroeder stated: “The liability of a guarantor upon an obligation cannot be extended by implication, and he should not be held beyond the precise terms of his contract. (Kepley v. Carter, 49 Kan. 72, 30 Pac. 182; and Bank v. Bradley, 61 Kan. 615, 60 Pac. 322.) The same rule was stated in Dry Goods Co. v. Yearout, 59 Kan. 684, 54 Pac. 1062, in the following language: ‘. . . A contract to pay the debt of another should not be expanded beyond the fair import of its terms. A guarantor, like a surety, is a favorite of the law, and he is not held unless an intention to bind himself is clearly manifested; and his liability is never to be extended beyond the precise terms of his obligation. . . .’ (pp. 685, 686.)” pp. 515-16. The court also stated: “If the language of the contract of guaranty is clear and leaves no doubt as to the parties’ intention concerning the measure of the guarantor’s liability, the guarantor cannot be held liable in excess of the limitations that the contract language imposes.” pp. 516-17. The numerous arguments in support of the claim on the guaranty agreement have been considered and are found to be without merit. The trial court did not commit error in dismissing count II as being premature. Count IV asserts a cause of action against the defendant MCRA on the $150,000.00 note, which by its terms does not become due until September 30, 1987. It is the contention of appellants that as MCRA is defunct without assets, it is obvious that the note will not be paid on the due date and therefore, the action may be pursued prior to the due date based upon the theory of an anticipatory breach of contract and the failure to make the monthly interest payments. As previously pointed out, the principal and interest under the corporate note are not due until September 30, 1987. MCRA was not a party to the Cornett-Roth agreement which called for monthly payments of interest. Appellants rely upon Equity Investors, Inc. v. Ammest Group, Inc., 1 Kan. App. 2d 276, 563 P.2d 531, rev. denied 225 Kan. 843 (1977), wherein it is held: “If it is clear that one party to a contract is going to be unable to perforin it, the other party need not wait for the date when performance is due. He is entitled to treat the contract at an end and pursue his remedies.” Syl. ¶ 10. The reliance is misplaced. The rules stated in that case apply to bilateral executory contracts. In Upham v. Shattuck, 151 Kan. 966, 101 P.2d 901 (1940), the plaintiff sued upon several promissory notes which on their face were not yet due. The court stated: “It is readily observed that none of the notes was due when the action was brought. None of them contained a provision accelerating the due date for any reason. The rule is well settled that ‘A cause of action on a negotiable instrument does not accrue until the instrument matures, and a suit commenced before that time is premature.’ (8 Am. Jur. 535). See, also, 8 C.J. 398, 399; 10 C.J.S. 1160; National Bank v. Paper Mfg. Co., 58 Kan. 207, 48 Pac. 863. Appellant does not argue seriously that this is not the general rule. “However, appellant contends that since Clyde Shattuck has denied liability on the notes and has conveyed his property, without consideration, to the extent he has rendered himself insolvent, there has been an anticipatory breach of his contract to pay the debt evidenced by the notes, the effect of which is to accelerate the due date of the notes and authorize an action upon them at once. The doctrine sought to be applied is that of an anticipatory breach of contract. This doctrine applies to bilateral executory contracts (13 C.J. 651-655; 17 C.J.S. 973, 977; Wilson v. National Refining Co., 126 Kan. 139, 266 Pac. 941) — those which embody mutual and independent conditions and obligations. ‘It does not apply to mere promises to pay money, or other cases of that nature where there are no mutual stipulations.’ (12 Am. Jur. 973.)” p. 968. In Mabery v. Western Casualty and Surety Co., 173 Kan. 586, 250 P.2d 824 (1952), the plaintiff, who had contracted a severe illness while an employee of the defendant, sued for breach of an oral contract wherein it was contended the defendant had prom ised to pay Mabery $100.00 per month “as long as he should live or until he was able to return to work.” When the defendant ceased making the agreed-upon payments, plaintiff filed suit for a lump sum of $46,332.00, based upon his normal life expectancy. The court followed the earlier holding of Upham v. Shattuck, 151 Kan. 966, and in the opinion stated: “It is clear that the agreement, as pleaded, was an executory bilateral contract. Each party was to do certain things — plaintiff was to forbear bringing a tort action, and defendants were to make the payments. Plaintiff s own allegations affirmatively show that he has fully performed his part of the contract, that is, he permitted his supposed tort action to become barred. There was no obligation remaining for him to perform at the time of the alleged breach by defendants in November, 1950. The contract, although originally an executory bilateral one, thus became in law a simple unilateral promise for the payment of money at specified intervals, and, notwithstanding counsel for both sides have filed extensive briefs covering the field of damages for breach of contract, we confine ourselves to the application of the rule to the precise situation here presented. In 17 C.J.S., Contracts, § 472, p. 973, relating to rights of a promisee to sue for damages on the theory of anticipatory breach of contract, it is said: ‘While there exists some contrary opinion, by the weight of authority the doctrine of anticipatory breach is applicable only where the contract contains interdependent obligations, and does not apply when the contract is executory only on behalf of the other party. Hence, it does not govern actions on contracts to pay money at times specified, where one party has completely executed the contract, and it is executory only on the part of the other party.’ (p. 977.) “In Williston on Contracts, Revised Edition (1937), Vol. 5, § 1290, at page 3676 we find the following: ‘In a unilateral contract for the performance of several disconnected acts, or for the payment of several sums in instalments, or in a bilateral contract that has either been wholly performed on one side, or in which the promises are independent, a breach as to one or any number less than the whole of the promised acts is generally partial.’ “At § 1328, pp. 3734 and 3735, same volume, the author continues: ‘The propriety of not allowing an immediate action for anticipatory repudiation of all unilateral contracts has sometimes been questioned, but if, as has .been argued in previous sections, the whole doctrine was founded on a confusion of a right of action with a defense, it seems undesirable to enlarge the boundaries of the doctrine. Moreover, when the only requirement of the contract is the promisor’s future performance it more obviously is unjust to hold him liable to action immediately, than where performances are to be rendered by both parties. In the latter case, waiting until the agreed time has its effect on the whole agreed exchange; in the former case, allowing the promisee immediate recovery is nothing but a direct bonus to the promisee beyond what he was promised and a direct penalty to the promisor.’ “In 12 Am. Jur., Contracts, § 394, p. 973, the rule is stated: ‘The doctrine of anticipatory breach applies to contracts which embody mutual and interdependent conditions and obligations. Indeed, it has been said that it applies only to contracts involving interdependent obligations.. It does not apply to “mere promises to pay money, or other cases of that nature where there are no mutual stipulations.” ‘The general rule is that the doctrine of anticipatory breach does not apply to a contract which the complaining party has fully performed. . . ” 173 Kan. at pp. 590-591. Appellants argue that the MCRA note and the Cornett-Roth sale agreement should be read together to find that MCRA has breached its obligations. Assuming, arguendo, that such is true, the appellants’ action would be limited at this time to the past due interest payments. Neither the agreement or the promissory note contain an acceleration clause. It is clear that count IV was not one to collect past due interest but was to collect the full amount of the note. The trial court did not err in dismissing the cause of action without prejudice as being premature. One final matter remains in the principal case. During the course of the proceedings, the Cornetts filed a motion essentially identical to earlier motions which had been filed and ruled upon. At the time of the hearing on the later motion, it was overruled and the court assessed a $150.00 attorney fee against the Cornetts, stating: “[T]he refiling of essentially identical motions previously ruled upon by the Court constitutes spurious and frivolous claims. . . .” The assessment of attorney fees under K.S.A. 1982 Supp. 60-211 and K.S.A. 1982 Supp. 60-2007(fe) lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. We find no such abuse in this case. We now turn to the consolidated case in which judgment was granted in favor of Roth. In May of 1978, Clarence J. Simmons, as seller, contracted with the Cornetts to sell them a home in the Whispering Hills area of Johnson County. The property was subject to the payment of certain dues and assessments to the Whispering Hills Homes Association. The property was sold on a “Contract for Deed” in which the Cornetts agreed to pay $74,000.00, payable $14,000.00 cash and $500.00 per month including interest at 8% per annum on the unpaid balance until August 1, 1980, with the remaining unpaid balance due in full at that time. The contract provided that the purchasers would pay all taxes and special assessments. On August 1, 1978, the Cornetts assigned the contract for deed to Clifford R. Roth and Jamie L. Roth. On August 11, 1980, appellants repurchased the property from the Roths and entered into a new agreement with the Roths and took an assignment back of the original contract for deed. In the new documents the Cornetts agreed: “In consideration whereof, the Assignees [Cornetts] shall assume all obligations under said Assignment of Contract for Deed and the original Contract for Deed.” The principal balance due August 1, 1980, was not paid and certain homes association assessments had not been paid during the time the Roths had the property and were filed as liens against the property. Simmons, the original seller, brought an action to foreclose on the original contract and the Cornetts cross-claimed against Roth for the amount of the unpaid homes association liens. The trial court found that in the final agreement the Cornetts clearly assumed all of the outstanding obligations under the original contract for deed and the assignment thereof, which included the unpaid homes association assessments. We agree and find no error in the entry of judgment in favor of Roth. The judgment is affirmed.
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The opinion of the court was delivered by Lockett, J.: Plaintiffs Paul and Betty Dutoit, and Dutoit Construction Company, a Missouri corporation (Dutoits), appeal from the dismissal of their action challenging special assessments against their property in Johnson County, Kansas. The Blue River Sewer Sub-District No. 5 (Blue River) was created under the provisions of K.S.A. 19-2704 et seq. Property owners representing more than 51% of the acreage within the sewer and taxing district petitioned the Board of County Commissioners of Johnson County, Kansas (Board) for the creation of Blue River and the building of main sewers within the district. After the preliminary plans, survey and feasibility studies were made, the Board scheduled a hearing to create the proposed district. Notice of the hearing was mailed to all the property ownérs within the proposed district more than ten days prior to the hearing. Notice was published once a week for two consecutive weeks in a newspaper having general circulation within the district. The Board held a public hearing on June 26,1978, at 6:30 p.m. and the resolution creating Blue River was adopted. The first enlargement of Blue River was made without notice and hearing as provided by statute since' 100% of the property owners signed the original petition. The second enlargement was approved by resolution of the Board on July 3, 1979, after notice had been mailed to all of the property owners within the proposed addition to the district. Notice was published once a week for two consecutive weeks in the Olathe Daily News. On July 3, 1979, a resolution was adopted by the Board approving the second enlargement of Blue River. The plaintiffs claim the notice procedures of K.S.A. 19-2704 et seq. were not followed in the creation and second enlargement of Blue River. Property owned by the Dutoits was brought into the sub-district by' the second enlargement. Once construction had been completed and all the costs were ascertained, the Board assessed the property within the district; A hearing was scheduled to allow the property owners an opportunity to challenge their individual assessments. Notice of the hearing was sent, as provided by statute, 14 days prior to the hearing on January 5, 1982. Notice was also published once each week for two consecutive weeks prior to the date of hearing. At the public hearing held on January 5, 1982, the Board, by resolution, approved and adopted the assessments made under the resolution dated December 1, 198L On January 15,1982, the resolution was filed. On January 26,' 1982, the Dutoits filed a petition to set aside assessments relative to Blue River. The Dutoits requested the court to enjoin the assessments, enter an order setting aside the enlargement of the sewer district, and exclude plaintiffs’ property from the sewer district. On February 24, 1982, defendants filed their answer to the plaintiffs’ petition. June 30,1982, the first amended petition was filed on behalf of the Dutoits asserting their cause of action both individually and on behalf of a class of persons' similarly situated. The first amended petition requested the court to set aside the entire proceedings of the Board relative to the creation of Blue Rivér and the subsequent assessment to the landowners within the sub-district. Leáve of the court to allow the plaintiffs to amend their petition was not obtained pursuant to K.S.A. 60-215(a). August 9, 1982, defendants filed a motion to dismiss pursuant to K.S.A. 60-212(5) with a memorandum in support. October 7, 1982, the Dutoits filed a motion for leave to amend and a second amended petition containing an additional allegation of a violation of 42 U.S.C. § 1983 (Supp. V 198T); Defendants filed a subsequent memorandum alleging: (1) The plaintiffs do riot have sufficient standing to challenge the actions of the Board with regard to the creation and/or enlargement of Blue River; (2) the claims of the plaintiffs were barred by the statute of limitations and laches; (3) the plaintiffs had failed to properly perfect their appeal by filing a bond pursuant to K.S.Á. 19-223; (4). the plaintiffs’ cause of action should be dismissed for failure to properly join additional parties; (5) plaintiffs’ action could not be main tained as a class action; and (6) the plaintiffs failed to state a cause of action under 42 U.S.C. § 1983 (Supp. V 1981). At the commencement of oral argument upon the defendants’ motion to dismiss, the court acknowledged that the first and second amended petitions were on file. The court found that a preliminary hearing had not been held to determine if the plaintiffs should be allowed to amend the original petition. On December 20, 1982, the court dismissed plaintiffs’ entire action for failure to state a claim for which relief could be granted. The plaintiffs appeal. The dismissal in this case was pursuant to K.S.A. 60-212(h)(6), failure to state a claim upon which relief can be granted. The case of Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. ¶ 2, 479 P.2d 875 (1971), states the standard for this type of dismissal: “Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in his favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, 430, 520 P.2d 1197 (1974). It is not necessary to spell out a legal theory of relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977). The original petition filed by the plaintiff seeking to enjoin the assessments and set aside the enlargement of the sewer district raises several issues. The trial court held K.S.A. 19-223 barred the plaintiffs’ petition since plaintiffs failed to execute a bond with sufficient security as required by the statute. The statute provides: “Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.” K.S.A. 19-223 provides the exclusive method by which a district court may review a judicial or quasi-judicial decision of a board of county commissioners. Concannon v. Board of Linn County Comm’rs, 6 Kan. App. 2d 20, 21, 626 P.2d 798, rev. denied 229 Kan. 669 (1981). The statute affords jurisdiction only when a board of county commissioners has engaged injudicial or quasi-judicial action. Gonser v. Board of County Commissioners, 1 Kan. App. 2d 57, 60, 562 P.2d 102 (1977). The plaintiffs claim the special assessments against their property are not fair, just or equitable, and that the sewer improvements do not benefit their property to the extent of the assessment. Special assessments are charges imposed by a local government upon the owners of property specially benefited by a local public improvement. Becker v. City of Wichita, 231 Kan. 322, 324, 644 P.2d 436 (1982). The extent to which property has received special benefits from a public improvement is a question of fact legislative or administrative in nature. Becker v. City of Wichita, 231 Kan. 322, Syl. ¶ 2. K.S.A. 19-223 is not applicable when one appeals a legislative-type decision by a board of county commissioners. The appropriate statutes in this action are K.S.A. 60-907 and K.S.A. 19-2705. K.S.A. 60-907 and its predecessor statute, G.S. 1949, 60-1121, have been the avenue employed in challenging special assessments. See Schulenberg v. City of Reading, 196 Kan. 43, 410 P.2d 324 (1966); Hurley v. Board of County Commissioners, 188 Kan. 60, 360 P.2d 1110 (1961). K.S.A. 60-907 provides in part: “(a) Illegal tax, charge or assessment. Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same. “(d) Bond. Where it is shown to the judge that continued procedure under the illegal acts may render the proceedings moot, the judge may, in his or her discretion grant a temporary injunction without bond being required.” The statute furnishes a remedy when a taxpayer’s pocketbook is affected, Seltmann v. Board of County Commissioners, 212 Kan. 805, 808, 512 P.2d 334 (1973), and the requirement of a bond is discretionary with the judge. Plaintiffs state a claim upon which relief could be granted in challenging their special assessments pursuant to K.S.A. 60-907. The time period a party has to challenge a special assessment pursuant to K-S.A, 19-2704 et seq. is set forth in K.S.A. 19-2705, which provides in pertinent part: “No suit to set aside the specific special assessments herein provided for, or to enjoin the making of the same, shall be brought nor any defense to the validity thereof be allowed, after the expiration of thirty (30) days from the time when the amount due on each lot or piece of ground liable for such assessment is ascertained and assessed,” The Board approved assessments January 15, 1982. The plaintiffs filed their action on January 26, 1982. The plaintiffs’ claim challenging the special assessments is within the statutory time limitation of K.S.A. 19-2705. In the original petition the plaintiffs also seek to set aside the July 3, 1979, enlargement of the sewer sub-district, which brought the plaintiffs’ property into the district. The plaintiffs allege notice of the enlargement was not given pursuant to K.S.A. 19-2704a, and that the petition requesting enlargement did not properly describe the plaintiffs’ assessed property. See K.S.A. 19-2704a. They claim they did not learn of their property’s inclusion in the sewer district until December, 1981. The Board contends (1) K.S.A. 19-223 bars the claims; (2) that the plaintiffs lack standing to challenge the enlargement; and (3) that the doctrine of laches applies. K.S.A. 19-223 is inapplicable because the power to create and enlarge sewer districts involves legislative decisions, not a judicial or quasi-judicial decision over which the statute controls review. See Schulenberg v. City of Reading, 196 Kan. at 52. The defendants note the plaintiffs named the Board of County Commissioners of Johnson County, Kansas, sitting and acting as the governing body of Blue River Sewer Sub-District No. 5, as one of the defendants in the action. They contend the plaintiffs thereby admit the corporate existence of the sewer district. The plaintiffs were only complying with a statutory requirement. K.S.A. 19-105 requires that in all suits by or against a county, the name in which the county shall sue or be sued is the “board of county commissioners of the county of . . . .” The plaintiffs had not admitted the corporate existence of Blue River. K.S.A. 60-907 does not grant taxpayers the right to question the legality of the corporate existence of political subdivisions or municipal corporations in actions brought to enjoin the levy or collection of taxes. But, the rule is limited to actions attacking the corporate existence of the taxing district which levied the taxes. It has no application when the district created has no attributes of corporate existence and levies no taxes. Schulenberg, 196 Kan. at 51. A sewer district created pursuant to K.S.A. 19-2704 et seq. is not granted corporate existence as is a sewer district created pursuant to K.S.A. 19-2788. See Bishop v. Sewer District No. 1, 184 Kan. 376, 336 P.2d 815 (1959) (which involved a sewer district established under what is now K.S.A. 19-2788). (The 1983 legislature has repealed K.S.A. 19-2704 to 19-2715e and K.S.A. 19-2787 to 19-27,126 effective July 1, 1983.) Plaintiffs would have standing to challenge the enlargement of the sewer district. The defendants contend the doctrine of laches bars the plaintiffs’ attack against the second enlargement of the sewer district. The doctrine of laches is an equitable device designed by courts to bar stale claims. Jones v. The Grain Club, 227 Kan. 148, 153, 605 P.2d 142 (1980). For the doctrine to apply, the delay must have caused disadvantage to the other party. Clark v. Chipman, 212 Kan. 259, Syl. ¶ 8, 510 P.2d 1257 (1973). The second enlargement occurred in July, 1979. The plaintiffs filed suit in January, 1982, claiming in their petition they did not learn of their inclusion in the sewer district until December, 1981, and that statutory notice procedures were not followed. Four years have passed since the creation of the original sewer district; the sewer lines have been constructed and installed. Plaintiffs now attempt to assert all the actions taken to create, construct and install the sewer lines are void. In the case of Kirsch v. City of Abilene, 120 Kan. 749, 244 Pac. 1054 (1926), the Supreme Court had an opportunity to apply the doctrine of laches in a case very similar to the one at bar. In this particular case, the City of Abilene had purchased a number of city lots for the construction of a public library, city hall and auditorium. After the property was purchased, and the construction bids had been let, petitioners brought an action to enjoin the construction of the public building. In affirming the trial court’s decision to refuse the injunction, the court stated: “[Ajssuming that the plaintiffs had a right to maintain injunction, we will pass to the interposed defense that the laches of plaintiffs bars the relief which they asked. They are invoking the jurisdiction of equity, and under the maxium that ‘he who seeks equity, must do equity,’ they are only entitled to such relief as is equitable and just under the circumstances. A court will grant such relief where conscience, good faith and reasonable diligence exists, and has been exercised, but where these are lacking the relief will be denied. (10 R.C.L. 395.) If a party sleeps on his rights or unnecessarily delays action until the rights of others have intervened, or conditions have been changed so that it would be inequitable to enforce the right asserted, relief will be denied on the ground of laches. If the plaintiff stands by and remains passive while the adverse party incurs risks, enters into obligations and makes large expenditures, so that by reason of the changed conditions disadvantage and great loss will result to the adverse party which might have been avoided if the plaintiff had asserted his claim with reasonable promptitude, there are grounds for declining to grant the relief.” 120 Kan. at 751-52. Emphasis supplied. Plaintiffs’ attempt to set aside the second enlargement of the sewer district is barred by the doctrine of laches. The plaintiffs’ original petition seeking to set aside a specific special assessment stated a cause of action upon which relief may be granted. The plaintiffs’ amended petitions raise new issues. Two major points arise out of the first amended petition: (1) The plaintiffs attempt to amend their action to a class action, and (2) they challenge the creation of Blue River. An answer was filed in this action before the plaintiffs attempted to amend their petition. Therefore, leave of the court is needed for the pleading to be amended pursuant to K.S.A. 60-215(a). The statute provides such leave should be freely given when justice so requires. The corresponding federal rule was discussed in 6 Wright & Miller, Federal Practice and Procedure: Civil § 1487 (1971): “The liberal amendment policy prescribed by Rule 15 (a) does not mean that leave will be granted in all cases. Indeed, the text of the rule makes it clear that permission to amend is not to be given automatically but is allowed only ‘when justice so requires.’ However, the court may not impose arbitrary restrictions on the availability of amendments or use its discretion in a way that undermines the basic policy of the rule. “The decided cases reveal that a federal court will balance several factors in deciding whether leave to amend should be granted. The Supreme Court, in its opinion in Foman v. Davis [371 U.S. 178, 9 L.Ed.2d 222, 83 S.Ct. 227 (1962)], enunciated the following general standard, which is to be employed under rule 15 (a) by the district courts: “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be ‘freely given.’ [371 U.S. at 182.] “Perhaps the most important factor listed by the Court and the most frequent reason for denying leave to amend is that the opposing party will be prejudiced if the movant is permitted to alter his pleading. Conversely, if the court is persuaded that no prejudice will accrue, the amendment should be allowed. Thus, the facts of each case must be examined to determine if the threat of prejudice is sufficient to justify denying leave to amend. In order to reach a decision on this point, the court will consider the position of both parties and the effect the request will have on them. This entails an inquiry into the hardship to the moving party if leave to amend is denied, the reasons for the moving party failing to include the material to be added in the original pleading, and the injustice resulting to the party opposing the motion should it be granted. “For example, if the court determines that the proposed amendment would result in defendant being put to added expense and the burden of a more complicated and lengthy trial or that the issues raised by the amendment are remote from the other issues in the case and might confuse or mislead the jury, leave to amend may well be denied. How much additional expense or confusion will result in a denial cannot be quantified but must depend on the facts of the particular action.” pp. 427-30. In this case the amendment would drastically alter the nature of the action. The amended petition alleges approximately 200 landowners would be included in the class. The defendants will be prejudiced if the amendment to a class action is permitted. They will have to defend 200 assessments instead of two. The plaintiffs do not show any reason why class action claims could not have been filed in the original petition, and over five months passed from the filing of the original action until the filing of the first amended petition containing class action claims. Weighing the circumstances, the class action claims were properly dismissed. Future efforts to amend a nonclass action to a class action will depend upon the specific circumstances of the case. The plaintiffs’ challenge to the creation of Blue River was also properly dismissed by the trial court. The plaintiffs’ property was not included in the sub-district as it was originally constituted. They lack standing to challenge the creation of the sewer sub-district. Standing to sue means that a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Sierra Club v. Morton, 405 U.S. 727, 731-32, 31 L.Ed.2d 636, 92 S.Ct. 1361 (1972). K.S.A. 60-907 provides for injunctive relief from illegal assessments, but the party filing an action pursuant to the statute generally must be the one against whom an illegal assessment is being levied. The original sewer sub-district did not include the plaintiffs’ property. The plaintiffs cannot challenge the creation of the sub-district because they were not sufficiently affected by the creation. No assessment could have been levied against them by the original sewer sub-district. The United States Supreme Court has held § 1983 protects property rights as well as personal rights. The statute provides a forum for redress for the wrongful deprivation of property by persons acting under color of state law. Lynch v. Household Finance Corp., 405 U.S. 538, 552, 31 L.Ed.2d 424, 92 S.Ct. 1113, reh. denied 406 U.S. 911 (1972). Justice Stewart wrote in that case: “Such difficulties indicate that the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right, whether the ‘property’ in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924); J. Adams, A Defence of the Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121-132 (1942); 1 W. Blackstone, Commentaries *138-140. Congress recognized these rights in 1871 when it enacted the predecessor of §§ 1983 and 1343(3). We do no more than reaffirm the judgment of Congress today.” In Norwood v. Baker, 172 U.S. 269, 279, 43 L.Ed. 443, 19 S.Ct. 187 (1898), the Supreme Court stated: “In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. We say ‘substantial excess,’ because exact equality of taxation is not always attainable.” This court has held mathematical precision is not required when balancing the assessment and the benefit. Becker v. City of Wichita, 231 Kan. at 325. In the plaintiffs’ second amended petition they assert claims pursuant to 42 U.S.C. § 1983 (Supp. V 1981). The statute provides in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The plaintiffs allege the Board; under color of state law, took the plaintiffs’ property without due process or just compensation. The plaintiffs’ claims under the federal statute do state claims upon which relief may be granted. See Shouse v. Pierce County, 559 F.2d 1142 (9th Cir. 1977). This amendment is permitted under the liberal standard set by K.S.A. 60-215(c). The defendants are not greatly prejudiced by the amendment because the claim arises from the same conduct of the defendants which formed the basis of the original petition. The action will be much the same whether or not the amendment is allowed. The defendants contend the thirty-day limitation of K.S.A. 19-2705 applies to the 42 U.S.C. § 1983 (Supp. V 1981) claims. In a § 1983 action, generally the limitation period of the state action most similar to the facts of the particular § 1983 action should be utilized. Justice Holmes wrote in Miller v. City of Overland Park, 231 Kan. 557, 559-60, 646 P.2d 1114 (1982): “There is no congressionally mandated statute of limitations for § 1983 actions. Federal courts are instructed to look to state law to determine such limitations. Board of Regents v. Tomanio, 446 U.S. 478, 64 L.Ed.2d 440, 100 S.Ct. 1790 (1980). In fact, 42 U.S.C. § 1988 mandates that federal courts apply the law of the state in a § 1983 action ‘so far as the same is not inconsistent with the Constitution and laws of the United States.’ Although the federal courts in civil 'rights actions apply the state period of limitations for the most analogous cause of action consistent with the facts asserted to support the civil rights claim, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 44 L.Ed.2d 295, 95 S.Ct. 1716 (1975), Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 1978), there is no bar to a state Supreme Court interpreting or construing any of its own limitations statutes as specifically applying to particular § 1983 actions, without resort to analogy.” In Shouse v. Pierce County, 559 F.2d 1142, a § 1983 action was filed to challenge the constitutional validity of the formation of a utility district. A Washington statute contained a thirty-day limitation period during which the creation of the utility district could be challenged. The Ninth Circuit Court of Appeals rejected the thirty-day limitation period stating: “When we select the state statute from the available candidates, we try to choose that statute which applies to those state actions that resemble our Section 1983 action and that are sufficiently generous in the time periods to preserve the remedial spirit of federal civil rights actions.” 559 F.2d at 1146. See Childers v. Ind. Sch. Dist. No. 1 of Bryan County, 676 F.2d 1338, 1342-43 (10th Cir. 1982). The suit contemplated in K.S.A. 19-2705 is different than an action pursuant to 42 U.S.C. § 1983 (Supp. V 1981). An action under 19-2705 to set aside assessments will not support a claim for money damages. In establishing a thirty-day limitation period the legislature seeks to have financing for sewer projects finalized as swiftly as possible. A § 1983 action would not delay financing arrangements and could be filed at a later time. A thirty-day limitation period is not sufficiently generous to preserve the remedial spirit of 42 U.S.C. § 1983 (Supp. V 1981). K.S.A. 60-513(a) has sometimes been utilized as the statute of limitations in § 1983 actions. See Miller v. City of Overland Park, 231 Kan. at 561. The statute provides in pertinent part: “The following actions shall be brought within two (2) years: “(4¡TAn action for injury to the rights of another, not arising on contract, and not herein enumerated.” The statute is applicable in this case, and the action accrued when the assessments were made January 15, 1982. The plaintiffs’ § 1983 action has been timely filed. The Dutoits allege when Blue River was created, the Board estimated the cost for construction of the main lines for the sewer system would be approximately 1.1 million dollars, but the final project cost was closer to 3.8 million dollars. The assessment against the Dutoits’ property totaled $52,953.58 for the main lines of the sewer project. Still remaining to complete the sewer system is the construction of the sewer plant and the individual landowners’ connections to the system, which cost will also be taxed against the individual landowners. The issues raised in this case involve the power of the Board to act. The wisdom of the defendant Board’s utilization of its power is not a legitimate subject for judicial review. We can understand the landowners’ concern over the major escalation in their tax burden arising from the construction of the sewage system. Dutoits do have a right under § 1983 to protect their property rights. The statute provides relief to the landowner if the Board acting under the color of the law wrongfully deprived them of their property. The dismissal of the class action claims and the claims challenging the creation and enlargement of the Blue River Sub-District No. 5 is affirmed. The dismissal of plaintiffs’ claim contesting their assessments and their 42 U.S.C. § 1983 (Supp. V 1981) claim is reversed. These claims are remanded to the trial court for further proceedings consistent with this opinion. Holmes, J., dissenting.
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The opinion of the court was delivered by Lockett, J.: This is an action for damages for personal injuries suffered by the plaintiff, Robert C. Dauffenbach, in an altercation with two officers of the Wichita Police Department. The defendants are the two police officers, Victor Cawthorn and Robert K. Leonard, and the City of Wichita. Dauffenbach was rendered a quadriplegic as a result of the injuries he sustained. This case was tried to the court and judgment entered for the defendants. Dauffenbach appealed, contending that the force used by the two officers in arresting him was excessive as a matter of law; that the force used by the two officers was likely to cause great bodily harm as contemplated by K.S.A. 21-3215; and that the trial judge used the wrong standard of proof in determining the defendants had no liability. The defendants cross-appeal, contending the trial court erred in not striking Dauffenbach’s amended petition because it claimed damages for ordinary negligence; that it also stated a cause of action on a theory (negligence) different from that (assault and battery) in the original petition; and it did not relate back to the date the original petition was filed as provided for in K.S.A. 60-215(c), because the statute of limitations for assault and battery is one year and it had run on the cause of action stated in the original petition. A special panel of the Court of Appeals consisting of Abbott, P.J.; Steven P. Flood, district judge, assigned; and John W. Brookens, district judge retired, assigned, reversed the trial court in a 2-1 decision. 8 Kan. App. 2d 303, 657 P.2d 582 (1983). Appellees’ Petition for Review was accepted by this court. Judge Abbott wrote the majority opinion for the panel and for the most part it has been incorporated into this opinion. How the injury occurred was disputed. The trial judge chose to believe the police officers’ version, which was his prerogative. Thus we set forth the version accepted by the trial judge as to what occurred. At approximately 3:30 a.m. on June 7, 1976, the two police officers were dispatched to an apartment building at 515 North St. Francis, Wichita, Kansas, where they apprehended two persons who were attempting to pry open the trunk of an automobile parked in the apartment building’s parking lot. Dauffenbach owned the apartment building and occupied one of the apartments. The two police officers arrived at the scene in separate cars. One of the police vehicles partially blocked the driveway to the parking lot. The two officers and the two persons apprehended were in the vicinity of the police vehicle that was partially blocking the driveway. The police vehicle was on public property and one of its front doors was open. Dauffenbach arrived home at that moment and attempted to drive over the curb and past the police vehicle. In doing so, he struck the open door, causing very minor damage to the door; but the coat sleeve of one of the apprehended persons caught between the open door and Dauffenbach’s car, and the impact ripped the coat sleeve and left an abrasion on the person’s arm. Dauffenbach demanded in foul and abusive language that the officers get off his parking lot. He then drove his car to the rear of the parking lot, exited the vehicle and walked toward an approaching officer. The two met at approximately the center of the parking lot near a light pole. Dauffenbach was never advised at any time prior to his being injured that he was under arrest. He was advised that he had been involved in an accident with a police vehicle which also involved a pedestrian who was a prisoner, and that the officer wanted to see his driver’s license. Dauffenbach removed a credit card from his billfold and threw it at the officer. The officer picked it up from the ground, returned it to Dauffenbach and again requested his driver’s license. Dauffenbach took his wallet from his pocket, opened it, and attempted to hand it to the officer. Dauffenbach was advised the officer could not handle his wallet and he was requested to remove his driver’s license from the wallet. Dauffenbach, making vile statements to the officer, turned and walked away. By this time, the second officer had arrived at the point of altercation with Dauffenbach. Each officer took him by an arm and backed him against the light pole in the center of the parking lot. Dauffenbach was then advised of the accident with the police vehicle, that he might be drunk and that he must produce his driver’s license. Dauffenbach acted as if he were reaching for his wallet, but when the officers released him he took a swing at Officer Cawthorn and missed. Dauffenbach was 58 years old, six feet one inch in height and weighed 180 pounds. In the officers’ opinion, Dauffenbach was intoxicated. Officer Cawthorn grabbed Dauffenbach’s arm and struck him in the midsection at the belt line; Officer Leonard grabbed the other arm. Dauffenbach was backed up against the light pole and was again requested to produce his driver’s license. Dauffenbach appeared to be cooperating and the officers again released their hold on him. Instead of producing his driver’s license, Dauffenbach shoved Officer Cawthorn and drew back his arm as if to swing at the officer. Officer Leonard grabbed Dauffenbach’s left arm, flipping Dauffenbach over his shoulder. Dauffenbach landed on his forehead on a rock-surfaced parking lot, from which he suffered the major injury of hyperextension of the neck superimposed on a preexisting hypertrophic spinal condition resulting in his paralysis. At the time of the confrontation between Dauffenbach and the two officers, Officer Leonard had on his person a gun and holster, an ebonite baton and a can of Mace. Officer Cawthorn had on his person a handgun and a baton. Based on the above facts, the trial judge made the following conclusions of law: “1. The defendant police officers were authorized to detain the plaintiff, to request his driver’s license, and after being assaulted by him, were authorized' to subdue and arrest him. “2. The force used by the defendants in subduing the plaintiff was not ‘deadly force’ as contemplated by K.S.A. 21-3215, was not excessive, was not negligently applied, but was reasonable under the circumstances existing at the time. “3. The injuries sustained by the plaintiff were not purposefully and intentionally applied and were neither contemplated nor intended. “4. The defendant Officers Cawthorn and Leonard acted in good faith and without malice in the premises. “5. The defendants were not negligent in the premises and, therefore, all the defendants herein are entitled to judgment on the issue of liability. “6. A peace officer is presumed to have acted properly until said presumption is overcome by clear and convincing evidence. “7. In addition, a peace officer is the judge of the force to be employed under the circumstances and he will not be deemed to have exercised excessive force unless it appears that he abused his power and authority. “8. Plaintiff has failed to carry the burden of proof that the force used was excessive or abusive. “9. Having determined that the force used by the defendants was justified, not excessive, not abusive, not negligent, and reasonable under the circumstances, and that the defendants should have judgment herein, it is unnecessary for this court to determine whether or not the comparative fault statutes of the State of Kansas apply to the facts in this case; however, the Court finds, as a matter of law, that the plaintiff s own negligence was to such a degree that had the defendant police officers been negligent, the plaintiff would nonetheless be barred from recovery herein. “10. The Court generally then finds for the defendants and against the plaintiff on all of the issues herein.” Before turning to the issues presented by Dauffenbach’s appeal, we will dispose of the defendants’ cross-appeal. Dauffen bach filed his action on April 13, 1978, requesting actual and punitive damages. A motion to amend the petition to add a third count alleging a civil rights violation based on 42 U.S.C. § 1983 was filed and granted. An amended petition was filed on November 10,1980. It alleged three counts, one for negligence, one for civil rights violations under 42 U.S.C. § 1983 and one for negligence against the City of Wichita based on its failure to train and supervise its police officers. The City of Wichita filed a motion to strike, alleging the amended petition was changed from that which the trial court had previously authorized and further that Dauffenbach was attempting to change the theory of his suit to the defendants’ prejudice. The trial judge cited Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976), as authority and concluded that if the amended petition did set forth new or different claims, they arose out of the conduct, transaction or occurrence set forth in the original petition. He overruled defendants’ motion to strike, and allowed Dauffenbach’s first amended petition to be filed. Whether to allow an amended petition to be filed lies within the sound discretion of the trial judge. The issue was presented and the trial court had discretionary authority to allow an amended petition, irrespective of whether the pleading filed had or had not been previously authorized. Key v. Clegg, 4 Kan. App. 2d 267, Syl. ¶ 2, 604 P.2d 1212, rev. denied 227 Kan. 927 (1980). As we view Dauffenbach’s original petition, it states a cause of action for negligence under K.S.A. 60-208(c). He contends the defendants did “negligently assault, beat and injure” him and that any “negligence” on the part of the officers “is likewise the negligence” of the city. The trial court did not err in allowing the amended petition to be filed. Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 365-66, 388 P.2d 824 (1964). In considering Dauffenbach’s arguments, we note this cause of action accrued prior to the effective date of the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., and is subject to the rules enumerated in Thome v. City of Newton, 229 Kan. 375, 624 P.2d 454 (1981), and Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978). The Gorrell case abolished municipal immunity for the negligent acts of its officers or employees in the performance of governmental function. In Gorrell, Justice Miller pointed out that the Supreme Court’s change in position “does not establish liability for acts or omissions which are otherwise privileged or are not tortious. Instead, it places municipalities, for the most part, on an equal footing with individuals and corporate entities so far as responsibility for injuries or damages caused by negligence is concerned.” 223 Kan. at 650. In Thome, the Supreme Court stated that the abolishment of governmental immunity for simple negligence would not constitute a bar to any other appropriate defense. 229 Kan. at 380. Police officers have immunity from liability on claims arising from performance or nonperformance of an officer’s general duties to prevent crime and enforce the laws. Liability arises only where an officer breaches a specific or special duty owed an individual. Such a special duty arises in two circumstances: (1) where there is an affirmative act by the officer causing injury; and (2) when a specific promise or representation by the officer is made under circumstances creating justifiable reliance. McGeorge v. City of Phoenix, 117 Ariz. 272, 572 P.2d 100 (Ct. App. 1977); Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (Ct. App. 1979). Examples of situations within the first category are placing an individual under arrest or committing an assault. A line of Kansas cases which recognize that an officer is liable for false arrest or the unnecessary use of force lends support to the existence of a special duty arising from such affirmative acts. Bradford v. Mahan, 219 Kan. 450, 548 P.2d 1223 (1976); Gardner v. McDowell, 202 Kan. 705, 451 P.2d 501 (1969); Bukaty v. Berglund, 179 Kan. 259, 294 P.2d 228 (1956). The question in this case is not immunity, but whether a tort was committed. That an injury occurs as a result of an action taken by a municipal employee is not per se a tort. The applicable law must be applied to the facts in each case to determine tort liability. Here we have two questions concerning whether the trial judge applied the correct law to the facts. The trial judge presumed that á law enforcement officer acts properly in the amount and type of force used unless the presumption is overcome by clear and convincing evidence. The trial court was correct when it determined that a police officer is presumed to have acted properly until that presumption is overcome. There is a general presumption that a public official will act fairly, reasonably and impartially in the performance of the duties of his office. Gladen v. State, 196 Kan. 586, 590, 413 P.2d 124 (1966). The relevant Kansas statutory law concerning presumptions is as follows: “A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.” K.S.A. 60-413. “Subject to K.S.A. 60-416, and except for presumptions which are conclusive or irrefutable under the rules of law from which they arise, (a) if the facts from which the presumption is derived have any probative value as evidence of the existence of the presumed fact, the presumption continues to exist and the burden of establishing the nonexistence of the presumed fact is upon the party against whom the presumption operates; (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved.” K.S.A. 60-414. The defendants here argue the trial judge found them free of negligence, and the conclusions of law that the presumption must be overcome by clear and convincing evidence is mere surplusage. We cannot agree, and conclude that if that standard is incorrect then a new trial must be ordered. Defendants contend that mere negligence, without malice or wanton or gross misconduct, does not render a law enforcement officer liable for damages for acts committed within the scope of his or her employment, and cite Hendrix v. City of Topeka, 231 Kan. 113, 643 P.2d 129 (1982); Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 536 P.2d 54 (1975); Kern v. Miller, 216 Kan. 724, 533 P.2d 1244 (1975); Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981). We deem those cases to be not applicable to the facts in this case. Those cases deal with administrative acts as opposed to acts of negligence resulting in personal injuries, or with exceptions to governmental immunity. The general rule is that a law enforcement officer who is making an arrest for a misdemeanor committed in his or her presence has the right to use reasonable force to effect the arrest. The officer has discretion to determine the degree of force required under the circumstances as they appear to the officer at the time. The reasonableness of the force used is a question for the trier of facts. The test to determine the actual amount of force necessary is not one of hindsight. The degree of force used may be reasonable even though it is more than is actually required. The officer may not, however, use an unreasonable amount of force or wantonly or maliciously injure a suspect. For a general discussion on the subject, see Annot., Arrest of Misdemeanant—Intentional Force, 83 A.L.R.3d 238. See also Lewis v. Marmon, 8 Kan. App. 2d 277, 655 P.2d 953 (1982). Defendants rely on foreign cases to support the trial court’s conclusion of law that a peace officer is presumed to have acted properly until that presumption is overcome by clear and convincing evidence. See, e.g., Wirsing v. Krzeminski, 61 Wis.2d 513, 213 N.W.2d 37 (1973). Those cases, in our opinion, represent the minority view. 83 A.L.R.3d at 248-49. The comment a to Restatement (Second) of Torts § 132 (1965) states in essence that an officer is not liable unless the force used is “clearly excessive.” The key question is whether to continue following the preponderance of evidence standard applied to negligence and tort actions or adopt, as the trial court did, a clear and convincing standard in determining whether the police officers breached a duty. By presuming the officers acted fairly, reasonably and impartially in the performance of their duty, we have placed the burden on the plaintiff to establish the use of excessive force by an arresting officer. In addition, the excessiveness of the force employed is an element of the claim that must be proven by the plaintiff, rather than a defense of the officer to show the force used was not excessive. The proper burden of proof in this case is still by a preponderance of the evidence. For prior cases failing to adopt the clear and convincing standard see: Bradford v. Mahan, 219 Kan. 450; Gardner v. McDowell, 202 Kan. 705; Bukaty v. Berglund, 179 Kan. 259. The nature and importance of the functions of a law enforcement officer in investigating criminal activity and in making arrests are important to the general public. Conversely, the public should be protected from overréaction by law enforcement officers. It is not the duty of a law enforcement officer to punish a suspect by using unreasonable force or to wantonly or maliciously injure the suspect. A public citizen should be compensated when unreasonable force by a law enforcement officer causes an injury whether the injured party is a pillar of the community, an incoherent drunk or mentally ill. We see no reason to make a distinction between a traffic accident which involves a vehicle driven by a law enforcement officer (or the felling of a tree) and the unreasonable use of force in making an arrest. We believe the general rule best serves society’s interests and is most consistent with legislative intent as expressed in K.S.A. 21-3215(1): “A law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another person, or when he reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested has committed or attempted to commit a felony or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.” The conclusion of law that Dauffenbach failed to carry the burden of proof that the force used was excessive or abusive was based on the trial judge’s conclusion that a peace officer is presumed to have acted properly until that presumption is overcome by clear and convincing evidence. The latter conclusion permeates all the trial judge’s other conclusions of law concerning liability, and a new trial with the burden of proof to be a preponderance of the evidence is required. Dauffenbach argues that under the facts of this case K.S.A. 21-3215 does not permit a law enforcement officer who is making an arrest for a misdemeanor to use such force as is likely to cause death or great bodily harm, but that the force used here was likely to and did cause great bodily harm as a matter of law. As we view K.S.A. 21-3215(1), it follows the majority rule concerning arrests of misdemeanants. It allows a law enforcement officer to use any force he or she believes necessary to effect an arrest, but prohibits the use of force which is likely to cause death or great bodily harm except to prevent death or great bodily harm to the officer or another person (the effect is a liberalized self-defense rule), or unless the suspect is attempting to escape by the use of a deadly weapon or otherwise indicates he or she will endanger human life or inflict great bodily harm unless arrested without delay. The purpose of the statute is to set limits for law enforcement officers, and if the limits are observed an officer has a defense in a criminal action. We see no reason why the civil liability of a law enforcement officer should not be coextensive with his or her criminal liability. Dauffenbach argues that the officer, using a jujitsu hold, grabbed Dauffenbach’s arm and threw him over the officer’s shoulder. The officer did not release Dauffenbach’s arm until Dauffenbach struck the ground. The parking lot was covered with rock. The police officers’ testimony indicated they thought Dauffenbach was drunk and incapable of harming them. Generally it is a question of fact whether the force used is likely to cause death or great bodily harm, and we cannot say as a matter of law that the force used here was likely to cause great bodily harm and thus was negligence per se. The Court of Appeals’ decision reversing and remanding the case for a new trial is affirmed.
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The opinion of the court was delivered by Prager, J.: This is an action on a life insurance policy brought against the defendant, Prudential Insurance Company of America, by the contingent beneficiary after the insurance company had previously paid the designated primary beneficiary. The named insured was Jan E. Fenton, wife of Norman R. Fenton, who was the primary beneficiary under the policy. The contingent beneficiary was the plaintiff, Eric Harper, the infant child of Jan E. Fenton. The facts in the case are undisputed. The trial court made findings of fact which were stipulated by the parties to be as follows: (1) Defendant, Prudential Insurance Company of America, issued its Policy No. 38 236 507 on or about October 14, 1975, insuring the life of Jan E. Fenton in the face amount of $20,000 with additional accidental death benefits in the amount of $40,000. The policy became dué and payable upon receipt at the home office of due proof that the insured’s death occurred while the policy was in force. The policy provided that upon request and due proof that the insured’s death resulted directly, and independently of all other causes, from accidental bodily injury, Prudential would pay the accidental death benefit specified above. The policy listed “beneficiaries in order of priority” as “Class 1 - Norman R. Fenton” and “Class 2 - Children of the Insured.” (2) The sole Class 2 beneficiary of the insured is Eric Harper who was eight (8) weeks old at the time of the murder of the insured. . (3) On November 28, 1975, Jan Fenton was found dead in the bathroom of her home, located in Barber County. This was after her husband had reported her death to the authorities, claiming he had found- her there. (4) Jan Fenton had been shot in the head some time between 9:00 and 10:00 p.m. The murder weapon was a .22 Savage automatic rifle. Norman Fenton, her husband and the primary beneficiary of the insurance policy, owned the rifle. (5) The primary beneficiary, Fenton, kept the .22 rifle in a corner of a room near the dining room area of the home. There were spent casings found in the dining room area, adjacent to the bathroom where Jan Fenton’s body was found. The murder weapon could not be located at the time of the report but was subsequently recovered approximately 2 Vz years later from the Barber County State Lake where Fenton had thrown it. (6) There was no evidence of attempted rape, burglary, robbery, or other crime, and there was no sign of a struggle. Jan Fenton’s clothes had not been disturbed and the house was undamaged. (7) The primary suspect in the murder was Norman Fenton. Jan Fenton kept the doors locked, but there was no evidence of forced entry. (8) Everyone connected with the investigation of the murder agreed that it was not a suicide. (9) Even the prime suspect, Norman Fenton, said his wife had been murdered, but no one saw anyone enter or leave the home. Fenton was known to have a drinking problem and also to use drugs. He was also a known thief, pimp, snitch, and habitual liar. On or about December 4, 1975, Norman Fenton completed, signed, and caused to be forwarded to defendant a “Request for Life Insurance Policy Benefits” under the policy and provided due proof that Jan Fenton had been killed on November 28, 1975. The same was received at Prudential’s home office together with a newspaper report indicating foul play was involved in the insured’s death. (10) Upon review of the proofs of death submitted, including the newspaper article, defendant made the decision on December 10, 1975, to investigate the circumstances of the insured’s death and the status of any criminal investigation relative thereto. The defendant’s investigation was conducted on January 20 and 21, 1976, by defendant’s investigator, James C. King. (11) Pursuant to this decision, King, a home office representative of defendant, interviewed law enforcement personnel with the following results: (a) Judge McDaniel, a judge of the Barber County court, in a conversation with King, let it be known that he had a pretty good idea that the beneficiary, Norman Fenton, was involved in the killing of the insured. (b) Sheriff John K. Blunk of Barber County, Kansas, stated that it was his opinion that the primary beneficiary, Norman Fen-ton, had killed the insured, Jan E. Fenton. (c) Richard Raleigh, county attorney, Barber County, Kansas, stated that it was his opinion that the primary beneficiary, Norman Fenton, had killed the insured, Jan E. Fenton. Raleigh also stated that all the circumstantial evidence points toward the beneficiary, Norman Fenton, and that they had no other suspect. Raleigh did indicate that he did not have enough evidence to make an arrest, but he felt that the primary beneficiary, Fenton, would stub his toe. (d) Tom Lyons, of the Kansas Bureau of Investigation, when asked by King if the beneficiary killed the insured, stated, “Of course, he killed his wife. No one else was involved.” Lyons also asked Prudential’s investigator, King, if it would be possible for Prudential to be slow in making the payment of the proceeds. Lyons felt that it would be to the State’s advantage for the beneficiary to stew before receiving payment from Prudential. Lyons indicated to Prudential’s investigator that the KBI was still working on the case, and that the KBI was waiting for the beneficiary to make a mistake. Lyons hoped that it might be possible for Prudential to delay payment of the insurance proceeds. (e) The primary beneficiary, Norman Fenton, in his interview with King, threatened King by making, “some type of vulgar, unspecific threat against me in the event I didn’t handle the case in the manner he felt proper. He said had I not appeared he was going to call the state’s insurance commissioner.” (12) Pursuant to this decision, James C. King interviewed law enforcement personnel with the following results: (a) Sheriff John K. Blunk of Barber County, Kansas, on January 20, 1976, informed King that “he has no proof or sufficient evidence to charge the beneficiary with murder.” (b) Richard Raleigh, county attorney, Barber County, Kansas, on January 20 and 21, 1976, informed King that “he hasn’t enough proof to make an arrest.” (c) Tom Lyons of the Kansas Bureau of Investigation on January 26,1976, informed King that “they don’t have enough evidence to make an arrest.” (d) On January 20, 1976, the beneficiary, Norman R. Fenton, advised the defendant’s home office representative that “he hasn’t done anything wrong, he passed four polygraphs. He’s been cleared by the KBI.” (13) Defendant’s investigator, King, submitted a report dated February 3, 1976, to defendant’s home office for evaluation. Within his report, King concluded as follows: “It is quite easy for anyone to rule out suicide. I am probably over 99% certain that the beneficiary either planned or in an act of passion shot and killed the insured. The physical evidence is quite strong. If one listens to the beneficiary’s story it is easy to be convinced that he is not telling the truth .... A five foot eight inch subject holding a rifle looking through the scope would fire approximately 51 inches at a slight downward angle. The downward trajectory between the insured and the window pretty well check out. I am convinced the beneficiary fired both shots . ... I believe that there is enough doubt that we could with justification delay payment.” (Emphasis supplied.) (14) The remedy of interpleader is available to parties who might be in peril in cases such as this. The defendant totally failed to avail itself of the protection of the remedy. (15) On February 13, 1976, approximately 10 days following the receipt of its investigator’s report, defendant Prudential paid the proceeds of the policy to the primary beneficiary, Norman R. Fenton. (16) The primary beneficiary, Fenton, was indicted for the killing of the insured in 1978. (17) The primary beneficiary, Fenton, was convicted on April 13, 1979, of murdering Jan Fenton. When the insurance policy proceeds were paid to Norman Fenton, the KBI investigation and the Barber County sheriffs office investigation into the murder were still focused on the primary beneficiary, Norman Fenton. (18) Shortly after the primary beneficiary, Norman R. Fenton, was convicted of the murder of Jan Fenton, Steven L. Harper and Nancy Harper, as the guardians of Eric Harper (formerly Eric Fenton), filed this action to recover the proceeds of the insurance policy on his behalf. In addition, defendant requested that the trial court make the following finding of fact: “The report of James C. King was returned to the Houston home office of the defendant for evaluation. There it was re.viewed by defendant’s law-department, based on existing Kansas law at that time and the status of the investigation (see King report and King affidavit). The law department advised the claim department that since there was no prospect for arrest, much less indictment or conviction, Prudential Insurance Company was legally obligated to pay Mr. Fenton the proceeds of the policy (whether or not he had feloniously taken the life of Jan E. Fenton, the insured).” The court did not make any specific determination as to this proposed finding of fact. Since the facts were undisputed, each of the parties filed a motion for summary judgment in the trial court. Although their construction of the facts differ slightly, there was no dispute between the parties as to what actually happened, only as to the significance of various happenings. The district court granted the motion for summary judgment filed by the plaintiff and denied defendant’s motion. The court entered judgment in favor of plaintiff on the insurance policy in the amount of $60,000, the face amount of the policy including an additional payment for accidental death. In addition, the trial court awarded plaintiff the sum of $20,000 attorney fees and also prejudgment interest from March 4, 1980, when defendant denied plaintiff s claim until the date of judgment. Prudential has appealed, contending that the findings of fact made by the trial court did not support summary judgment for the plaintiff but rather required that summary judgment be entered in favor of defendant. In addition, defendant contends that the plaintiff was not entitled to an allowance of attorney fees or prejudgment interest. The issues presented on appeal are essentially as follows: (1) Under the undisputed factual circumstances and with the knowledge the defendant insurance company had at the time payment was made to the primary beneficiary, what was the duty the insurance company owed to protect the interests of the contingent beneficiary, Eric Harper? (2) Did the defendant insurance company breach its duty to the contingent beneficiary by paying the primary beneficiary ten days after receipt of its investigator’s report and by its failure to bring an interpleader action to afford the contingent beneficiary an opportunity to protect his interests? (3) Was plaintiff entitled to an award of attorney fees in the action? (4) Was plaintiff entitled to prejudgment interest from March 4, 1980, to the date of judgment? Before proceeding to a determination of the issues presented, we should consider certain general principles of law applicable where the designated beneficiary in a policy of life insurance feloniously kills or intentionally procures the killing of the insured. The general rule followed throughout the United States is that, if a person who is designated as beneficiary in a policy of life insurance feloniously kills the insured, he will be barred from recovering under the policy. See the annotation at 27 A.L.R.3d 794. The rule prohibiting the murdering beneficiary from receiving the proceeds is based in some jurisdictions upon common law apart from statute, although the rule has been restated or redeclared by statute in a number of states. The reason for the rule seems to have been predicated upon the maxim of the common law that “no one shall be permitted to profit by his own fraud, orto take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” Smith v. Todd, 155 S.C. 323, 333, 152 S.E. 506 (1930). Cases supporting this rule are set forth in 4 Couch on Insurance 2d § 27.149 (1960), and in annotations in 70 A.L.R. 1539 and 91 A.L.R. 1486. Under the common-law rule the beneficiary is barred without regard to whether he is subsequently tried and convicted for the killing of the insured. In some states, the common-law rule continues under which the conviction of the beneficiary is required, but by statute a conviction, in the event that there is one, is made conclusive proof of the fact that the beneficiary had killed the insured. Accordingly, the rule is applicable to bar the estate of the beneficiary, although he committed suicide and thus was never convicted for the offense of killing the insured. In some states, including Kansas, the beneficiary is not barred until he has been actually convicted of the murder of the insured. The rule requiring a conviction in order to bar the beneficiary is contrary to the general rule which is followed in all but a few of the jurisdictions in the United States. It would clarify the issue to review the background of the rule which has been developed in Kansas down through the years. The first Kansas case on the subject did not actually involve the right of a beneficiary to recover under an insurance policy but rather the right of a husband to inherit from his deceased wife, where the husband feloniously killed his wife for the purpose of obtaining her property. In McAllister v. Fair, 72 Kan. 533, 84 Pac. 112 (1906), a husband feloniously killed his wife. Her brothers and sisters, as her nearest blood relatives, claimed her estate, claiming that the husband’s crime disabled him from taking any interest in her estate. The plaintiffs complained and insisted that a murderer should not be permitted to inherit the estate of his victim, relying on the common-law rule. Chief Justice Johnston, writing for the court, held that the subject of devolution of the wife’s property was controlled by the Kansas statutes pertaining to the descent and devolution of property. Section 2521 of the General Statutes of 1901 provided: “If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents.” Section 2529 provided that the provisions made in relation to the widow of a deceased husband are applicable to the husband of a deceased wife. The opinion concluded that the statutes should be enforced to the letter and, since the legislature had not made any exception in situations where a husband killed his wife, the husband could inherit by intes’tate succession. The court in the opinion stated as follows: “That any one should be given property as the result of his crime is abhorrent to the mind of every right-thinking person, and is a strong reason why the lawmakers, in fixing the rules of inheritance and prescribing punishment for felonious homicide, should provide that no person shall inherit property from one whose life he has feloniously taken. . . . The horror and repulsion caused by such an atrocity, however, do not warrant the court in reading into a plain statutory provision an exception which the statute itself in no way suggests.” p. 535. On page 537 of the opinion, the court noted that a different rule may be applicable in cases involving insurance policies, wills, and the like, stating as follows: “There is a manifest difference, however, between private grants, conveyances and contracts of individuals and a public act of the legislature. It might be that a person would not be permitted to avail himself of the benefits of an insurance policy the maturity of which had been accelerated by his felonious act. Many considerations of an equitable nature might affect the operation or enforcement of a grant or contract of a private person which would have no application or bearing on a statute enacted by the legislature.” In 1907, the legislature responded to correct the undesirable situation resulting from the decision in McAllister. It enacted R.S. 1923, 22-133 which provided as follows: “Any person who shall hereafter be convicted of killing or of conspiring with another to kill or of procuring to be killed, any other person from whom such person so killing or conspiring to kill or procuring said killing would inherit the property, real, personal, or mixed, or any part thereof, belonging to such deceased person at the time of death, or who would take said property by deed, will or otherwise, at the death of the deceased, shall be denied all right, interest and estate in or to said property or any part thereof, and the same shall descend and be distributed to such other person or persons as may be entitled thereto by the laws of descent and distribution, as if the person so convicted where dead.” In Hogg v. Whitham, 120 Kan. 341, 242 Pac. 1021 (1926), the court construed R.S. 1923, 22-133 as requiring the disqualifying criminal act be established by a conviction of the beneficiary and that without a conviction in a criminal action the statute did not bar a husband from inheriting the property of his wife by intestate succession. It was held that a verdict of a coroner’s jury alone finding that the husband had murdered his wife was not sufficient to bar the husband from inheriting from his wife. The first Kansas case actually involving the question of whether the beneficiary of a life insurance policy who kills the insured is barred from receiving the proceeds of a life insurance policy was Noller v. Aetna Life Ins. Co., 142 Kan. 35, 46 P.2d 22 (1935). In Noller, the opinion took notice of R.S. 1923, 40-414 (1933 Supp.) which provided, in substance, that any life insurance policy shall inure to the sole and separate use and benefit of the beneficiaries named therein, and shall be free from the claims of the assured, and shall also be free from the claims of the person or persons effecting such insurance, their creditors and representatives. The court concluded from that statute that it is the public policy of our state thus stated in language “as plain and unambiguous as the law of descents and distributions” that the proceeds of an insurance policy shall go to the beneficiary named in the policy. The court further noted the language in R.S. 1923, 22-133 that any person who shall be convicted of killing another person from whom such person would inherit property or who would take property by deed, will or otherwise, shall be denied all right to such property. It was held that the words “or otherwise” would apply to a case where the person who did the killing was the beneficiary in an insurance policy. The court then reasoned that since R.S. 1923, 22-133 only bars the killer when he has been convicted of a crime, if the beneficiary has not been convicted, he is entitled to the proceeds of the policy. In 1939, R.S. 1923, 22-133 was amended and later codified as K.S.A. 59-513 (Corrick) as follows: “No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will or otherwise from such person any portion of his estate.” The first case to interpret K.S.A. 59-513 (Corrick) was In re Estate of Pyke, 199 Kan. 1, 427 P.2d 67 (1967). In Pyke, a husband shot and killed his wife and shortly thereafter committed suicide. A controversy arose between the administrators of the husband’s and wife’s estates as to whether the husband’s estate would be entitled to a distribution from the property of the wife’s estate and the proceeds of a life insurance policy on the wife’s life. There was no question in the case that the husband had first shot his wife, but he could not be convicted of the crime because he immediately killed himself. The court concluded that 59-513 did not bar the husband’s estate, reasoning that in order for a beneficiary of a life insurance policy who kills the insured to be barred from receiving the benefits of the policy, the beneficiary must first be convicted of the crime. There being no conviction, the husband’s estate was held to be entitled to the proceeds of the insurance policy. In 1970, the legislature amended K.S.A. 59-513 to make the statute applicable to a surviving joint tenant and a beneficiary under a trust or otherwise. A proviso was added that when any person shall kill or cause the killing of his or her spouse, and shall then take his or her own life, the estates and property of both persons shall be disposed of as if their deaths were simultaneous pursuant to the provisions of K.S.A. 58-701 through 58-705. The most recent case recognizing the rule requiring a conviction of feloniously killing before a beneficiary under a life insurance policy is barred from receiving the proceeds is Chute v. Old American Ins. Co., 6 Kan. App. 2d 412, 629 P.2d 734 (1981). We have analyzed these Kansas cases and concluded that the rule that there must be a conviction of the beneficiary before he may be barred from recovering the proceeds of a life insurance policy was ill conceived and should no longer be followed in this state and that we should adopt the common-law rule which is almost universally followed in this country and which bars the beneficiary of a life insurance policy who feloniously kills the insured from recovering under the policy whether convicted or not. This rule should be applied in this case and in all future cases now pending or hereafter filed in the courts of this state. In arriving at this result, we have reconsidered the language in K.S.A. 59-513 and concluded that the statute is applicable in situations where there has actually been a conviction of the beneficiary and bars him from recovering under an insurance policy. The statute does not preclude judicial application of the. common-law rule in cases where the beneficiary killed the insured but has not been convicted of the crime. There are a number of states which have statutes similar to K.S.A. 59-513. A number of those states hold that the statute which prohibits a beneficiary convicted of killing the insured from recovering the proceeds under the insurance policy does not change the rule of public policy which prevents such recovery although the beneficiary has not been convicted. In Smith v. Todd, 155 S.C. 323, it was held that the fact that the primary beneficiary, who feloniously killed his wife, was not prosecuted for the killing because he committed suicide after the murder was not a sufficient reason to entitle his estate to the proceeds of the policy. Although the South Carolina statute prohibited recovery by a beneficiary who is convicted of unlawfully killing the insured, the court concluded that the statute did not change the rule of public policy barring from recovery beneficiaries who committed such acts, whether or not they are convicted for the crime. See also to the same effect Keels v. Atlantic Coast Line R. Co. et al., 159 S.C. 520, 157 S.E. 834 (1931). In Continental Bank and Trust Company v. Maag, 285 F.2d 558 (10th Cir. 1960), the insurance company brought an inter-pleader action to compel the estate of the primary beneficiary and contingent beneficiaries to litigate their conflicting claims to the proceeds of the policy. The primary beneficiary had killed his wife, the insured, and then committed suicide. A Utah statute prohibited a person convicted of unlawfully killing another from taking property from the latter. The primary beneficiary’s administrator argued that, since there had been no conviction, his estate and not the contingent beneficiaries was entitled to the proceeds. The court held that the state statute pertaining to convictions did not change the rule of public policy against allowing a beneficiary who kills the insured to recover the proceeds of the policy and that a conviction was not required. A more recent case on this point is Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975). There a statute of North Carolina provided that a person convicted of a willful killing of another is barred from receiving the proceeds of a life insurance policy on the life of the deceased. It was held by the North Carolina court that the statute did not abrogate the common-law principle that a person should not be allowed to profit from his own wrong and that the primary beneficiary could be barred from recovering the proceeds of the policy in spite of the fact he had not been convicted of the crime in a criminal action, the principal beneficiary being only a juvenile. From our reexamination of K.S.A. 40-414, which is the same statute before the court in Noller in 1935, we find no legislative expression of a public policy that the proceeds of an insurance policy must be paid to the beneficiary even though the beneficiary feloniously kills the insured. In substance, the statute simply states that all insurance policies and their reserves shall inure to the sole and separate use of the beneficiaries named therein, and shall be free from the claims of the assured and of the persons effecting such insurance as their creditors and representatives. We hold that the court in Noller was in error in concluding otherwise. We, therefore, overrule any statements to the contrary contained in Noller, In re Estate of Pyke, and Chute. We turn now to a consideration of the issue raised on the appeal pertaining to the duty owed by the defendant insurance company to the contingent beneficiary, Eric Harper, at the time payment was made to the primary beneficiary, Norman Fenton. We have no cases in Kansas directly in point which define the duty of an insurance company to withhold payment from the primary beneficiary where it has notice and knowledge of facts which may defeat the claim of the primary beneficiary. There are, however, a number of similar cases from other jurisdictions where an insurance company has been held liable to a contingent beneficiary or to the estate of the insured where the insurance company, having knowledge of facts which may defeat the claim of the primary beneficiary, paid the primary beneficiary without notice and without bringing an interpleader action so as to afford the contingent beneficiary or the insured’s estate an opportunity to protect its interest. In Glass v. United States, 506 F.2d 379 (10th Cir. 1974), the insured, Glass, died as a result of gunshot wounds. At the time of his death, Glass was insured under a $10,000 national service life insurance policy issued by the Veterans Administration. The primary beneficiary was Glass’s second wife, Rebecca. The children of his first marriage were the contingent beneficiaries. The primary beneficiary filed a claim for the policy proceeds. Refore payment was made, a grand jury returned an indictment against Rebecca charging her with Glass’s murder. The Veterans Administration was notified of the indictment. Notwithstanding that notification, the VA made a decision awarding the proceeds to the second wife. This was done without giving any notice to the contingent beneficiaries. Several months later, Rebecca was found guilty of murder, and the contingent beneficiaries then made the claim upon the VA for the proceeds of the policy. This claim was denied. The trial court held in favor of the plaintiffs and permitted them to recover on the insurance policy. On appeal, the Court of Appeals affirmed, holding that, under the factual circumstances, the VA could not avoid its obligation to pay the proceeds to the contingent beneficiaries because it had negligently and erroneously paid the proceeds to the primary beneficiary. The VA could easily have avoided double payment by filing an interpleader action which is specially designed for cases of this type. The general rule which governs the liability of an insurance company for payment to a contingent beneficiary after a previous payment to a primary beneficiary is stated in Weed v. Equitable Life Assurance Society of U.S., 288 F.2d 463 (5th Cir. 1961), as follows: “Payment in good faith to the beneficiary of record by the insurance company without knowledge of facts vitiating the claim will prevent a second recovery by another claimant.” In support of this rule, the court in Weed cited Daniels v. Grand Lodge, 62 S.W.2d 548 (Tex. Civ. App. 1933); Avondale v. Sovereign Camp, W.O.W., 134 Neb. 717, 279 N.W. 355 (1938). In a more recent case, In re Estate of Thompson, 99 Ill. App. 3d 303, 426 N.E.2d 1 (1981), it was held that an insurance company which pays the proceeds to the named beneficiary is discharged from liability on the policy if it acted in good faith, and that the obligation of good faith requires a reasonable and prudent prepayment investigation when the company is aware of suspicious circumstances involving the beneficiary in the death of the insured. The obligation of good faith is not violated unless a reasonably prudent investigator would have uncovered facts which would have defeated the beneficiary’s claim. Whether or not the insurer carried out its obligation was a question of fact to be determined by the trial court. Under the law as it existed in Kansas at the time this case arose, the primary beneficiary, Norman Fenton, had a right to the proceeds of the insurance policy until he had actually been convicted of the felonious killing of his wife. However, he has been convicted and no longer has a right to those proceeds. The contingent beneficiary, Eric Harper, is entitled to them under the law. The difficulty arose in this case because Prudential Insurance Company paid the proceeds to Norman Fenton about three years before his conviction'. The question thus becomes whether Prudential’s payment of the proceeds to Fenton relieved it of its obligation to pay the proceeds to the contingent beneficiary, Eric Harper. The law simply could not be that, if the primary beneficiary has not yet been convicted, the insurance company is completely free to pay the beneficiary at any time after the death of the insured. Such a rule would destroy the intent of K.S.A. 59-513, because in many cases the beneficiary who has killed the insured will not be convicted for several months after the killing has occurred. Reason and justice require that a duty be placed upon the insurance company to wait a reasonable time after the death of the insured to allow the law enforcement agencies to complete their investigation. Certainly if a prosecution is actually commenced, the insurance company should delay payment until the outcome of the prosecution is known. The basic issue in this case then becomes-: What was the obligation of the insurance company in regard to paying the proceeds when the primary beneficiary had not yet been charged or indicted? We have -no Kansas cases directly on that point. Noller and Pyke are not helpful, because in each of those cases there was no possibility that the beneficiary would be convicted, since he or she had taken his own life. As noted above, the insurance company is to be relieved from liability only if it paid the proceeds to the primary beneficiary in good faith and without knowledge of fact's which may defeat the primary beneficiary’s claim. In Glass, the court placed great weight on the fact that the insurance company (VA) could have filed an inter-pleader action and protected itself. In Glass, it was also noted that, if the contingent beneficiary is a minor, more caution may be required of the insurance company. In the case now before us, Prudential conducted a complete investigation. It’s investigator found and advised Prudential that, with 99% certainty, the beneficiary had killed the insured. Prudential paid the primary beneficiary although it knew that Tom Lyons of the Kansas Bureau of Investigation had asked Pruden tial’s investigator, James King, if it would be possible for Prudential to be slow in making the payment of the proceeds, and although James King, the investigator, had stated to Prudential that there was enough doubt that it could with justification delay payment of the proceeds to Fenton. In spite of this complete investigation and these recommendations, Prudential paid Fen-ton ten days after receipt of the investigator’s report. As a result, Eric Harper, the contingent beneficiary, an infant of only a few months, had no way to protect his interest. We have concluded that, under all the circumstances, Prudential should have either delayed making payment to Fenton or filed an interpleader action. By interpleading the contingent beneficiary so that he might have an opportunity to protect his rights, Prudential could have protected itself from a double liability. Clearly an insurance company should not make payment to the primary beneficiary where it has been specifically notified by the criminal authorities that an investigation of the beneficiary’s participation in the killing of the insured is still continuing and the case has not yet been closed. We, thus, hold that the judgment of the trial court in favor of the plaintiff, Eric Harper, in the amount of $60,000 should be affirmed. The next issue raised by the defendant is whether the plaintiff is entitled to recover attorney fees because Prudential refused to make payment on plaintiff s demand. The right to recover attorney fees on insurance policies is covered by K.S.A. 40-256 which provides, in substance, that in an action on an insurance policy, the trial court shall allow attorney fees if it appears from the evidence that the insurance company has refused without just cause or excuse to pay the claim. Whether or not an insurance company has refused without just cause to pay a claim depends on the facts and circumstances of the particular case. Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 493, 608 P.2d 903 (1980). In Clark, the court stated that if there is a good faith legal controversy as to liability, attorney fees must be denied. The court also stated that if there is a bona fide and reasonable factual ground for refusing to pay a claim, attorney fees are not awardable. Under the circumstances here and because of the novelty of the issue involved, we find there was a bona fide question involved and, thus, no attorney fees should have been awarded to the plaintiff. The judgment is modified on that point. The final point is whether prejudgment interest should have been awarded to the plaintiff. The amount owed on the policy was a liquidated sum of $60,000. Plaintiff was either entitled to recover that amount or nothing. The trial court held that plaintiff was entitled to prejudgment interest, from March 4, 1980, when defendant denied plaintiff s claim until the date of judgment. We find no error in that order. The judgment of the district court is affirmed but modified to deny attorney fees in accordance with the opinion.
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The opinion of the court was delivered by McFarland, J.: The issues in these consolidated criminal appeals concern constitutional (Sixth Amendment, United States Constitution, and Section Ten, Kansas Constitution Bill of Rights) and statutory (K.S.A. 22-3402) speedy trial rights in misdemeanor cases. Of necessity, the facts as to each appeal will be set forth separately. SCOTT The parties have stipulated Daniel S. Scott, on September 16, 1981, was arrested for misdemeanor possession of marijuana (K.S.A. 65-4127b). The record indicates the actual arrest date was September 26, 1981. Pursuant to Shawnee County’s K.S.A. 22-2814 bond program, Scott was released the same date upon executing a $500 own recognizance (O.R.) bond. The bond designated a first appearance date of November 25, 1981. Scott duly appeared on that date, but no complaint had been filed. On December 8,1981, pursuant to the Third Judicial District’s court procedure, the clerk discharged the bond. On January 29, 1982, a complaint was filed and a warrant issued for Scott’s arrest. The arrest was made on April 21, 1982. The same day defendant was brought before the district court, formally arraigned, and released upon executing a $500 O.R. bond. On June 7, 1982, the day of trial, defense counsel moved to dismiss the charge for violation of defendant’s constitutional right to speedy trial (Sixth Amendment, United States Constitution, and Section Ten, Kansas Constitution Bill of Rights). The motion to dismiss expressly stated: “This motion by defendant is not based upon [K.S.A. 22-3402], the defendant’s statutory right to a speedy trial. The defendant herein asserts his constitutional rights under both Federal and State Constitutions.” The trial court took the motion under advisement and proceeded with a bench trial. Scott was found guilty of possession of marijuana. Sentencing was deferred pending determination of the motion to dismiss. On September 16, 1982, the trial court issued a lengthy memorandum decision wherein it held: (1) Defendant’s constitutional rights to speedy trial had not been violated; (2) For statutory speedy trial purposes (K.S.A. 22-3402), defendant’s arraignment had occurred on November 25, 1981, the appearance date set on the initial O.R. bond; and (3) Defendant’s statutory speedy trial right had not been violated as the trial was held within 180 days from November 25, 1981. Defendant was sentenced on September 17, 1982. Defendant appeals from the district court’s order of September 16, 1982, overruling his motion to dismiss. ROSINE On September 7, 1981, Craig D. Rosine was arrested for misdemeanor possession of marijuana (K.S.A. 65-4127b). Pursuant to Shawnee County’s K.S.A. 22-2814 bond program, Rosine was released the same day upon executing an O.R. bond. The parties have stipulated the bond directed Rosine to appear in court on October 29, 1981. No complaint having been filed, the bond was discharged by the clerk pursuant to established court procedure in December, 1981. On April 2, 1982, a complaint was filed and a warrant was issued for Rosine’s arrest. On April 14, 1982, Rosine was arrested and released upon filing a $500 O.R. bond. The first court appearance was set for April 22, 1982. On that date arraignment was had and the trial was scheduled for June 30, 1982. On the day of trial, defense counsel moved to dismiss the charge for violation of defendant’s constitutional right to speedy trial. In his oral motion, defense counsel stated: “I believe that this matter should be discharged. That the defendant should be discharged from the charges based upon his denial of right to speedy trial based upon his constitutional rights. Not based upon the statutory proceedings afforded by this time. I have the statute. K.S.A. — that’s the bonding statute. Well, based upon the normal 180-days’ worth of time on the bond under the statutory— “THE COURT: You are not making a claim now? “MR. CARPENTER: Not as to the statutory right. Well within the 180 days that he was arrested the second time of this time which would be approximately the end of April until the end of June.” (Emphasis supplied.) The district court took the motion under advisement and the bench trial proceeded. Defendant was found guilty of possession of marijuana. Sentencing was deferred pending determination of the motion to dismiss. On September 16, 1982, based on its decision filed the same date relative to Daniel S. Scott, the trial court held: (1) For statutory speedy trial purposes (K.S.A. 22-3402) defendant’s arraignment occurred on November 5, 1981, the appearance date set on the initial O.R. bond; (2) Defendant’s statutory speedy trial right had been violated as trial was not held within 180 days from November 5, 1981; and (3) The complaint should be dismissed. The State appeals from said dismissal. Although not a part of the record from the district court in these appeals, the State, at oral argument before us, advised the delay in each case between initial arrest and the filing of the complaint was occasioned by the district attorney’s policy not to file a complaint until it is in receipt of a report from the K.B.I. chemist verifying the seized contraband is, in fact, marijuana. Apparently the K.B.I. laboratory was backlogged during the time in question and such drug analyses were frequently subjected to this type of delay. We turn now to the first issue. CONSTITUTIONAL RIGHT TO SPEEDY TRIAL At the onset it should be noted that while the trial court expressly found Scott’s constitutional right to a speedy trial had not been violated, no specific determination on this issue is contained in the trial court’s Rosine memorandum opinion. The trial court did, however, refer to the simultaneously filed Scott opinion in the Rosine opinion and attached a copy thereof to the Rosine opinion. Further, the constitutional speedy trial question was the only issue raised in either motion. The statutory speedy trial issue was engrafted onto the defendants’ motions by the trial court at some point after the motions were taken under advisement. On appeal, the parties treat the Rosine constitutional speedy trial issue as having been determined by the trial court adversely to Rosine. Further, the rationale of the trial court in the Scott opinion concerning the constitutional issue would indicate the same result would have been reached as to Rosine. Under the circumstances, we shall proceed on the basis the trial court found the constitutional speedy trial rights of both defendants had not been violated. The Sixth Amendment to the United States Constitution, as pertinent here, provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” Section Ten of the Kansas Constitution Bill of Rights similarly proclaims: “In all prosecutions, the accused shall be allowed ... a speedy public trial . . . .” The leading United States Supreme Court case on the right to speedy trial is Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972). In Barker more than five years elapsed between defendant’s arrest and trial. The United States Supreme Court adopted a case-by-case flexible approach for determining whether an accused’s constitutional right to a speedy trial had been violated, stating: “A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” 407 U.S. at 530. Less than five months after Barker we adopted the Barker four-point analysis in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). In Otero there was nearly an eight-year delay between charges being filed and trial. The court found this delay violated defendant’s right to a speedy trial and reversed his conviction. Since Otero the Barker analysis has been applied a number of times by Kansas appellate courts. E.g., State v. Calderon, 233 Kan. 87, 94, 661 P.2d 781 (1983); State v. Hunt, 8 Kan. App. 2d 162, 167, 651 P.2d 967 (1982); Williams v. Darr, 4 Kan. App. 2d 178, 182-83, 603 P.2d 1021 (1979); State v. Wilson, 227 Kan. 619, Syl. ¶ 2, 608 P.2d 1344 (1980); State v. Ward, 227 Kan. 663, Syl. ¶ 4, 608 P.2d 1351 (1980); State v. Taylor, 3 Kan. App. 2d 316, 321-22, 594 P.2d 262 (1979); State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979); State v. Fink, 217 Kan. 671, Syl. ¶ 4, 538 P.2d 1390 (1975); State v. Smith, 215 Kan. 34, 40, 523 P.2d 691 (1974); and State v. Hemminger, 210 Kan. 587, 593, 502 P.2d 791 (1972). As to the first factor, length of delay, 254 days elapsed between Scott’s initial arrest and trial while 296 days elapsed between Rosine’s initial arrest and trial. In State v. Calderon, 233 Kan. 87, the court found a thirteen-month delay between the time defendant was charged and brought to trial did not violate his constitutional right to a speedy trial. In State v. Ward, 227 Kan. 663, the court affirmed a conviction where there had been a 243-day lapse between arrest and trial. A similar result was reached in State v. Wilson, 227 Kan. 619, where a three-year period existed between arrest and trial. State v. Dolack, 216 Kan. 622, 636, 533 P.2d 1282 (1975), found no abridgment of constitutional rights where more than three years passed. State v. Hemminger, 210 Kan. 587, reached a like result with over four years. In Barker v. Wingo, 407 U.S. 514, the U.S. Supreme Court found no violation of defendant’s constitutional right to a speedy trial where more than five years passed between his arrest and trial. Recently, in State v. Hunt, 8 Kan. App. 2d 162, where exactly one year passed between arrest and trial, the Court of Appeals held such a delay was not per se unreasonable. 8 Kan. App. 2d at 168. The delay in each case herein is clearly not presumptively prejudicial as enunciated by Barker v. Wingo, 407 U.S. 514, and hence there is no necessity for inquiry into the other factors that go into the balancing test. However, we do note that no unreasonable conduct by the State has been shown and that neither defendant contends he was prejudiced by the delay. We conclude the constitutional right to speedy trial has not been violated as to either defendant. STATUTORY RIGHT TO SPEEDY TRIAL K.S.A. 22-3402(2) provides: “(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person, shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” The trial court concluded, for purposes of K.S.A. 22-3402(2), defendants’ arraignments occurred on November 25, 1981 (Scott), and November 5, 1981 (Rosine), the dates they were directed to appear on their initial O.R. bonds — despite the fact no complaint was filed against Scott until January 29, 1982, or against Rosine until April 2, 1982. In K.S.A. 22-2202(2) arraignment is defined as follows: “(2) ‘Arraignment’ means the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged, informing said defendant of the offense with which said defendant is charged, and asking said defendant whether he or she is guilty or not guilty.” K.S.A. 22-3205 outlines the procedure for arraignment as follows: “Arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to him the substance of the charge and calling upon him to plead thereto. He shall be given a copy of the indictment or information before he is called upon to plead. If the crime charged is a felony, the defendant must be personally present for arraignment; if a misdemeanor, he may with the approval of the court, appear by counsel. The court may direct any officer who has custody of the defendant to bring him before the court to be arraigned.” It is clear that Scott’s and Rosine’s court appearances on November 25,1981, and November 5, 1981, respectively, wholly lacked the essential elements of an arraignment. No complaint was read to either defendant as no complaint existed. For like reason, no copy of the complaint could have been handed to either defendant. Further, there was no complaint on which to base a plea. The existence of a complaint, information or indictment filed against a defendant is a fundamental prerequisite to an arraignment. In State v. Taylor, 3 Kan. App. 2d 316, the Court of Appeals stated: “The arraignment in a criminal proceeding is the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged, informing the defendant of the offense charged by reading the complaint, information or indictment or stating to him the substance of the charge, and asking defendant whether he is guilty or not guilty or to otherwise plead as permissible by law.” Syl. ¶ 1. Further: “The date of arraignment controls application of K.S.A. 1978 Supp. 22-3402(1) in both felony and misdemeanor cases.” 3 Kan. App. 2d at 320. Scott was arraigned on April 21, 1981. As noted in defense counsel’s brief: “Thus, the constitutional guarantee attached to the defendant upon his arrest on September 16 [26], 1981, even though the statutory right did not attach until his arraignment on April 21, 1982 before Judge Carpenter on his second arrest,” (Emphasis supplied.) Rosine was arraigned on April 22, 1982. The statutory speedy trial (K.S.A. 22-3402) clock commenced to run on April 21, 1982, as to Scott and on April 22, 1982, as to Rosine. Their respective June 7, 1982, and June 30, 1982, trials were well within the 180-day period prescribed by K.S.A. 22-3402(2). Although erroneously finding defendant Scott’s arraignment had occurred on November 25, 1981, the trial court concluded defendant Scott’s statutory right to speedy trial had not been violated. We agree with the trial court’s ultimate conclusion that Scott’s statutory right to speedy trial (K.S.A. 22-3402[2]) had not been violated. As to defendant Rosine, we conclude the trial court erred in finding said defendant’s statutory right of speedy trial (K.S.A. 22-3402[2]) had been violated and in dismissing the complaint. The judgment in State v. Scott (55,006) is affirmed. The judgment in State v. Rosine (54,980) is reversed with directions to reinstate the conviction and proceed with sentencing.
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The opinion of the court was delivered by Herd, J.: This is an appeal in a criminal action by the State from the trial court’s order holding the State could not grant a witness immunity from the commission of perjury. We hold this court is without jurisdiction and dismiss the appeal. On November 6, 1980, John Johnson was shot and killed as he drove his truck down a Wichita street. On February 5, 1982, Marcus Crawford testified before an inquisition pertaining to Johnson’s death. Mr. Crawford related generally that he was with the two appellees, Anthony and Keith Martin, during the evening of November 6, 1980. Crawford, along with another person, was seated in the back seat of Keith Martin’s car. Keith Martin was driving and Anthony Martin was in the passenger seat. After Keith and Anthony Martin had words with two other men at a gas station, the four resumed their ride in Martin’s car. Crawford testified Keith Martin then drove alongside the vehicle containing the men with whom they had argued. Anthony Martin rolled down his window and shot the driver of the vehicle, John Johnson. As a result of Crawford’s testimony at the inquisition, Anthony Ray Martin was charged with second-degree murder, K.S.A. 21-3402, and Keith Martin was charged with aiding a felon, K.S.A. 21-3812. At the preliminary hearing on the charges the State called Marcus Crawford as a witness. Crawford refused to testify. Crawford’s refusal led the State to do two things. First, the prosecution introduced Crawford’s inquisition testimony as substantive evidence at the preliminary hearing. The judge admitted it over defense counsel’s objection. Second,' in an attempt to get Crawford to testify, the district attorney granted him immunity. The grant of immunity stated: “I, Clark V. Owens, District Attorney for the Eighteenth Judicial District of Kansas, pursuant to the authority vested in me by K.S.A. 22-3102, hereby grant Marcus L. Crawford immunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which he shall be compelled to testify in this matter and any such statement or testimony shall not be used against him in any prosecution for a crime under the laws of the State of Kansas or any municipal ordinance provided however, that this grant of immunity shall not apply to any prosecution for peijury or false statement or any other crime committed in giving a statement or testimony in this action.” After the State’s grant of immunity the trial court threatened to hold Crawford in contempt if he refused to testify. Crawford reluctantly agreed to take the stand. He denied the truth of his inquisition testimony. After the preliminary hearing the trial judge bound both appellees over for trial. Thereafter both appellees filed motions to suppress the inquisition testimony of Marcus Crawford. They argued the prosecutor had illegally granted Crawford immunity and that the introduction of the inquisition statement would amount to sanctioning perjury. After a hearing on the matter the trial court reached its decision, stating: “THEREFORE, IT IS ORDERED, DECREED AND ADJUDGED that the motions to suppress are overruled. It is further ordered that the prosecution will not be permitted to grant Marcus Crawford immunity from perjury.” The State then appealed. The first issue on appeal is whether this court has jurisdiction. K.S.A. 22-3603 governs interlocutory appeals by the State: “When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.” The State argues the trial court’s order was essentially an order “suppressing evidence” within the meaning of the statute. Ap pellees, on the other hand, argue the actual motions to suppress were overruled, and the trial court’s. order never really “suppressed” any evidence. The purpose of K.S.A. 22-3603 is to permit appellate review of pretrial rulings which may be determinative of the case. State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451 (1977). See also State v. Boling, 5 Kan. App. 2d 371, 617 P.2d 102 (1980), which provides a thorough analysis of the statutory scheme and the difference between an order “suppressing” evidence obtained in violation of constitutional rights and one “excluding” evidence because of evidentiary rules. Here evidence was neither suppressed nor excluded. The trial court said nothing indicating the inquisition testimony of Marcus Crawford could not be admitted at trial. In fact the judge stated he would “reserve any rulings on whether or not the statement can be admissible at a later time.” Neither was the trial court’s ruling determinative of the case. The possibility still existed Crawford’s inquisition testimony could be introduced at trial. The trial court’s order merely made it impossible for the State to compel Crawford to testify at trial. Given Crawford’s state of mind and testimony at the preliminary hearing the absence of Crawford’s testimony at trial would be no great loss. The inquisition testimony was the important matter to the State’s case, not Crawford’s presence. Accordingly, we hold the trial court’s order was not appealable under K.S.A. 22-3603 leaving this court without jurisdiction. The appeal is dismissed. Lockett, J., not participating.
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The opinion of the court was delivered by Lockett, J.: Sterling Waggener is a practicing attorney in Topeka. Waggener and his secretary were interested in purchasing word processing equipment for use in the law office. They met with a sales representative of Seever Systems, Inc. The sales representative showed them the Savin 900 Word Master. The salesman presented them with several options for purchasing used equipment or new equipment. Waggener then spoke to an attorney who had the Savin 900 Word Master in his office. After discussing the matter, Waggener determined to acquire new equipment. A lease agreement was signed obligating Waggener to pay the sum of $147.76 per month for a period of sixty months, commencing on the first day of the month following the installation of the equipment. The equipment was delivered and installed in Waggener’s office July 26, 1978. The Savin 900 Word Master equipment consists of an IRM Selectric typewriter with a base plate attached, and a separate console unit connected to the typewriter with an umbilical cord. Waggener’s secretary received a four-hour training session at Seever’s office prior to the installation of the equipment. When the equipment was installed, it appeared to Waggener that the housing of the typewriter was neither the color specified nor was it new. Waggener wrote on the installation receipt that the housing was not new. Several complaints were made by Waggener and his secretary due to the condition of the typewriter housing to Seever’s customer support representative. In the three weeks following the installation of the equipment, the typewriter malfunctioned. Seever’s technicians were contacted and made six to eight service calls, repairing the machine on each call. Shortly after the last service call on August 16,1978, Waggener advised Seever’s representatives that he was dissatisfied with the equipment and wanted to end the lease. The general manager for Seever Systems wrote to Waggener on August 18, 1978, and advised him that a negotiated settlement of the matter was possible and the equipment could be removed upon the receipt of payment by Mr. Waggener of $950.00 for the early termination of the agreement. Mr. Waggener did not accept this proposal. Negotiations continued between counsel for Seever Systems and Mr. Waggener. The machine was picked up by Seever Systems, Inc. in March, 1979, pursuant to an agreement between counsel for the “deinstallation” of the machine. After “deinstallation” Seever sold the machine as used and credited the proceeds of the sale to Waggener’s account. No payments were ever made by Mr. Waggener under the lease agreement. The equipment was used on a daily basis by Mr. Waggener’s secretary until March 9, 1979. Mr. Waggener’s secretary never used the memory portion of the system throughout the entire time the machine was in Waggener’s office. Waggener filed suit against Seever alleging three violations of the Kansas Consumer Protection Act (K.S.A. 50-623 et seq.): (1) The defendant represented the property to be original or new when in fact it was used; (2) defendant intentionally failed to state a material fact that the equipment represented a discontinued line; and (3) the equipment was not usable in the normal course of the plaintiff s business. Waggener requested a jury trial in his petition. Seever counterclaimed alleging Waggener breached the lease agreement by making no payments. Seever requested judgment for the amount due under the contract. Waggener, in the pretrial order, requested (1) damages or (2) rescission of the contract. The court, on the morning of the trial, required Waggener to elect his remedy. Waggener was required to either affirm the contract and seek damages or rescind the contract and defend the counterclaim on that basis. The plaintiff elected the equitable remedy of rescission. The court ruled that a jury trial was not appropriate since Waggener’s claim was for rescission and further, that the statutory scheme of the Consumer Protection Act does not provide for a jury trial. The matter was tried to the court. The court entered judgment for Seever on both the plaintiff s petition and Seever’s counterclaim. The court denied Seever’s request for attorney fees contained in its counterclaim. Waggener appeals from the judgment. Seever cross-appeals from the denial of attorney fees. Waggener claims that the court erred in concluding a deceptive act alleged under the Kansas Consumer Protection Act is a question of law tried only to a judge. The trial judge in his Memorandum of Decision and Judgment stated in part: “This action was commenced under the Kansas Consumer Protection Act KSA 50-623 et seq. Plaintiff contends that the defendant engaged in three separate deceptive acts as defined in KSA 50-626 (b). The Court has previously determined in this case that a deceptive act, like an unconscionable act is a question of law for the Court. State ex rel. Miller v. Midwest Service Bureau, 229 Kan. 322, 324, [623 P.2d 1343] (1981). There is no provision in this statutory cause of action for trial by jury and the Court has heretofore concluded that plaintiff s claim should be tried to the Court. Koerner v. Custom Components, 4 Kan. App. 2d 113, 603 P.2d 628 (1979); Karnes Enterprises, Inc. v. [Quan], 221 Kan. 596, 561 P.2d 825 (1977). Defendant made no demand for jury trial on its counterclaim.” There is no due process right to a jury trial in a state court civil action. This is true because the due process clause of the Fourteenth Amendment to the Constitution of the United States does not apply to a jury trial in a civil proceeding in a state court. A trial by jury in suits at common law in state courts is not a privilege or immunity of national citizenship which the states are forbidden by the Fourteenth Amendment to abridge. See First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 622, 602 P.2d 1299 (1979). The constitutions of the states generally contain express guaranties of the right to a jury trial. The public policy of the state with respect to jury trials is determined by its own constitution. Section 5 of the Bill of Rights of the Constitution of the State of Kansas states: “Trial by jury. The right of trial by jury shall be inviolate.” K.S.A. 60-238(a) provides: “The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.” The right to a jury trial in a civil proceeding in Kansas is not absolute. This court has in many decisions interpreted the constitutional and statutory provisions and established certain general principles to be followed by the courts in determining whether a party litigant is entitled to a jury trial. Justice Prager set forth the guiding principles in Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 600-01, 561 P.2d 825 (1977). Those guiding principles are: “(1) 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. (Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 497 P.2d 110.) “(2) The constitutional 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. (Craig v. Hamilton, 213 Kan. 665, 518 P.2d 539; Hasty v. Pierpont, 146 Kan. 517, 72 P.2d 69.) Judge Spencer A. Gard in Kansas Code of Civil Procedure, § 60-238, in discussing the repeal of former statute G.S. 1949, 60-2903 and in analyzing K.S.A. 60-238 states as follows: “ ‘There is now no general statute defining what issues are triable to a jury as a matter of right and which are not. That question is determinable on the basis of common law tradition as preserved by the Kansas Constitution, section 5 of the Bill of Rights. See Hasty v. Pierpont, 146 K 517, 72 P 2d 69, which discusses the basic principle that under the common law a party was entitled to a jury if the case was based on legal principles as distinguished from actions in equity. Kansas jurisprudence does not seem to have suffered any loss by the repeal of former section 60-2903.’ “(3) At common law and under the Kansas constitutional provision in a suit in equity a party is not entitled to a trial by jury as a matter of right. (Spena v. Goffe, 119 Kan. 831, 241 Pac. 257.) “(4) In determining whether an action is one in equity the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought. (Akins v. Holmes, 89 Kan. 812, 133 Pac. 849; Houston v. Goemann, 99 Kan. 438, 162 Pac. 271; Hasty v. Pierpont, supra; Sutherland v. Sutherland, 187 Kan. 599, 358 P.2d 776; Hindman v. Shepard, 205 Kan. 207, 468 P.2d 103.) “(5) The issues raised by the pleadings or as modified by the pretrial order determine the nature of the action, and where the issue is not one justiciable at common law, a jury trial is not available. (Craig v. Hamilton, supra.) “Prior to the adoption of our present code of civil procedure whether or not a party was entitled to a jury trial was determined exclusively from the pleadings. (Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098; Hasty v. Pierpont, supra; McCalester v. National Reserve Life Ins. Co., 151 Kan. 378, 99 P.2d 758; Nusz v. Nusz, 155 Kan. 699, 127 P.2d 441; City of Osawatomie v. Slayman, 182 Kan. 770, 323 P.2d 910; Sutherland v. Sutherland, supra.) The rule which required a consideration of the pleadings alone was appropriate under our former code of civil procedure where the plaintiff was required to plead in his petition all of the facts constituting his cause of action. Under our present code of civil procedure which requires only ‘notice’ or ‘claim’ pleading, the former rule is not as workable from a practical standpoint. This was recognized in Craig v. Hamilton, supra. The rule to be applied today should be one which permits the parties to complete their discovery so that the basic issues involved in the case can be clarified and the essential nature of the action determined at a pretrial conference. It is at that stage of the litigation that the trial court should determine the issue whether a party is entitled to trial by jury as a matter of right. “(6) The substance of the pleadings, not the form of the pleadings, determines the character of an action as equitable or legal in nature. (Estey v. Holdren, supra; Russell v. Bovard, 153 Kan. 729, 113 P.2d 1064; Cloonan v. Goodrich, 161 Kan. 280, 167 P.2d 303; City of Osawatomie v. Slayman, supra.) The fact that the plaintiff prays for a money judgment only is not controlling where the action is essentially one in equity. (Sipe v. Taylor, 133 Kan. 449, 300 Pac. 1076.) “(7) Where a court of equity obtains jurisdiction of an action for the purpose of granting some distinctively equitable relief, the court will take jurisdiction for all purposes and determine all issues in the case so that a full, effective, and determinative decree adjusting the rights of the parties may be entered and enforced. (Seibert and Lykins v. Thompson, 8 Kan. 65; Martin v. Martin, 44 Kan. 295, 24 Pac. 418; Sanders v. Visser, 165 Kan. 336, 194 P.2d 511; Place v. Place, 207 Kan. 734, 486 P.2d 1354.)” First let us examine K.S.A. 50-627(a) and (b) which state in part: “No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction. “The unconscionability of an act or practice is a question for the court. In determining whether an act or practice is unconscionable, the court shall consider circumstances of which tire supplier knew or had reason to know, such as, but not limited to the following . . . .” Emphasis supplied. Most states regulate the right to a civil jury proceeding by constitution, statute, and case law. A statute may specifically allow or deny the right to a civil jury. State statutes relating to civil juries and jury trials are subject to the state constitutional provisions. As a general rule, the right to a jury trial may be denied in certain proceedings that are purely statutory. Whether or not an act is unconscionable, and therefore violates the Kansas Consumer Protection Act, is a question for the court and not a jury pursuant to K.S.A. 50-627(fe). The trial court was correct when it stated that one is not entitled to a jury trial when the petition claims an unconscionable act under K.S.A. 50-627. The trial court was in error when it ruled that a deceptive act (K.S.A. 50-626), like an unconscionable act, is a question of law for the court. The legislature did not declare that a deceptive act or practice is a question for the court as it stated for unconscionable acts and practices in K.S.A. 50-627. There is a historical justification for the distinction between unconscionability and deception. The doctrine of unconscionability has its origins in equity: “For at least two hundred years equity courts have refused to grant specific enforcement of, or have rescinded, contracts so unconscionable ‘as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.’ ” White and Summers, Uniform Commercial Code § 4-2 (2d ed. 1980). Actions that claim a deceptive act or practice follow the general rule in determining whether there is a right to a jury trial. The general rule is that the right to a jury trial in civil actions extends only to such actions or proceedings as existed at common law. It is the nature of the action that determines whether the issue is one justiciable at common law with a right to a jury trial or an action in equity where a party is not entitled to a jury trial. The trial court was incorrect when it stated there is no right to a jury trial for a deceptive act or practice for an alleged violation of K.S.A. 50-626. The second question raised is whether the issue presented and the relief claimed entitled the plaintiff to a jury trial. Waggener first claimed damages and requested a jury trial in the petition. At the pretrial Waggener requested either damages or rescission of the contract. Prior to trial the court required Waggener to elect his remedy, either damages or rescission. A person fraudulently induced to buy and pay for property delivered to him has two remedies. He may affirm the contract and sue for damages or he may disaffirm the contract and sue for rescission. See Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 11, 605 P.2d 545 (1980). If he affirms, he keeps the property, the seller keeps the consideration paid, and the buyer recovers damages for the difference in value between what he received and what he should have received. If he disaffirms, he seeks restoration of the status existing before the sale was completed. Because the remedy by way of damages rests on affirmance, and the remedy by way of rescission rests on disaffirmance, the two are inconsistent and incompatible. Resort to one excludes a party from resorting to the other, and in choosing a remedy it is that decision that determines the party’s right to a jury trial. If Waggener had affirmed the contract and requested damages, he would have been guaranteed by Section 5 of the Bill of Rights of the Constitution of the State of Kansas a jury trial since the remedy existed at common law. Waggener chose to disaffirm and rescind the contract. Rescission is a suit in equity and a party is not entitled to a jury trial as a matter of right. When Waggener modified his claim from affirmance to rescission, the issue was not one justiciable at common law; a jury trial was not available. The trial court was correct in denying Waggener a jury trial; the judgment will not be disturbed merely because the wrong reason was given for its rendition. Waggener next claims the court erred in its findings of fact when it determined (1) Seever did not misrepresent that the equipment was new; (2) Seever did not fail to state a material fact in not disclosing the line of equipment sold to Waggener was to be discontinued; and (3) that the equipment sold was usable in the normal course of Waggener’s business. The trial court determined that Seever did not materially misrepresent the equipment sold was new. The trial court stated: “It is the Court’s view that a determination of whether or not Seever violated 50-626(b)(l)(C) turns on the fact question of whether or not the failure to provide a new typewriter cover along with the other equipment is a material deviation from the representations made at the time of sale. A typewriter cover has nothing to do with the operation or performance of the equipment which was the center of the transaction. While Waggener noted upon delivery that the cover was not new, he made no specific demand for a new cover during the 27 day period between July 26 and August 23, 1978. There is no evidence that the cover affected the mechanical operation of the equipment. “The Court concludes that Waggener was furnished new equipment except for the typewriter cover. I find that a typewriter cover is not a material component in a word master word processing system in terms of function or cost. It is a defect which could have been quickly corrected had a specific demand been made. Furnishing a used cover therefore does not materially alter the representation of the product or its newness in this case. Plaintiff s cause of action under KSA 50-626(b)(l)(C) must fail in accordance with the foregoing.” K.S.A. 50-626(fo)(l)(C) provides: “(b) Deceptive acts and practices include . . . “(1) Representations made knowingly or with reason to know that: “(C) property is original or new, if such property has been deteriorated, altered, reconditioned, repossessed or is second-hand or otherwise used to an extent that is materially different from the representation.” There was evidence to support the court’s determination that the equipment was new. Several witnesses for Seever testified that the equipment was new. The trial court found the typewriter cover (housing) was not new, but the cover was not a material component in the system. Waggener argues Seever failed to state a material fact in not disclosing the line of equipment sold to him was to be discontinued. Waggener contends this violated K.S.A. 50-626(h)(3): “[T]he intentional failure to state a material fact or the intentional concealment, suppression or omission of a material fact, whether or not any person has in fact been misled.” The trial court determined Seever did not have knowledge the line of equipment would be discontinued when it was sold to the appellant. The court also determined the discontinuing of the equipment was not a material fact. Larry Seever testified he received official word of the discontinuation in December of 1978, although he heard rumors earlier than this. As to materiality, a fact is material if it is one to which a reasonable person would attach importance in determining the choice of action in the transaction involved. Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P.2d 198 (1973); Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 7, 553 P.2d 315 (1976). A major factor supporting the trial court’s decision is that the discontinuation apparently did not affect the availability of parts or the servicing of the equipment. Waggener asserts Seever violated K.S.A. 50-626(fc)(l)(A) when it stated the equipment was usable in the normal course of the appellant’s business. K.S.A. 50-626(h)(l)(A) provides deceptive acts and practices include representations knowingly made that: “Property or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have.” The trial court found the equipment’s malfunctions were not serious and that the equipment was suitable for use in a law office. Larry Seever testified the problems with the equipment were superficial, and the high number of service calls was not unusual. In reviewing the findings to determine if they are supported by substantial evidence, a reviewing court considers the evidence favorable to the successful party. If there is substantial evidence to support the findings it is of no consequence that there may have been contrary evidence adduced which, if believed, would have supported a different finding. Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. ¶ 1, 524 P.2d 690 (1974). A reviewing court does not pass on the credibility of witnesses or the truth of their testimony. Substantial evidence means evidence possessing something of substance and relevant consequence, and which furnishes substantial basis of fact from which the issues can reasonably be resolved. Mann v. Good, 202 Kan. 631, Syl. ¶ 2, 451 P.2d 233 (1969). There was substantial evidence to support the trial court’s findings in this case. Seever appeals the denial of attorney fees requested pursuant to K.S.A. 1982 Supp. 50-634(e), which provides in part: “Except for services performed by the office of the attorney general or the office of a county or district attorney, the court may award to the prevailing party a reasonable attorney’s fee limited to the work reasonably performed if: “(1) The consumer complaining of the act or practice that violates this act has brought or maintained an action he or she knew to be groundless and the prevailing party is the supplier; or a supplier has committed an act or practice that violates this act and the prevailing party is the consumer.” Seever contends that Waggener knew the action to be groundless when brought. Waggener was correct in his claims that the typewriter housing was not new, the equipment did malfunction, and the line of equipment was discontinued. The trial court, after hearing the evidence, determined that Waggener did not bring an action he knew to be groundless; therefore, Seever was not entitled to attorney fees. The trial court’s denial of attorney fees was correct. Judgment is affirmed.
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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 finding Tanney Thomas Coberly (defendant-appellant) guilty of aggravated kidnapping (K.S.A. 21-3421), indecent liberties with a child (K.S.A. 21-3503) and rape (K.S.A. 21-3502). On October 17, 1981, the defendant telephoned Ms. A., a fifteen-year-old girl, and asked if she could babysit for him for a few hours that evening. Having previously performed this service for the defendant and his wife, Ms. A. obtained permission from her mother and agreed to babysit. Shortly thereafter, around 6:00 p.m., the defendant picked Ms. A. up at her home in Healey, Gove County, Kansas, in his small pickup truck. After driving for a while the defendant told Ms. A. he did not want her to babysit, but wanted her to ride around with him to look at duck ponds. The defendant told Ms. A. he would take her home if she didn’t want to ride around. Not knowing how to explain to her mother that the defendant didn’t want her to babysit after all, Ms. A. continued to ride with the defendant. The defendant drove around in the country, sometimes stopping to look at farm ponds. Ms. A. testified she did not recognize any of the roads they were driving on, and became confused and disoriented as to her location. The defendant tried to kiss her and began touching her. Becoming frightened, Ms. A. told the defendant if he would not take her home she would walk. The defendant told Ms. A., in essence, that if she could find the road to get back home he would take her, or if she would have sex with him he would take her home. Ms. A. replied that she would find her own way home, but found that she couldn’t locate any familiar road signs and was disoriented. Ms. A. testified that once she tried to get out of the truck, but the defendant reached over and shut the door, preventing her escape. The defendant pulled the truck over to the side of the road and stopped. He told Ms. A. to take her clothes off, and when she refused he pulled out a knife and threatened to “run it across [her] throat” if she did not comply with his requests. The defendant then had Ms. A. lie down across the seats of the truck and raped her. He ceased when a car approached from the opposite direction, and walked around the truck to get in the driver’s side. Ms. A. testified she thought about trying to drive the truck off at this time but did not know where the keys were and didn’t know how to drive with a stick shift. The defendant drove to a tavern in Utica where he bought Ms. A. a soft drink and got change. He then drove to Healey, where, at Ms. A.’s request, he dropped her off at a friend’s house. He gave Ms. A. five dollars so that she could say she had been babysitting. It was approximately 10:00 p.m. at this time. Her friend testified Ms. A. appeared scared and shocked, and her eyes were red. After some coaxing Ms. A. said she had been raped by the defendant. Her friend convinced Ms. A. to talk to the sheriff, whereupon they drove to Dighton and contacted the Lane County Sheriff s office. Ms. A. told the sheriff she had been raped by the defendant and was taken to the Lane County hospital where she underwent a physical examination by a doctor who prepared a rape examination kit. This doctor testified at trial there was no evidence of bruising of the victim or trauma to the entrance of the vagina, but the cervix was swollen and cracked, which might have been caused by recent sexual intercourse. Larry Morris, a criminologist with the Kansas Bureau of Investigation who conducted the analysis of the rape kit, testified the fluid taken from Ms. A.’s vagina contained a large number of sperm, indicating she had engaged in intercourse within twelve hours of when the physical examination was conducted. Morris further testified that based upon blood typing tests the defendant could not be excluded as the possible donor of the sperm. The defendant testified he called Ms. A. to babysit for him but remembered after he picked her up that his wife didn’t like her, so he told her she could either go home or look at duck ponds with him. He denied that Ms. A. ever said she wanted to go home or get out of the truck, or that he had tried to kiss her or make any sexual advances toward her. The defendant raises two challenges to the sufficiency of the evidence to sustain a conviction of aggravated kidnapping. Aggravated kidnapping is defined by K.S.A. 21-3421 as kidnapping when bodily harm is inflicted on the person kidnapped. K.S.A. 21-3420 defines the crime of kidnapping as follows: “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; or “(b) To facilitate flight or the commission of any crime; or “(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.” The defendant first maintains there was no evidence from which the jury could have concluded the defendant used any “force, threat or deception” on Ms. A. As to the element of deception the appellant contends it ended when the defendant told her shortly after he picked her up that he didn’t want her to babysit and offered to take her home but Ms. A. elected to continue to ride with the appellant in his truck. The appellant further contends the record is barren of any evidence that he used force or threatened to confine Ms. A. in his truck. In a criminal action where a defendant contends the evidence at trial was insufficient to sustain a conviction, the standard on review is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980). See also State v. Williams, 229 Kan. 290, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981). Count five of the amended information specifically charged the defendant with confining Ms. A. by force, threat or deception with the intent to hold her to facilitate the crime of indecent liberties with a minor and to inflict bodily harm upon her. The instruction to the jury on this charge was substantially the same. Deception is defined in K.S.A. 21-3110(5) as knowingly and willfully making a false statement or representation, express or implied, pertaining tó a present or past existing fact. Here the evidence shows the defendant called Ms. A. and asked her to babysit, but after he picked her up and started driving told her he really didn’t need her to babysit and instead wanted her to ride around with him and look at duck ponds. Arguably the deception ended when Ms. A. in the absence of any plausible reason to tell her parents why the defendant didn’t need her to babysit after all, elected to continue riding with the defendant. It is not necessary to further pursue this issue, because the defendant was charged with confining Ms. A. by force, threat or deception. Ms. A. testified that after the defendant began to make unwelcome advances toward her while they were still driving around she told him several times she wanted him to take her home, .she would walk if he wouldn’t take her, and when she tried to get out of the truck he shut the door, preventing her from leaving. Further, when the defendant offered to take her home in exchange for sex, Ms. A. replied she would find her own way home, but because she was unfamiliar with the area was unable to do so. In State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980), this court noted that kidnapping a child may be accomplished by using minimal force, each case depending on the particular facts of the taking or confining. Sufficient evidence was presented by the evidence from which the jury could have found the defendant confined Ms. A. by force. Next, the defendant maintains the evidence was insufficient to support a conviction of aggravated kidnapping separate from the conviction of rape. Relying on State v. Cabral, 228 Kan. 741, 619 P.2d 1163 (1980) and State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the appellant contends any force or threat used to confine Ms. A. was inherent in the crime of rape and did not make the rape easier to commit or lessen the risk of detection so that the confinement had no significance independent of the rape. In Buggs, the defendant was convicted of rape and kidnapping where he and an accomplice forced the victim and her son to unlock a door and go inside the building they had just left, where the defendant proceeded to rape the victim. This court rejected the defendant’s contention that the movement and confinement of the victim was minor, inconsequential and incidental to the real crimes of robbery and rape, stating: “We therefore construe our statute as requiring no particular distance of removal, nor any particular time or place of confinement. Under our present statute it is still the fact,, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping.” 219 Kan. at 214. The court discussed the elements necessary to establish kidnapping where a taking or confining occurs to facilitate the commission of another crime, holding: “We therefore hold that if a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement: “(a) Must not be slight, inconsequential and merely incidental to the other crime; “(b) Must not be of the kind inherent in the nature of the other crime; and “(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. at 216. In Cabral, the victim and defendant had been together all evening at a bar and had been riding around for some time together by mutual consent with another couple in the defendant’s car. When the defendant began making advances toward her the victim asked to be taken back to where she was staying with her sister. On the way there the defendant pulled into a park, locked the door, drove behind a tree and raped the victim. The court held: “When forcible rape occurs in an automobile, of necessity, some confinement of the woman is a necessary part of the force required in the commission of the rape. Such a confinement is of a kind inherent in the nature of forcible rape and incidental to the commission of the rape. Applying the factors set forth in State v. Buggs, we have concluded that the evidence presented at the trial was not sufficient to establish the independent crime of aggravated kidnapping and that the defendant should be discharged from the conviction on that charge.” 228 Kan. at 744-45. Numerous facets of the present case distinguish it from Cabral. In Cabral, the victim and defendant had been together at a bar throughout the evening and later rode around together for some time with another couple before the victim asked to be taken home. The rape occurred when the victim was being driven home. Here the victim initially accepted a ride with the defendant only because he called her and deceived her into believing he wanted her to babysit. Upon learning this was not true the victim continued to ride with the appellant because of the lack of a plausible explanation for her parents. Contrary to the situation in Cabral, Ms. A. was alone with the defendant in his truck for the entire evening. When it began to get dark and Ms. A. became frightened, the defendant repeatedly refused her requests to take her home unless she could direct the way or have sex with him, and physically prevented her from getting out of the truck and walking home. After this had been going on for some time the defendant stopped the truck and forced Ms. A. to take her clothes off by threatening her with a knife. He then raped her. Unlike the victim in Cabral, it cannot be said Ms. A. was a willing companion of the defendant for the entire time prior to the rape. Applying the factors set forth in Buggs the conduct of the defendant constituted the independent crime of aggravated kidnapping. The confinement was not slight, inconsequential or merely incidental to the crime of rape. Ms. A. was with the defendant in his truck for four hours, during which it became dark, and the appellant drove around in a rural isolated area which was unfamiliar to Ms. A. Much of this time she tried to convince him to take her home. Four hours of driving the victim around against her will cannot be said to be slight or incidental to the other crime. Similarly, the length of the confinement involved here was not inherent in the facilitation of the rape. Finally, by driving Ms. A. to a rural road in an isolated area of the county the defendant substantially reduced the risk of detection. Here there was a confinement to facilitate the commission of the crime of rape. The defendant next contends the offense of indecent liberties with a child is not a crime of “bodily harm” which will support a conviction of aggravated kidnapping. The appellant has confused the element of holding the victim with the intent to facilitate the commission of a crime necessary to prove kidnapping under K.S.A. 21-3420(b) with the additional element of bodily harm required under 21-3421 which distinguishes aggravated kidnapping from simple kidnapping. To establish the underlying crime of kidnapping the State charged that the defendant confined Ms. A. with force, threat or deception, with the intent to hold her to facilitate the crime of indecent liberties with a child as defined by K.S.A. 21-3503. The defendant contends that because proof of force is not necessary to establish the crime of indecent liberties with a child a conviction of aggravated kidnapping cannot be sustained. However, there is no requirement in K.S.A. 21-3420 that the crime used by the State to support the charge of kidnapping must include the element of force or bodily harm. In State v. Tillery, 227 Kan. 342, the crime of indecent liberties with a child was used to support a charge of simple kidnapping. To establish the crime of aggravated kidnapping, the State was required to prove the defendant had inflicted bodily harm upon Ms. A., in addition to confining her with intent to facilitate the commission of the crime of indecent liberties with a child. In numerous cases we have held that rape, nonconsensual intercourse with a woman accomplished by overcoming her insistence by force or fear, constitutes sufficient bodily harm to support a conviction of aggravated kidnapping. State v. Barry, 216 Kan. 609, 533 P.2d 1308 (1974); Sharp v. State, 203 Kan. 937, 457 P.2d 14 (1969); State v. Ayers, 198 Kan. 467, 426 P.2d 21 (1967); State v. Brown, 181 Kan. 375, 389, 312 P.2d 832 (1957). In addition to the crimes of indecent liberties with a child and aggravated kidnapping, the defendant was charged and convicted of rape. The jury was instructed that rape, if proven, constituted bodily harm as an element of aggravated kidnapping. The proof of rape was sufficient evidence of bodily harm to support the conviction of aggravated kidnapping. The defendant next argues the crime of indecent liberties with a child is a lesser included offense of the crime of rape and therefore the two charges are multiplicitous and constitute double jeopardy. K.S.A. 21-3107(2) provides: “Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime; “(b) An attempt to commit the crime charged; “(c) An attempt to commit a lesser degree of the crime charged; or “(d) A crime necessarily proved if the crime charged were proved.” In State v. Arnold, 223 Kan. 715, 717, 576 P.2d 651 (1978), it was held an offense is considered a lesser included offense under K.S.A. 21-3107(2)(d) when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged. In Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973), the defendant was charged with rape, assault with felonious intent, and taking a woman for defilement, all based on one act of violence on one woman. The court held the charges constituted double jeopardy and reversed all but the rape conviction, stating: “Two or more separate convictions cannot be carved out of one criminal delinquency and where numerous charges are made, those which make up an integral part of another crime charged, in which the defendant was convicted, must be dismissed as duplicitous.” 212 Kan. at 173. The court held that the test for duplicity is whether each of the offenses charged requires proof of an additional element of the crime which the other does not, and if an additional fact is required, the offenses are not duplicitous. 212 Kan. at 175. See also State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981); State v. Dorsey, 224 Kan. 152, 155, 578 P.2d 261 (1978); State v. James, 216 Kan. 235, 238, 531 P.2d 70 (1975); State v. Cory, 211 Kan. 528, 530, 506 P.2d 1115 (1973). To establish the crime of rape under K.S.A. 21-3502(l)(a) the State must prove the defendant had sexual intercourse with a woman not his wife and without her consent, which was committed by overcoming the woman’s resistence by force or fear. Rape is a class B felony. The elements of indecent liberties with a child are set forth in K.S.A. 21-3503(1): “Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender: “(a) The act of sexual intercourse; “(b) 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.” This statute replaced the previous offense of statutory rape in K.S.A. 21-424 (Corrick). The defendant was charged with committing the crime of indecent liberties with a child by having sexual intercourse with Ms. A., who was under sixteen years old and not his spouse. Indecent liberties is a class C felony. Indecent liberties with a child is a crime “necessarily proved if the crime charged were proved” under 21-3107(2)(d). When a man forcibly rapes a girl under sixteen years of age he has by that one act committed both rape and indecent liberties with a child. In State v. Lilley, 231 Kan. 694, 696, 647 P.2d 1323 (1982), this court stated that “[i]ndecent liberties with a child could in some cases constitute a lesser included offense of rape.” In that case the defendant raped a fourteen-month-old girl. The court held that an instruction on the lesser included offense of indecent liberties with a child was properly refused by the trial court because the age of the victim prevented her consent and thus no evidence of the lesser offense could have been offered. The State points to State v. Nichols, 212 Kan. 814, 512 P.2d 329 (1973) (indecent liberties with a child and rape), and People v. Davis, 10 Ill. 2d 430, 140 N.E.2d 675, cert. denied 355 U.S. 820 (1957) (rape and statutory rape), in support of its position that charges of rape and indecent liberties with a child arising out of one incident are permissible. While the convictions of these crimes were upheld on appeal, the issue of multiplicity was not raised or addressed by the court in either case. Under all of the facts and circumstances in the present case the crime of indecent liberties with a child was necessarily proved when the evidence presented by the State established that the defendant forcibly raped Ms. A., who was under sixteen years of age. Indecent liberties with a child was therefore a lesser included crime under K.S.A. 21-3107(2)(ri). The evidence here would support a conviction of either, but not both. The defendant argues underK.S.A. 21-3108 and 21-3109 the rape conviction must be set aside. K.S.A. 21-3109 provides in part that where there is a reasonable doubt as to which of two or more degrees of an offense a defendant is guilty he may be convicted of the lowest degree only. Under K.S.A. 21-3108(l)(c) a conviction of an included offense is an acquittal of the offense charged. Here both crimes were charged and the jury was fully instructed concerning indecent liberties with a child and rape. The defendant was found guilty of both. There is no doubt the jury found the defendant guilty of the more serious crime of rape. In Jarrell v. State, 212 Kan. at 175, this court said conviction of forcible rape precludes conviction of the lesser included offense. See also State v. Garnes, 229 Kan. at 374 (dismissing conviction of less serious crime). In this case the crime of indecent liberties with a child was a lesser included offense of forcible rape, and K.S.A. 21-3107(2) bars conviction of indecent liberties with a child. As his final point on appeal the defendant contends the trial court abused its discretion in sentencing him. The defendant was sentenced to life for aggravated kidnapping, fifteen years to life for rape and five to twenty years for indecent liberties, all sentences to run consecutively. These sentences were the maximum statutory limits set forth in K.S.A. 21-4501. Since the conviction for indecent liberties with a child has been set aside, we are only concerned with the consecutive sentences for aggravated kidnapping and rape. Prior to the sentencing of the defendant the State moved to invoke the Habitual Criminal Act, based upon two prior felony convictions of theft. The court denied the motion because the State failed to produce evidence on identification of the defendant necessary under the Act. The court then reviewed in detail the criteriá in K.S.A. 21-4606 for setting minimum terms: “(a) ‘[T]he defendant’s history of prior criminal activity.’ The pre-sentence report would indicate several felony convictions. I can’t use them for Enhancement under the Habitual Criminal Act because the County Attorney failed to produce the identification and evidence necessary for those purposes. Nonetheless, there is an indication of prior criminal activity from this defendant. “(b) ‘The extent of the harm caused by the Defendant’s criminal conduct.’ I would think in this day and age there would be very few people that would [sic (not)] acknowledge that the effect of a forcible rape on a 15 year old girl has potential for great psychological scarring, whether there is any physical harm or not. And, in particular the pre-sentence report indicates that [because] of the attitude of the community in Dighton, Kansas, this young lady and her parents have had to leave their home and move to another area where the defendant’s criminal activities and impact on her family are unknown. Considerable harm obviously was caused. “(c) ‘Whether the defendant intended that his criminal conduct would cause or threaten serious harm.’ The evidence believed by the jury was that the defendant threatened this young lady with a knife at her throat. Obviously that is an intentional act and obviously that is a threat of serious harm. “(d) ‘The degree of the defendant’s provocation.’ There is no evidence that this young lady provoked the defendant in any way, shape or form. As a matter of fact, his position is that they had no sexual intercourse at all, not even consensual. But, all the lab tests refute that. “(e) ‘Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.’ I find none. “(f) ‘Whether the victim of the defendant’s criminal conduct induced or facilitated its commission.’ I find that she didn’t. “(g) ‘Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that she sustained.’ Again I think in addition most of us would recognize that this man’s conviction could not in any conceivable way compensate this x'ape victim for the emotional scarring.” The court then indicated it could find no justification for sentencing the defendant to anything less than the maximum provided by the statute. The defendant argues that because the prior convictions were for nonviolent crimes, there was no physical injury to the victim, and only one act of sexual intercourse took place, the trial court abused its discretion by imposing maximum sentences and ordering them to run consecutively. K.S.A. 21-4608 grants the trial court discretion in determining whether separate sentences imposed on a defendant on the same date shall run concurrently or consecutively. It is a long standing rule in Kansas that this court will not disturb a sentence imposed by a trial court on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive. State v. Words, 226 Kan. 59, 67, 596 P.2d 129 (1979); State v. Buckner, 223 Kan. 138, 150, 574 P.2d 918 (1977). It is necessary the complaining party show vindictive or retaliatory motives, or that judicial discretion was abused, to successfully attack the penalty imposed. State v. Words, 226 Kan. at 67; State v. Eaton, 213 Kan. 86, 89, 515 P.2d 807 (1973). K.S.A. 21-4606 sets forth certain criteria which are to be considered in setting the minimum term to be assessed in any particular sentence. In State v. Buckner, 223 Kan. at 151, this court stated: “[W]e feel that when the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the trial court has abused its discretion.” In this case the trial court fully complied with the statute and the direction of this court in Buckner. There is no showing by the appellant that the sentences imposed by the trial court were arbitrary or the result of any ill will toward the defendant or an impure motive. The trial court believed under the circumstances that a less serious sentence was not justified. This is not a situation where the sentence imposed was disproportionate to that of a codefendant or accomplice, see State v. Reeves, 232 Kan. 143, 652 P.2d 713 (1982), State v. Goering, 225 Kan. 755, 594 P.2d 194 (1979), or the sentence was so inconsistent in comparison to the attending circumstances and evidence introduced at the sentencing hearing as to amount to an abuse of discretion. See State v. Buckner, 223 Kan. 138. Imposition of two or more maximum consecutive sentences have been upheld in numerous cases. See, e.g., State v. Case, 228 Kan. 733, 739-40, 620 P.2d 821 (1980); State v. Bradley, 215 Kan. 642, 648, 527 P.2d 988 (1974). The sentences imposed, while lengthy, are within the limits set by the statute and there is no evidence the trial court abused its discretion. The defendant also contends the court’s consideration of the statement contained in the presentence report concerning the family of Ms. A. moving out of town was improper in that the report was hearsay and was not corroborated by any testimony. The making and use of presentence reports by sentencing courts is expressly authorized by statute. See K.S.A. 21-4601, 21-4603 through -4605. Further, the defendant did not object to the use of this report or this specific statement contained therein, although he was allowed an opportunity to do so. The consideration of this factor by the court while reviewing the criteria in 21-4606 was entirely proper. The judgment of the lower court is affirmed in part and reversed in part.
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The opinion of the court was delivered by McFarland, J.: This is a contract action brought under the Uniform Commercial Code (K.S.A. 84-1-101 et seq.). Plaintiff-appellant, Gerald Smith, contends the district court erred in granting summary judgment in favor of defendant-appellee, Kenneth F. Stewart, on plaintiffs claims of breach of express and implied warranties. In the Fall of 1980 defendant advertised for sale his 1968 42-foot Trojan yacht known as the “Janice Marie II.” Plaintiff saw the advertisement and inspected the boat on the Lake of the Ozarks. Plaintiff was experienced in the operation of boats. He owned a 32-foot boat but had a space problem inasmuch as his family consisted of himself, his wife, and eight children. Plaintiff conferred with defendant about the “Janice Marie II” and operated it on the lake on a trial run. Ultimately, plaintiff decided to purchase the 42-foot boat and the parties drew up a short agreement on November 21, 1980. Plaintiff paid $52,000 for the boat. As a part of the contract, defendant expressly warranted the vessel was free from dry rot and that he would be responsible for any dry rot discovered within six months of date of delivery. Delivery occurred the last weekend in February or the first weekend in March, 1981. Three days after delivery plaintiff notified defendant one of the boat’s fuel tanks was leaking and requested the condition be remedied at defendant’s expense. The parties had several contacts about the fuel tank problem but defendant denied any liability therefor. Ultimately, attorneys were retained by both parties and negotiations continued through counsel. On August 27,1981, while the attorneys continued to negotiate on the fuel tank problem, plaintiff removed the boat from the water and dry rot was discovered on the hull below the waterline. There is a dispute as to whether plaintiff’s counsel orally advised defendant’s counsel of the new problem, but it is uncontroverted plaintiff did not notify defendant personally of the dry rot. On September 22, 1981, this action was filed seeking recovery for repair of the fuel tank on theories of breach of an implied warranty of merchantability and. fitness for a particular purpose and for recovery and for repair of the dry rot on the theory of breach of an express warranty. Subsequently, the fuel tank and dry rot were repaired at plaintiff’s expense. The district court entered summary judgment on both the express warranty and implied warranty claims on the grounds: (1) No cause of action was stated relative to breach of implied warranty of merchantability (K.S.A. 84-2-314) as defendant was not a boat merchant within the meaning of the statute; and (2) Plaintiff’s claim based on implied warranty of fitness for a. particular purpose (K.S.A. 84-2-315) was barred for failure to give notice prior to filing suit pursuant to K.S.A. 84-2-607(3)(a); and (3) Plaintiff’s claim predicated on breach of express warranty was barred by K.S.A. 84-2-607(3)(a) for failure to give notice of the defect prior to filing suit. Plaintiff appeals from said summary judgment. The first issue before us is whether the district court erred in concluding plaintiff had failed to state a cause of action for breach of implied warranty of merchantability. The applicable statute is K.S.A. 84-2-314, which provides in relevant part: “(1) ... a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . . “(2) Goods to be merchantable must be at least such as “(c) are fit for the ordinary purposes for which such goods are used . . . .” (Emphasis supplied.) As noted in the Kansas Comment following the statute: “The obligations of this section are imposed upon merchant-sellers, including manufacturers or growers of goods. A person making a casual sale would not be a merchant (84-2-104) and no warranty of merchantability would apply.” K.S.A. 84-2-104 defines merchant as follows: “(1) ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.” Defendant-seller is a dentist practicing in Overland Park, Kansas. There is no allegation defendant was in the boat-selling business at the time of the sale or any other time. The transaction herein involved the casual sale of seller’s personal pleasure craft. Clearly the district court did not err in holding “the seller [defendant] does not meet the requirement of being a merchant in respect to boats.” The second issue is whether the district court erred in entering summary judgment in favor of defendant on plaintiff’s claim of breach of implied warranty of fitness for a particular purpose (K.S.A. 84-2-315). The district court held: “A cause of action may be made out under K.S.A. .84-2-315, the implied warranty of fitness. Factual questions would be involved surrounding the reliance on the seller’s skill and judgment. However, the plaintiff will still be barred from remedy because of the failure to give notice. [K.S.A. 84-2-607(3)(«).] Again the policy behind the notice requirement is to give the seller an opportunity to correct the defect. There is no difference in the application of this policy whether the warranty is implied or whether it is express. The notice is necessary before filing the action. [Citations omitted.]” We believe the district court properly granted summary judgment on the claim of implied warranty of fitness but erroneously based the same on failure to give notice of the defect pursuant to K.S.A. 84-2-607(3)(a). The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980). It is undisputed plaintiff first notified defendant of the fuel tank problem within a few days of delivery of the boat. Defendant has never challenged the sufficiency of this notice. Contrary to the holding of the district court, we believe plaintiff has failed to state a cause of action based on breach of implied warranty of fitness for a particular purpose. This implied warranty is set forth in K.S.A. 84-2-315 as follows: “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.” The Official UCC Comment following said statute states in pertinent part: “2. A ‘particular purpose’ differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. For example, shoes are generally used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains.” As was stated in International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 639 P.2d 29 (1982): “The provisions of K.S.A. 84-2-315, covering the warranty of fitness for a particular purpose, are frequently confused with the implied warranty of merchantability which covers fitness for ordinary purposes. The warranty of fitness for a particular purpose is narrower, more specific, and more precise. See Addis v. Bernardin, Inc., 226 Kan. 241, 245, 246, 597 P.2d 250 (1979); Christopher & Son v. Kansas Paint & Color Co., 215 Kan. 185, 523 P.2d 709, reh. denied 215 Kan. 510 (1974); and Boehm v. Fox, 473 F.2d 445 (10th Cir. 1973). “In our present case the buyer’s intended use of this equipment in his business was no different than the use of the equipment in any oil well servicing business. No specific use by the defendant buyer was envisaged which was peculiar to the nature of his business. When goods are acquired for the ordinary purposes for which such goods are generally used, no implied warranty of fitness for a particular purpose arises. A use for ordinary purposes falls within the concept of merchantability. So under the facts of the present case no implied warranty of fitness for a particular purpose arose.” 230 Kan. at 461. (Emphasis in original.) Defendant-seller operated the boat as a personal pleasure craft on an inland lake. Plaintiff-buyer purchased the boat for like use. Such usage is well within the ordinary purpose of such goods. There is no allegation that plaintiff’s intended usage of the boat was for a particular purpose as opposed to an ordinary purpose. In his motion for relief from the judgment, plaintiff concedes K.S.A. 84-2-315 “applies only when the buyer indicates to the seller that he intends to use the goods in a manner not customarily made for the goods.” Taking plaintiff’s allegations relative to the dangerous conditions resulting from the leaky fuel tank as true, the defect rendered the boat unfit for ordinary purposes as opposed to unfit for a particular purpose. Under the uncontroverted facts herein, we conclude plaintiff has failed to state a claim of breach of implied warranty of fitness for a particular purpose pursuant to K.S.A. 84-2-315. The district court’s entry of summary judgment on this claim is affirmed although based upon erroneous grounds. The third issue is whether the district court erred in holding plaintiff’s claim for breach of an express warranty was barred by virtue of plaintiff’s failure to give defendant-seller notice of the breach, pursuant to K.S.A. 84-2-607(3)(c), prior to filing suit. Said statute provides in pertinent part: “(3) Where a tender has been accepted “(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy . . . White & Summers, Uniform Commercial Code § 11-10 (2nd ed. 1980), has commented: “One can identify at least three policies behind 2-607. The first and most important reason for requiring notice is to enable the seller to make adjustments or replacements or to suggest opportunities for cure to the end of minimizing the buyer’s loss and reducing the seller’s own liability to the buyer. For example, the purchaser of a truck should tell the seller at once of any defects and procure any necessary replacements and adjustments. He should not allow the truck to sit in his yard for a year and then sue for the profits that he would have made during that year had the truck worked properly. The second policy behind the notice requirement is to afford the seller an opportunity to arm himself for negotiation and litigation. For example, our sources tell us that the Henningsens notified Chrysler so late in their famous case that Chrysler was not even able to find and inspect the automobile in which Mrs. Henningsen was injured. [Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960).] Had Chrysler been able to find the allegedly defective car, it might have been able to present certain defenses or at least have been able to limit the jury’s speculation. A final, and less important policy behind the notice requirement is to give the defendant that same kind of mind balm he gets from the statute of limitations. There is some value in allowing a seller, at some point, to close his books on goods sold in the past and to pass on to other things.” pp. 421-22. We turn to the facts herein. The boat was delivered to plaintiff either the last weekend in February or the first weekend in March 1981. The contract between the parties expressly provided: “Upon the delivery date, Ken Stewart [seller] guarantees that the yacht is free of dry rot and for a period of six months thereafter shall remain free of dry rot. Should any dry rot appear at the time of delivery or within the six-month period, it would be the responsibility of Ken Stewart. If any dry rot appears subsequent to that period of time it is the responsibility of Gerald Smith [buyer].” Defendant-seller concedes “the warranty period ended around the first of September, 1981.” Dry rot was discovered on the hull of the ship when it was removed from the water on August 27, 1981. There is no claim by defendant that the warranty period had expired prior to discovery of the dry rot. It is disputed whether plaintiff’s attorney discussed the dry rot problem with defendant’s attorney prior to filing suit. Inasmuch as it is the propriety of entering summary judgment that is before us, we shall assume no such conversation occurred. This lawsuit, seeking recovery for the defective fuel tank and the dry rot damage, was filed September 22, 1981. Defendant was personally served with summons on September 23, 1981, and had personal knowledge of the dry rot claim as of that date. Defendant contends: “Plaintiff’s failure to notify defendant immediately after the discovery of the dry rot on August 27, 1981, was extremely prejudicial to [defendant]. Even if notice had been given before filing suit, there would be substantial doubt as to whether it met the statutory requirement of reasonableness.” We do not agree. Less than a month elapsed between discovery of the dry rot and the filing of suit. Plaintiff, at his own expense, had the dry rot repaired in October, 1981, and is seeking recovery of said expense. At the time suit was filed each party had already retained counsel relative to an alleged defect in the boat. A copy of the petition was mailed to defense counsel at the time suit was filed, in addition to service of same upon defendant. There is no showing that the three-week gap between discovery of the dry rot and defendant’s awareness of same increased the claim for damages, hindered discovery of evidence to be utilized in defense of the claim, or was unreasonable in any other respect. Defendant’s claim that the delay was “extremely prejudicial” is a bare conclusional statement unsupported by any stated facts. This brings us to the more troublesome aspect of this issue. Was the failure of plaintiff to give notice of the alleged breach of the express warranty prior to filing suit an absolute bar to the claim for recovery of damages therefor? K.S.A. 84-2-607(3)(a) does not expressly state the giving of the notice is a condition precedent to the filing of an action. However, several courts have so interpreted the statute. Dold v. Sherow, 220 Kan. 350, 552 P.2d 945 (1976), was an action to’ recover damages for breach of express and implied warranties involved in a cattle sale. We said: “It is undisputed in the instant case that plaintiff’s petition failed to allege that notice was given; nor was there a general allegation in the petition of fulfillment of all conditions precedent. In fact, the record supports the conclusion that there-was no evidence at trial by either plaintiff or defendant indicating whether notice was given pursuant to 84-2-607(3). “Based on these facts the issue before us boils down to whether plaintiff is barred from any remedy by failure to plead and prove notice. The official UCC comment to 84-2-607(3) [Comment No. 4] notes that ‘the rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.’ By receiving timely notice of an alleged breach the seller is afforded an opportunity to prepare his defenses and govern his conduct accordingly. (Davidson v. Wee, 93 Ariz. 191, 379 P.2d 744 [1963].) “Plaintiff purchased the cows from defendant on January 2, 1973. On January 10, 1973, three of the cows were inspected by a veterinarian and found to be older than represented and without calves. The entire herd was inspected around March 1, 1973, whereupon the extent of the breach was fully discovered by plaintiff. Suit was not brought until eight months later, on November 7, 1973. “We have established that the statutory requirement of notice under 84-2-607(3) is in the nature of a condition precedent which must be pled and proved by the party claiming the breach of warranty. Under K.S.A. 60-209(c) it would have been sufficient for plaintiff to aver generally that all conditions precedent had been performed. (James v. City of Wichita, 202 Kan. 222, 447 P.2d 817 [(1968)].)” 220 Kan. at 352-53. In Lynx, Inc. v. Ordnance Products, 273 Md. 1, 327 A.2d 502 (1974), Maryland’s highest court noted: “Since the existence of a right of action is conditioned upon whether notification has been given the seller by the buyer, where no notice has been given prior to the institution of the action an essential condition precedent to the right to bring the action does not exist and the buyer-plaintiff has lost the right of his ‘remedy.’ Thus the institution of an action by the buyer to recover damages cannot by itself be regarded as a notice of the breach contemplated under either §§ 2-607(3) or 2-608(2). See Smith v. Butler, [19 Md. App. 467, 311 A.2d 813 (1973)]; 2 Anderson, [Uniform Commercial Code, (2nd ed. 1971)], § 2-607:28.” 273 Md. at 17. (Emphasis supplied.) In Armco Steel Corp. v. Isaacson Struct. Steel, 611 P.2d 507 (Alaska 1980), Isaacson brought an action against Armco without having given Armco prelitigation notice of breach. Isaacson contended filing of suit was sufficient notice for purposes of U.C.C. 2-607(3)(a) (Alaska Stat. § 45.05.174(c)(1) [1962], now codified as Alaska Stat. § 45.02.607(c)(1) [1980]). The Alaska Supreme Court did not agree, stating: “In reaching this conclusion, we reject Isaacson’s contention that the complaint it filed in its third-party action against Armco satisfied the notice requirement of AS 45.05.174(c)(1). There are very few cases which deal with this issue, and while a few courts have found pleadings in a lawsuit to be adequate notice under U.C.C. § 2-607, there are also cases to the contrary. The commentators, however, uniformly reject the view that pleadings satisfy the notice requirement. One treatise, for example, comments as follows: “ ‘The notice of the breach of warranty that is contemplated by § 2-607(3) does not contemplate the buyer delivering a summons and complaint to the seller as constituting notice. Section 2-607(3) provides no remedy for a breach of warranty until the buyer has given notice, therefore, summons and complaint cannot constitute notice. “Except for one decision [Silverstein v. R. H. Macy & Co., 266 App. Div. 5, 40 N.Y.S.2d 916 (1943)], which equated the bringing of an action against the seller for breach of contract with sufficient notice, the general rule was, even under the Uniform Sales Act, that notice is a condition precedent to the buyer’s right of action against the seller. “Like the Uniform Sales Act, the Code does not permit the filing of the law suit to constitute notice. . . . “As a commonsense rule, it must be said that it is not within the spirit of fair play and liberal interpretation to consider the commencement of an action as the giving of notice under the Code. 3 A. Squillante & J. Fonseca, Williston on Sales § 22-11, at 308-10, 312-13 (4th ed. 1974) (footnotes omitted). See also id. at 301-02; id. § 22-11, at 53 (Cum. Supp. 1978); 2 R. Anderson, Anderson on the Uniform Commercial Code §2-607:28 (2d ed. 1971); Annot., 17 A.L.R.3d 1010, 1111 (1968). “We believe the commentators represent the better view. We therefore affirm the superior court’s ruling that Isaacson’s third-party complaint did not constitute notice within tire meaning of AS 45.05.174(c)'(l). We agree with the trial court that to conclude that a complaint serves as notice would defeat one of the primary purposes of the notice requirement — settlement of claims and avoidance of litigation.” 611 P.2d at 512-13. Footnote fifteen of the Armco opinion qualifies the strict rule previously set forth, providing: “We note that this decision is reached in a case involving merchants who are litigating a commercial claim. See note 12 supra. A comparably strict application of the notice requirement of AS 45.05.174(c)(1) may not be appropriate in a case involving a consumer s claim of breach. See note 13 supra. See generally Phillips, Notice of Breach in Sales and Strict Tort Liability Law: Should There Be a Difference?, 47 Ind. L.J. 457 (1972). An obligation of good faith is created by AS 45.05.024 & 45.05.040(a)(2), and, even in the commercial setting, if one party has demonstrated a lack of good faith, it might be appropriate to relax the notice requirement somewhat.” 611 P.2d at 513, n. 15. (Emphasis supplied.) A commonly utilized exception to the requirement of giving notice of the defect within a reasonable time is involved in situations where the defective product has caused personal injury. Maybank v. Kresge Co., 302 N.C. 129, 273 S.E.2d 681 (1981), involved a situation where no notice of defect was given prior to filing suit. The North Carolina Supreme Court held: “[T]he question is whether plaintiff has made a prima facie showing that the notice given here — three years after discovery of the defect by the filing of a suit for breach of warranty — constitutes notification within a reasonable time. “Whether a prima facie showing that the notice was given 'within a reasonable time’ has been made can be determined only by examining the particular facts and circumstances of each case and the policies behind the notice requirement. If plaintiff s evidence shows that the policies behind the requirement have not been frustrated and, instead, have been fulfilled, the evidence is sufficient to withstand a directed verdict motion. See J. White & R. Summers, Uniform Commercial Code § 11-10 (2d ed. 1980). “Perhaps the most important policy behind the notice requirement.is enabling the seller to make efforts to cure the breach by making adjustments or replacements in order to minimize the buyer’s damages and the seller’s liability. White & Summers, supra. § 11-10; see L. A. Green Seed Co. v. Williams, 6 U.C.C. Rep. 105, 246 Ark. 463, 438 S.W.2d 717 [(1969)]. This policy obviously has its greatest application in commercial settings where there is an opportunity to minimize losses. However, in cases where the defective goods have caused personal injury, this policy has no application because the damage has already occurred and is irreversible. “Another policy behind the notice requirement is to afford the seller a reasonable opportunity to learn the facts so that he may adequately prepare for negotiation and defend himself in a suit. White & Summers, supra. § 11-10; see e.g., Dold v. Sherow, 220 Kan. 350, 552 P.2d 945 (1976); Berry v. G.D. Searle & Co., 56 Ill. 2d 548, 309 N.E.2d 550 (1974). If a delay operates to deprive the seller of a reasonable opportunity to discover facts which might provide a defense or which might lessen his liability, thus defeating the policy behind the notice requirement, the notice might be said not to have been given within a reasonable time.” 302 N.C. at 134. (Emphasis supplied.) See also Goldstein v. G. D. Searle & Co., 62 Ill. App. 3d 344, 378 N.E.2d 1083, appeal denied 71 Ill. 2d 617 (1978). White & Summers, Uniform Commercial Code § 11-10 (2nd ed. 1980), states: “The cases which rest mostly on the second policy, that is, the policy affording the seller a fair opportunity to arm himself to defend against a suit arising out of an injury caused by the defect, reflect much greater judicial willingness to permit the buyer to dillydally. Indeed, the draftsmen of the comments went out of their way to encourage courts not to close the door too quickly on a ‘retail consumer,’ and one suspects that the draftsmen (and many courts) would tolerate an even longer delay on the part of a retail consumer whose blood has been spilled. Comment 4 to 2-607 states that ‘[a] “reasonable time” for notification from a retail consumer is to be judged by different standards so that in his case it will be extended, for the rule of requiring notification is [not designed] to deprive a good faith consumer of his remedy.’ Not only the draftsmen but also the writers and the courts seem to disfavor the lack of notice defense when invoked against an injured consumer. Indeed, one of the oft cited virtues of strict tort theory is that it does not require notice. The defendant’s lawyer whose client is sued not by a merchant-buyer but by a consumer, especially by a consumer who suffered personal injury or property damage, should not rely heavily on a lack of notice defense. Here the notice policies collide with a countervailing policy that unsophisticated consumers who suffer real and perhaps grievous injury at the hands of the defendant-seller ought to have an easy road to recovery.” p. 423. We agree with the general proposition of law that the giving of notice within a reasonable time to the seller, pursuant to K.S.A. 84-2-607(3)(«), is a condition precedent to filing' an action for recovery of damages for breach of implied or express warranties. Certainly the purpose of K.S.A. 84-2-607(3)(a) previously stated would be thwarted if, for example, a buyer purchased an automobile and two years later, out of the blue, filed an action for breach of warranty stating the vehicle had never operated properly. In the case before us, however, a very different situation exists. Here consumer-buyer notified seller three days after delivery he was dissatisfied with the purchase by virtue of the fuel tank problem. Congeniality turned to hostility as the parties discussed the problem without resolution. Ultimately, each side retained legal counsel and readied themselves for battle. The attorneys were still negotiating when the dry rot problem was discovered on August 27, 1981. Suit on both defects was filed three weeks later. Under the totality of the circumstances herein, none of the purposes of the notice within a reasonable time requirement of K.S.A. 84-2-607(3)(a) would be served by blind adherence to the generally appropriate “condition precedent” concept. As noted in the Official UCC Comment following K.S.A. 84-2-607(3)(a): “4. . . . [T]he rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.” We therefore conclude the district court erred in entering summary judgment, predicated on failure to give notice within a reasonable time, on plaintiff s claim of breach of express warranty. The judgment is affirmed in part, reversed in part, and remanded for further proceedings relative to the claim for breach of express warranty.
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The opinion of the court was delivered by Lockett, J.: This is an appeal by the prosecution from an order of the court dismissing the information and discharging the defendants. The State contends the trial court erred by (1) declaring K.S.A. 1982 Supp. 22-2902a unconstitutional, and (2) determining that the evidence was insufficient to establish probable cause as to the defendant Finley. On June 29, 1982, Detective Garcia of the Wichita Police Department, working as an undercover narcotics detective, purchased a small amount of marijuana from Brian Creekmore. After discussing the possibility of Garcia purchasing cocaine, Creek-more gave Garcia his telephone number. On July 1, 1982, Creekmore and Garcia discussed the sale of a gram of cocaine and several pounds of marijuana. The price of the marijuana was discussed, but Creekmore was unable to state the price of the cocaine. Creekmore told Garcia that he and a friend, Brian McCoy, were attempting to contact McCoy’s man, Richard, to determine cocaine prices. Creekmore and McCoy would attempt to obtain a sample of the cocaine so Garcia could test it. July 2, 1982, Garcia telephoned Creekmore and made arrangements to purchase additional marijuana. At the sale Creek-more told Garcia he was still checking on the price of cocaine. Later, on the evening of July 2, 1982, Creekmore called Garcia and told him “they” had the cocaine, Vz gram, and Garcia could buy it. At an agreed meeting place, Creekmore sold Garcia Vz gram of cocaine for $75.00. Garcia told Creekmore he would take the cocaine to Chris (an undercover narcotics detective) and if Chris liked the cocaine they would get back to Creekmore in a few days. Creekmore had arrived and departed the meeting place in a car driven by McCoy. July 9, 1982, following several days of discussion and other small sales, Creekmore met with Garcia in an attempt to sell Garcia an ounce of cocaine. McCoy was with Creekmore. McCoy assured Garcia that it would be safe for Garcia to front his buy money to them since they had a shotgun and a .22 if somebody tried to rip off Garcia’s money. Garcia refused to make payment before the drugs were delivered and no sale was completed. The parties agreed to get back in touch. July 12, 1982, Garcia called Creekmore and discussed the purchase of cocaine. Creekmore attempted to allay any fears Garcia had about fronting his money. Creekmore told Garcia that Richard was all right, Garcia could trust Richard and that Creek-more had done business with Richard for a long time. The price of the cocaine was $2,200.00 an ounce. Garcia stated he wanted to purchase two ounces of cocaine. Creekmore called Garcia a few minutes later and told him that an unnamed individual would supply the cocaine to Richard and that Richard would be at the sale. The transaction would be at McCoy’s house and only those involved in the sale would be present. Creekmore assured Garcia the cocaine was of the same quality as that purchased on July 2, 88% to 90% pure. Richard would be obtaining the larger quantity in the same manner as the sample purchased July 2, 1982, by Garcia. In a subsequent call, Creekmore stated he could not reach Richard by phone. Creekmore and McCoy were waiting to hear from Richard and when they reached him they would call Garcia if the deal would go through or not. About an hour later Creek-more called Garcia and told him Richard could only get one ounce and that it would cost $2,250.00. Creekmore further stated that he could get the additional cocaine Garcia wanted the next night or the following week. Garcia.could then purchase as much as he wanted because five kilograms were involved. The deal would go down that night at McCoy’s house as planned. Garcia drove to an area near McCoy’s house, met Creekmore, and followed him in his car to McCoy’s house. As they drove up, Garcia saw a car with several people and children in it leaving through the alley that ran behind McCoy’s house. Garcia asked Creekmore who the people were. Creekmore told him they were all right, they were the ones that furnished opium that Creek-more had previously sold Garcia. Creekmore told Garcia he could leave his money in the car if he felt more comfortable doing that. Garcia put the money in the trunk of his car and locked it. While walking to the back door, Creekmore advised Garcia that the only people that were going to be in the house were Garcia, Creekmore, McCoy, Richard, and one other man. McCoy opened the door and told Garcia to come in, they had the stuff. The three men went through the kitchen into the living room where, in addition to Garcia, there were four other people— Creekmore, McCoy, Richard Sherry and Eugene Finley. Finley and Sherry were seated on the couch across from Garcia. Creek-more and McCoy sat on the same side of the room as Garcia. No one else was in the house. Richard then got up, removed a clear plastic bag with white powder in it from a purple Royal Crown bag. Sherry took the white powder over to Garcia, put it on the coffee table by Garcia’s chair, and said, “Here’s the stuff.” Garcia asked Sherry to cut him a line so he could snort some of the cocaine to determine the quality prior to paying his money. McCoy retrieved a small mirror, Sherry took some powder out of the plastic bag and placed it on the mirror in front of Garcia. At this point, Garcia asked if the powder on the mirror was the same stuff that he had gotten the last time. Sherry said, “Yeah, he thought it was.” Finley said, “Yes, it is.” Finley got off the couch, came over to Garcia’s location, and watched Sherry cut a line of powder. Garcia then asked for a straw to snort the powder into his nostril. Sherry took a dollar bill and gave it to Garcia, saying, “Here, use this.” Creekmore reached and took the bill from Sherry and rolled it into a straw and handed it to Garcia. Hesitating in snorting the powder, Garcia asked if he was going to be able to get some more cocaine either tomorrow night or later in the week. Finley stated, “Yeah.” Sherry said he could get as much as he wanted. Police officers then arrived on the scene, arresting the four defendants. On July 14, 1982, a complaint was filed charging Creekmore with Count I, sale of marijuana on June 29; Count II, sale of marijuana on July 2; Creekmore, Finley, Sherry and McCoy were charged in Count III with the sale of cocaine on July 2; and Count IV, possession with intent to sell'cocaine on July 12, 1982. On September 2, 1982, a preliminary examination was held. The State offered Wichita Police Department laboratory reports on each of the four counts. The defendants all objected to the State’s reliance on Chapter 143, 1982 Session Laws of Kansas because it denied them their right of cross-examination. The court ruled that the officers’ testimony identifying the report with the contraband covered by such report was not sufficient proof of the chain of custody and dismissed the complaint as to the defendants. September 3, 1982, the State filed a complaint identical to the one dismissed by the court for insufficient proof of the chain of custody. October 22, 1982, the court held a second preliminary examination on the complaint. The parties agreed to stipulate to the record of the previous preliminary hearing held on September 2, 1982. The State supplied the chain of custody proof and corrected some prior testimony. The defendant Finley moved to dismiss. The court, as magistrate, overruled the motion and bound the defendants over, Finley on Count IV only. The court conducted the arraignment and then, as the trial judge, sustained Finley’s motion to dismiss for the reason that the State did not prove a conspiracy, therefore, the statements of Creekmore were not admitted against Finley, and the evidence to show Finley was acting as an aider and abettor was insufficient since it consisted of only the “two” utterances of the defendant Finley. The court then sustained Sherry’s motion to dismiss for the reason that Chapter 143 of the 1982 Session Laws was unconstitutional. The State appeals. Although the trial judge bound the defendants over for trial, in effect he made a finding that no probable cause existed. The standard of review is whether there was probable cause to bind the defendants over for trial. The trial court stated in dismissing the information against Richard Sherry: “With respect to the defendant Richard T. Sherry, the Court finds that, except for the application of the statute Chapter 143 of the laws of 198 — Session Laws of 1982, the evidence is insufficient and the Court finds that that statute is constitutionally deficient under the Constitution of the State of Kansas, and the United States. It lacks procedural safeguards in that no ácene is set forth for assuring that the chemists employed by the three agencies mentioned in the statute are qualified for their positions; that they are incumbent in the position that they might be certifying as, and a number of other matters with respect to the matter — to the statute, all of which were raised at preliminary hearing — the right of confrontation, the denial of effective assistance of counsel, and denial of equal protection and due process. On that basis, the Court finds that the evidence is insufficient in the preliminary hearing of Richard T. Sherry and dismisses that case for that reason.” Chapter 143 of the 1982 Session Laws amended K.S.A. 22-2902a. The new statute provides: “At any preliminary examination in which the results of a forensic examination, analysis, comparison or identification prepared by the Kansas bureau of investigation, the secretary of health and environment, the sheriff s department of Johnson county or the police department of the city of Wichita are to be introduced as evidence, the report, or a copy of the report, of the findings of the forensic examiner shall be admissible into evidence in the preliminary examination in the same manner and with the same force and effect as if the forensic examiner who performed such examination, analysis, comparison or identification and prepared the report thereon had testified in person.” K.S.A. 1982 Supp. 22-2902a. The new statute replaced K.S.A. 22-2902a and 22-2902b, which provided: “On motion of any party prior to any preliminary examination in which the results of a foi'ensic examination, analysis, comparison or identification px-epared by the Kansas bureau of investigation, the secretary of health and environment, the sheriff s department of Johnson county or the police department of the city of Wichita are to be introduced as evidence, the report, or a copy thereof, of the findings of the forensic examiner shall be admissible into evidence in such preliminary examination in the same manner and with the same foi'ce and effect as if the foi'ensic examiner who performed such examination, analysis, comparison or identification and prepared the report thereon had testified in person, unless the party adverse to the movant shall demand the presence of such forensic examiner at the time such motion is heard by the court. “Such motion shall be made and a hearing held thereon at least five (5) days prior to the date of the preliminary examination.” “Upon the filing of such a motion, a copy of each report of the findings of the forensic examiner shall be delivered to the adverse party, together with a statement advising the adverse party of his right to demand the presence of such forensic examiner pursuant to the provisions of K.S.A. 22-2902a. Failure to receive the said copies of said reports at least three (3) days prior to the hearing of said motion shall be grounds for a continuance.” The procedure for admission of the forensic examiner’s report, of specified agencies, is to insure a more efficient use of the forensic examiner’s timé. Kansas is a state large in size and small in population compared to our sister states. A major portion of the population and those qualified as forensic examiners are located in three geographic areas — Kansas City, Topeka and Wichita. The Legislative Research Department’s summary of the bill containing the new statute supplies an explanation, and the background, of the statute (Supp. Note, H.B. No. 3037 [1982 Session]): “Brief of Bill “H.B. 3037 amends K.S.A. 22-2902a to no longer require the prosecution to file a motion if it intends to introduce a forensic examiner’s report at a preliminary hearing. Such reports would be admissible at the hearing and would have the same force and effect as if the forensic examiner who prepared the report had testified in person. Under current law, the prosecution must file the necessary motion at least five days prior to the pi'eliminary examination. The defendant may demand the presence of the forensic examiner at the hearing of such motion. “Background “H.B. 3037 was introduced at the request of the Kansas Bureau of Investigation as an economy measure. Testimony presented to the House Committee indicated that the majority of the forensic examiner’s time was spent traveling throughout the state and waiting to testify at a hearing while only 5 percent was actually spent testifying at a court proceeding. This bill would reduce the amount of travel time by not requiring the presence of the forensic examiner at the preliminary examination. “It was noted that a defendant could compel the attendance of the forensic examiner at the preliminary hearing by the use of the subpoena power if the defendant so desired.” See Vernon’s Kansas Stat. Annot. § 22-2902b (1983 Supp.). Prior, to considering the specific challenge to the statute, we should review the guidelines used to determine whether or not a statute is constitutional. City of Baxter Springs v. Bryant, 226 Kan. 383, 385-86, 598 P.2d 1051 (1979), sets forth those guidelines: “ ‘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. [Citations omitted.] “ ‘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. [Citations omitted.] “ ‘Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.] “ ‘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. [Citations omitted.]’ State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978). “The general rule for reviewing statutes or ordinances enacted pursuant to the police power is stated in City of Wichita v. White, 205 Kan. 408, 469 P.2d 287 (1970), as follows: “ ‘In reviewing statutes such as these, the court begins with the proposition that all presumptions are in favor of their validity. (State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 77, 410 P.2d 308; and Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128.) The court does not sit in judgment on the merits of such legislation. If the statute here challenged does not contravene significant constitutional or inherent rights of individuals, if the classification on which it is based is reasonable, if it is within the scope of the police powers of the state, if it is appropriately related to a proper purpose of such police power, the statute is not to be invalidated by the judicial arm of government.’ (p. 409.) “In State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 76-77, 410 P.2d 308 (1966), we said: “ ‘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. [Citations omitted.] “ ‘The reasonableness of restrictions imposed by the legislature by the exercise of the police power is a judicial matter, and all presumptions are in favor of constitutionality of the act. Within the zone of doubt and fair debate legislation is conclusive upon the court and must be upheld. [Citations omitted.]’ ” The constitutionality of K.S.A. 1982 Supp. 22-2902a is directly related to what procedure the Constitution of the United States requires in a preliminary examination, and the nature and purpose of the preliminary examination in Kansas. The United States Supreme Court discussed the constitutional requirements of a preliminary examination in Gerstein v. Pugh, 420 U.S. 103, 112-13, 43 L.Ed.2d 54, 95 S.Ct. 854 (1975). They stated: “To implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible. The classic statement of this principle appears in Johnson v. United States, 333 U.S. 10, 13-14 [92 L.Ed. 436, 68 S.Ct. 367 (1948)]: “ ‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ ” The court held the Fourth Amendment, incorporated into the Fourteenth Amendment, requires the states afford a defendant in a criminal case a timely judicial determination of probable cause as a'prerequisite to detention. 420 U.S. at 126. An adversarial hearing is not constitutionally required and the court recognized the potential diversity in procedures among the states: “Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States.” 420 U.S. at 123. The legislature of each state has the power to create a procedure for preliminary examinations. In Kansas, K.S.A. 22-2902(1) requires that every person arrested on a warrant charging a felony shall have a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury. The preliminary examination affords the person arrested as a result of a complaint an opportunity to challenge the existence of probable cause for further detention or for requiring bail. State v. Boone, 218 Kan. 482, 485, 543 P.2d 945 (1975), cert. denied 425 U.S. 915, reh. denied 425 U.S. 985 (1976). The preliminary examination apprises the accused about the nature of the crime charged and the sort of evidence he or she will be required to meet when subjected to final prosecution. State v. Boone, 218 Kan. at 485. The preliminary examination is an important part of Kansas criminal procedure. It is protection for an accused and an instrument for justice. If probable cause is not established at the preliminary examination, no person may be prosecuted for a felony in Kansas, except by grand jury indictment. Although the preliminary examination is very significant, the source of the right to a full adversarial proceeding is statutory. State v. Boone, 218 Kan. 482; State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979). See 1 Wharton’s Criminal Procedure § 144 (12th ed. 1974). This court reviewed the preliminary examination in Kansas in State v. Jones, 233 Kan. 170, Syl. ¶¶ 1, 2, 660 P.2d 965 (1983), stating: “A preliminary examination is not a trial of the defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. “The principal purpose of a preliminary examination is the determination of whether there appears (probable cause) a crime has been committed and there is probable cause to believe the defendant committed the crime. The State need not establish guilt beyond a reasonable doubt.” At the preliminary examination the defendant must be present, represented by an attorney unless that right is waived, and the witnesses examined in the defendant’s presence. The defendant has the right to cross-examine witnesses against him and introduce evidence on his behalf. K.S.A. 22-2902. This testimony, if preserved, may be used at the trial of the defendant, thus the requirement that the rules of evidence apply at this stage of the procedure. The quality of the evidence to obtain the complaint/information is not sufficient for the preliminary examination. Only evidence admissible in the trial of the defendant is to be considered by the magistrate. See State v. Zimmerman & Schmidt, 233 Kan. 151, 660 P.2d 960 (1983); State v. Hunter, 232 Kan. 853, 658 P.2d 1050 (1983). K.S.A. 1982 Supp. 22-2902a, and the constitutional flaws the defendant Sherry alleges are inherent in the statute, must be viewed in light of these principles. The trial court was incorrect when it ruled that K.S.A. 1982 Supp. 22-2902a violated the defendant’s constitutional right of confrontation at the preliminary hearing. There is no constitutional right to allow the accused to confront witnesses against him at the preliminary hearing. Gerstein v. Pugh, 420 U.S. at 121-22. The Sixth Amendment right of confrontation is a protection that exists at the trial of the defendant. If the defendant wishes to examine the qualifications of the forensic examiner, the procedure followed in testing the substance, or the results of the test, he may do so by subpoena, bringing the forensic examiner into court pursuant to K.S.A. 22-3214. A defendant may request discovery pursuant to K.S.A. 22-3212 and 22-3213. Defendants also have the right to have similar or other tests performed by their own experts. Neither is the Sixth Amendment right to counsel devitalized by the new statute. See Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963), 93 A.L.R.2d 733; Schoonover v. State, 2 Kan. App. 2d 481, 582 P.2d 292, rev. denied 225 Kan. 845 (1978). Counsel may use the methods outlined above to effectively represent a defendant. K.S.A. 1982 Supp. 22-2902a does not deny counsel the opportunity to effectively represent a defendant at the preliminary examination or at trial. See Coleman v. Alabama, 399 U.S. 1, 26 L.Ed.2d 387, 90 S.Ct. 1999 (1970). Defendant Sherry next claims that K.S.A. 1982 Supp. 22-2902a violates the equal protection clause of the Fourteenth Amendment. An equal protection challenge was made to the use of nonlawyer magistrates in certain counties of this state based on the population of the county. This court in State v. Boone, 218 Kan. at 489, stated the relevant principles: “Principles respecting the equal protection clause were outlined in Reed v. Reed, 404 U.S. 71, 30 L.ed 2d 225, 92 S.Ct. 251, in this fashion: “ . . [T]hisCourt has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. [Citations.] The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” (pp. 75-76.) “ ‘Legislative classification as to treatment and procedure within a state judicial system according to factors such as geographical area, population, or other relevant considerations, does not deny equal protection of the laws unless such classification is shown to be palpably arbitrary and without a sound basis in reason.’ (p. 370.)” There is a sound basis for allowing the introduction of the forensic examiner’s report into evidence at the preliminary hearing. The legislative treatment and procedure within the state does not deny equal protection of the laws. Defendants in whose prosecution forensic tests are used must subpoena the examiner to assure an appearance at their preliminary examination. Other defendants will be able to cross-examine the witnesses against them at their preliminary examination, if a witness’ testimony is necessary in establishing probable cause. The classification created by K.S.A. 1982 Supp. 22-2902a rests upon the different types of evidence required to prove probable cause. The object of the statute is a more efficient administration of criminal justice. The statutory classification is reasonable and directly related to the object of the legislation. The defendant contends K.S.A. 1982 Supp. 22-2902a violates the due process clause of the Fourteenth Amendment. Due process emphasizes fairness between the state and the individual dealing with the state, regardless of how other individuals in the same situation may be treated. Wesley Medical Center v. McCain, 226 Kan. 263, 265, 597 P.2d 1088 (1979). A basic requirement of due process is the right to a fair trial in a fair tribunal. State v. Boone, 218 Kan. 482, Syl. ¶ 2. K.S.A. 1982 Supp. 22-2902a does not deny the defendant a fair trial. Neither does the statute deny the defendant the opportunity to challenge the existence of probable cause at the preliminary examination. K.S.A. 1982 Supp. 22-2902a does not violate the defendant’s right to due process. The statute does place the burden on the defendant if he wishes to challenge the test results, but it does not frustrate the purpose of the preliminary examination or deny constitutionally protected rights. Finally, the defendant Sherry argues the qualifications of the expert forensic examiner are not established when K.S.A. 1982 Supp. 22-2902a is utilized. See K.S.A. 60-456(£>). The requirement that the rules of evidence apply at the preliminary examination was incorporated by our legislature, and not mandated by the Constitution of the United States. The Constitution does not forbid the states from authorizing the use of hearsay evidence in determining probable cause at the preliminary examination. Gerstein v. Pugh, 420 U.S. at 120. In effect the legislature has required the magistrate at a preliminary examination to take judicial notice of the qualifications of certain forensic examiners, the procedure followed by examiners in performing the test, and the results of that test. The report of the forensic examiner is admitted into evidence at the preliminary examination without the presence of the forensic examiner. The doctrine of judicial notice is based upon obvious reasons of convenience and expediency, and operates to save trouble, expense and time which would be lost in admitting evidence in the ordinary way. Usually such facts do not admit of contradiction. The federal rules of criminal procedure provide a defendant with the right at the preliminary examination to cross-examine the witness against him. The usual rules of evidence are not applied to a preliminary examination in federal court, and the finding of probable cause may be based on hearsay in whole or in part. 1 Wright, Federal Practice and Procedure: Crim. § 85, pp. 183-84 (2d ed. 1982). The Iowa Supreme Court in State v. Kramer, 231 N.W.2d 874, 880 (Iowa 1975), ruled Iowa Code § 749A.2 (1977) constitutional. The statute, now Iowa Code § 691.2 (1983), is much broader than K.S.A. 1982 Supp. 22-2902a. The statute provides: “It shall be presumed that any employee or technician of the criminalistics laboratory is qualified or possesses the required expertise to accomplish any analysis, comparison, or identification done by him in the course of his employment in the criminalistics laboratory. Any report, or copy thereof, or the findings of the criminalistics laboratory shall be received in evidence in any court, preliminary hearing, and grand jury proceeding in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified,in person. An accused person or his attorney may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the proper county attorney at least ten days before the date of such criminal trial.” K.S.A. 1982 Supp. 22-2902a is constitutionally valid. It does not deny a defendant the right to challenge the existence of probable cause, or the opportunity to be apprised of the nature of the crime charged and the sort of evidence he or she will be required to meet when subjected to final prosecution. The State also appeals the dismissal of the charge against Eugene A. Finley. The trial court dismissed the charge against Finley finding that the threshold required to show conspiracy or acting in concert was not shown by the preliminary hearing evidence. Finley’s participation in the crime of possession with intent to sell was based entirely on two utterances of the defendant. The judge found the evidence at the preliminary examination insufficient to establish probable cause. The prosecution relies heavily upon the testimony of Detective Garcia. He testified concerning the drug sales which occurred on June 29, and July 2, 1982. He testified about the involvement of the defendant Creekmore in those sales, and the negotiations between Creek-more and himself in planning the larger July 12, 1982, sale. He then related the events of July 12, preceding the arrests of Finley, Sherry, Creekmore and McCoy. The statements dealing directly with the proposed drug sale made at the house preceding the arrests, and testified to by Detective Garcia, are admissible evidence. They are apart of the res gestae. Acts done or declarations made before, during or after the happening of the principal occurrence may be admissible as part of the res gestae where the acts or declarations are so closely connected with it as to form in reality a part of the occurrence. State v. McDaniel & Owens, 228 Kan. 172, 176, 612 P.2d 1231 (1980). Here the principal occurrence is the intended drug sale. An example of such a declaration in this case is defendant Sherry’s statement “here’s the stuff,” when bringing the cocaine to Garcia. Chief Justice Schroeder discussed-res gestae declarations in State v. Rider, Edens & Lemons, 229 Kan. 394, 404, 625 P.2d 425 (1981): “Unsworn declarations received as part of the res gestae do not depend for then-effect on the credibility of the declarant, but derive probative force from their close connection with the occurrence which they accompany and tend to explain. They are admissible as original evidence, although it is frequently stated that they are received as an exception to the hearsay rule.” See State v. Roberts, 223 Kan. 49, 60, 574 P.2d 164 (1977). Finley does not challenge the admissibility of his two statements at the house on July 12. Finley responded affirmatively to two questions asked by Detective Garcia; the first, if the cocaine was of the same quality as purchased on July 2, and the second, if Garcia could purchase additional cocaine at a later time. Taking into consideration Detective Garcia’s testimony, including Finley’s statements and res gestae statements by the other defendants, we find earlier statements-by the defendant Creek-more in planning the proposed cocaine sale admissible pursuant to K.S.A. 1982 Supp. 60-460(i)(2). The hearsay exception provides: “As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination . . . .” Justice Fromme analyzed the theory behind the exception: “The purpose of the statute is to let in testimony.by a third person concerning declarations of a defendant’s fellow conspirator to prove the defendant’s involvement in a crime. However, before such third party statements can be used as evidence against a defendant there must be evidence a conspiracy 'between the out of court declarant and'defendant actually did exist. The section deals with vicarious admissions included in agency relationships. Wharton’s Criminal Evidence in discussing the section states: “ ‘Where it appears that two or more persons have entered into an agreement to commit a crime — and hence are guilty of conspiracy — any act or declaration of a conspirator during such conspiracy, and in furtherance thereof, is admissible, in a prosecution for the target crime, as substantive evidence against any coconspirator on trial. The theory of admissibility is that each party to an agreement to commit a crime has become an “agent” for the other and has, in effect, entered into a “partnership in crime.” . . .’(3 Wharton’s Criminal Evidence, § 642, pp. 321-327.)” State v. Roberts, 223 Kan. at 59. K.S.A. 1982 Supp. 60-460(i)(2) requires only that the statement be relevant to the plan and be made while the plan was in existence. The statute does not specifically require the statement to be in furtherance of the conspiracy. See Gard, Kansas C. Civ. Proc. Annot. 2d § 60-460(i) (1979); Vernon’s Kansas Stat. Annot. § 60-460(i) (1983 Supp.). A conspiracy may be established by direct proof, or circumstantial evidence, or both. The conspiracy should first be established prima facie, but it is not always possible when using a great amount of circumstantial evidence. However, the whole of the evidence, without the hearsay statements, must show that a conspiracy actually existed. State v. Borserine, 184 Kan. 405, Syl. ¶ 4, 337 P.2d 697 (1959); State v. Marshall & BrownSidorowicz, 2 Kan. App. 2d 182, 198, 577 P.2d 803, rev. denied 225 Kan. 846 (1978). A conspiracy may be inferred from other facts proven. The Court of Appeals has stated: “To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances. “While an agreement is a necessary element of a conspiracy, the existence of the agreement need not be proved directly but may be inferred from other facts proved. If one concurs in a conspiracy, no proof of an agreement to concur is necessary to establish his guilt.” State v. Small, 5 Kan. App. 2d 760, Syl. ¶¶ 2, 3, 625 P.2d 1, rev. denied 229 Kan. 671 (1981). The evidence introduced at the preliminary examination, was sufficient to establish a conspiracy, one in which Finley was a participant. Detective Garcia was about to purchase the cocaine handled by defendant Sherry. The statements made by the five men show an awareness of an imminent cocaine purchase. It is very unlikely an innocent bystander would be allowed to witness this type of serious illegal activity. In addition, Finley responded to questions involving the quality of the cocaine and future purchases of the drug. Earlier statements by defendant Creekmore planning the sale are admissible pursuant to K.S.A. 1982 Supp. 60-460(i)(2) for use against the defendant Finley. See Annot., 46 A.L.R.3d 1148, § 22. We conclude the evidence produced at the preliminary examination establishes probable cause to believe Finley possessed cocaine with intent to sell. Possession requires having control over the cocaine with knowledge of and the intent to have such control. Control would mean exercising a restraining or directing influence over the cocaine. State v. Flinchpaugh, 232 Kan. 831, Syl. ¶¶ 1, 2, 659 P.2d 208 (1983). Finley did not actually handle the cocaine in Garcia’s presence, but from the circumstances and his own statements Finley’s possession with intent to sell may be inferred from the evidence presented, or alternatively that Finley was aiding and abetting Sherry. The evidence need not prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw the inferences favorable to the prosecution from the evidence presented at the preliminary examination. State v. Jones, 233 Kan. 170. A judge reweighing the preliminary examination evidence after arraignment and prior to trial must follow the standard for weighing the evidence as required for the preliminary examination. We conclude probable cause was shown. The case is reversed and remanded with directions to reinstate the complaint against both defendants and for further proceedings in conformity with this opinion.
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The opinion of the court was delivered by Holmes, J.: This is an appeal by the secretary of the Kansas Department of Human Resources (KDHR) and the North Lyon County Teachers’ Association (NLCTA) from an order granting judgment in favor of Unified School District No. 251 in a prohibited practices action initiated pursuant to K.S.A. 72-5430 and K.S.A. 72-5430a. The NLCTA filed a prohibited practices complaint with the KDHR alleging the refusal of the school board to renew the teaching contracts of two of its members, William G. Tolliver and Holly Myers, was based upon those teachers’ activities on behalf of the Association. NLCTA requested the secretary of KDHR to order the school board to reinstate the teachers and to cease and desist from its prohibited practices. U.S.D. No. 251 filed an answer to the complaint and also a motion to dismiss, asserting several grounds including that the complaint filed in behalf of the individual teachers did not allege a prohibited practice and that the KDHR was without authority to grant the relief re quested. In ruling upon the motion, Paul K. Dickhoff, Jr., a labor conciliator with the KDHR, determined: “(1) That the Secretary of Human Resources is granted the authority to rule on any controversy concerning a prohibited practice. (K.S.A. 72-5430a[a].) (2) That a non-renewal based upon an employee’s exercise of his/her right to form, join, or be represented by an employee organization (as alleged by petitioner) does qualify as a prohibited practice. (K.S.A. 72-5430.) (3) That the Secretary is empowered with authority to grant or deny in whole or in part the relief sought by the petitioner. (4) That the complaint filed by Mr. Paul R. Harrison [a representative of NLCTA] in the above captioned matter is within the jurisdiction and is properly before the Secretary of Human Resources for resolution.” Upon receipt of Mr. Dickhoff s letter ruling, U.S.D. No. 251 instituted this action in district court as an appeal pursuant to K.S.A. 72-5430a(b). That statute provides, in part: "(b) The secretary shall make findings of fact upon all the testimony and shall either dismiss the complaint or determine that a prohibited practice has been or is being committed, and shall enter a final order granting or denying in whole or in part the relief sought. Any person aggrieved by a final order of the secretary may obtain a review of such order in the district court, in the judicial district where the principal offices of the pertinent board of education are located, by filing in such court a petition praying that the order of the secretary be modified or set aside, with copy of the complaint filed with the secretary, and thereupon the aggrieved party shall file in the court the record in the proceeding certified by the secretary.” (Emphasis supplied.) Appellants responded with a motion to dismiss the petition on the grounds the ruling of the labor conciliator was not a final order and that the school district had not exhausted its administrative remedies. It is the contention of the school district that rulings (2) and (3) of the labor conciliator are final orders or in the alternative, the trial court, and this court on appeal, should treat the action as one for a declaratory judgment. The trial court overruled the motion to dismiss and entered judgment for the school district making numerous findings favorable to the school district. The secretary of the KDHR and the NLCTA have appealed all of the findings and orders of the trial court. At the outset it must be determined whether the trial court and this court acquired jurisdiction. If the KDHR rulings were final orders and the school board exhausted its administrative remedies, the rulings were appealable but otherwise they were not. The statute K.S.A. 72-5430a provides that in a prohibited practices proceeding the secretary of KDHR shall conduct a hearing, make findings of fact after hearing all the testimony, enter a final order granting or denying relief and then any aggrieved party shall have a right to seek judicial review of the order by a trial de novo in district court. Thus, it is clear the order must be a final order before it is subject to review in district court. In Cusintz v. Cusintz, 195 Kan. 301, 404 P.2d 164 (1965), the court described a final order as follows: “A final order from which an appeal will lie is 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. (Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637.) An order overruling a motion to dismiss an action is not a final or appealable order.” p. 302, In Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 528 P.2d 1232 (1974), this court had before it the question of whether a party to an administrative proceeding must exhaust the administrative remedies before seeking relief in district court. In Jarvis, Joyce Haskins filed a complaint with the Kansas Commission on Civil Rights alleging that she had been wrongfully evicted by her landlord, Jarvis. When the parties could not reach agreement in a conciliation conference, the complaint was set for a hearing by the Commission. Jarvis then brought suit in district court seeking an injunction and declaratory judgment. The district court granted relief to Jarvis and the Commission appealed. This court stated: “The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. A primary purpose of the doctrine is the avoidance of premature interruption of the administrative process. It is normally desirable to let the administrative agency develop the necessary factual background upon which its decisions are based. Since agency decisions are frequently of a discretionary nature, or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. It is more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals. Frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures. [Citations omitted.] “In its action in the district court, respondent has attempted to employ the provisions of the declaratory judgment statute. (K.S.A. 60-1701.) Even if an actual controversy existed between the parties, we cannot permit the use of a declaratory judgment in this situation. The courts should not interfere with administrative proceedings and assume jurisdiction of declaratory judgment proceedings until administrative remedies have been exhausted. (22 Am. Jur. 2d, Declaratory Judgments § 31, p. 881.)” pp. 904-906. In the case now before the court, it is clear that the order of the labor conciliator was not a final order. It did not dispose of the merits of the complaint and was, in fact, entered prior to any hearing or testimony. The attempted action in district court was premature for the reasons it was not an appeal from a final order of the KDHR and U.S.D. No. 251 had not exhausted its administrative remedies. The judgment of the district court is reversed and the case remanded with directions to sustain the defendants’ motions to dismiss.
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The opinion of the court was delivered by Herd, J.: This is an appeal from the trial court’s order terminating a trust and ordering distribution of the trust property. Richard Joseph Rivas (Richard) was originally married to Joan Rivas. Joan had a daughter, Sandra Hill, by a previous marriage. During their marriage Richard and Joan had a son, Richard Michael Rivas (Michael). Richard and Joan were subsequently divorced and a property settlement agreement was entered into on July 14,1964. In paragraph 4 of the agreement Richard agreed to provide seven years of post-secondary education for Michael. This obligation, however, was not to extend past August 31, 1986. Paragraph 5 established an “Insurance Trust” for the benefit of Michael. The trust property consisted of two life insurance policies. The primary beneficiary of the policies was the Johnson County National Bank & Trust Company of Prairie Village, as trustee for the “care, support, maintenance and education” of Michael. Operation of the trust was contingent upon the death of Richard prior to the termination of the obligation set out in paragraph 4. The terms of the trust were fairly standard, calling for liberal exercise of the power of invasion where necessary and stating the trustee’s word would be final and binding on Michael. Paragraph 5(e) of the agreement provided that upon the termination of the obligation undertaken by Richard “the trustee shall reassign title ownership to the aforesaid insurance policies to the husband (Richard) if he' is then living.” In case Richard died prior to the time for reassignment, paragraph 5(f) stated: “[T]he balance of any proceeds and investments, income and principal, remaining after the termination of the obligation, as created in this paragraph entitled ‘5. Insurance Trust’, shall be disposed of in accordance with said husband’s directions or the directions of such other person to whom the husband may have granted a power of appointment with regard to such proceeds and investments.” In February of 1965 the property settlement agreement between Richard and Joan was amended. All the amendments concerned the insurance trust and, according to the document, were “of a technical nature.” Indeed, a quick perusal of the amended agreement reveals no substantive changes. Again, the purpose of the trust was to insure that the obligation of Richard to provide for Michael’s education was fulfilled. Paragraph 5(g) of the amended agreement dealt with reassignment of the trust property to Richard. It stated: “Upon the termination of the obligation to Richard Michael Rivas created under paragraph 4 hereof, for which the husband shall furnish satisfactory proof to the trustee, but in no event later than August 31, 1986, the trustee shall reassign title ownership to the aforesaid insurance policy to the husband if he is then living.” Paragraph 5(h), in turn, provided: “If the husband dies prior to the time for reassignment stated in subparagraph (g) hereof, the balance of any proceeds and the investments, income and principal remaining after the termination of the obligation, as created in this paragraph entitled ‘5. Insurance Trust:’, shall be paid and distributed to those persons to whom the husband has appointed to receive said proceeds by lifetime conveyance or by Will, but if the trustee has no actual knowledge of the execution of such lifetime conveyance or the existence of such appointment by terms of the insured’s Will, or if the insured omits to exercise such appointment, either by lifetime conveyance or by the terms of his Will, the trustee shall distribute said proceeds to the heirs at law of the husband as they then exist and as if the husband had died intestate at that time, a resident of the State of Kansas.” Finally, paragraph 5(i) stated the provisions of the trust were to be construed and administered in accordance with the laws of the State of Kansas. In March of 1965 Richard executed his will. Article II of that document stated: “I hereby exercise the power of appointment given to me by the provisions of Paragraph 5 of the Property Settlement Agreement dated July 14, 1964, between myself and Joan Louise Rivas, as amended on February 15, 1965, so as to appoint free of trust all my interest in the property subject to such power to my son, RICHARD MICHAEL RIVAS, if he survives me, but if he does not survive me, then it is my intention not to exercise said power, and in such event nothing herein contained shall constitute an exercise thereof in whole or in part.” In August of 1968, Richard Rivas remarried. He and his second wife, Carol, had a daughter, Staci Marie. Approximately one year later, on September 16, 1969, Richard Rivas died, a resident of Missouri. On January 5, 1970, the “Notice of Appointment of Trustee” was filed, along with an inventory affidavit and trustee’s bond. Over the next twelve years the Johnson County National Bank administered the trust, making periodic payments to Michael Rivas. However, since Michael never made a serious attempt to further his education, no large disbursements were made and the trust property grew from the initial $35,000 from Richard’s life insurance policy to $48,143.07 on final accounting. On February 26, 1982, Michael Rivas died intestate, a resident of Missouri. On July 14, 1982, the trustee filed a “Petition for Determination of Distribution and Termination” in Johnson County District Court asking the court to terminate the trust and distribute its assets. The administrator of Michael’s estate, Joan Rivas, claimed the trust property, as did Richard’s widow, Carol Rivas, and his daughter Staci. After a hearing and consideration of trial briefs, the trial court ruled in favor of Michael’s estate, holding: “Termination of the trust is mandated by the death of Richard Michael Rivas. The remaining corpus passes by the power of appointment exercised by the grantor in his Last Will and Testament. Said remaining corpus shall be paid and set over to the personal representative of Richard Michael’s estate.” Carol Rivas and her daughter Staci have appealed. The sole issue is whether the trial court erred in terminating the trust and ordering the trust property to be distributed to the administrator of Michael Rivas’ estate. Richard Rivas owned the property. As owner he created the trust for the use and benefit of his son, Michael Rivas. In the trust instrument Richard retained the power through a “lifetime conveyance or by will” to designate the persons to receive the balance of proceeds remaining in the trust after the termination of the trust obligation. Richard Rivas chose to execute a will in 1965 wherein he appointed his son, Richard Michael Rivas, to receive the trust property, if Michael survived Richard. Richard died in 1969 with Michael surviving him. If Richard Rivas’ will is valid the trust property passed by will to Michael Rivas. The trial court so held. Appellants offer two arguments in favor of reversing the trial court’s order. First, they claim Richard Rivas’ will was revoked by his subsequent remarriage and birth of a child. They reason if there was no will Richard did not exercise the power he reserved in paragraph 5(h) of the trust instrument thus leaving the trust property to be distributed to Richard’s heirs at law “as they then exist and as if the husband had died intestate at that time, a resident of the State of Kansas.” This might be a good argument if the laws of Kansas applied in determining the validity of the will. See, e.g., K.S.A. 59-610. Absent a statute to the contrary, however, the validity of a will of personal property depends on the law of the testator’s domicile at the time of his or her death. 16 Am. Jur. 2d, Conflict of Laws § 55, p. 93; 6 Page on Wills § 60.7, 60.16, pp. 458,474 (rev. ed. 1962). In this case that state is Missouri. Mo. Rev. Stat. § 474.400 (1978) provides: “No will in writing, except in the cases herein mentioned, nor any part thereof, shall be revoked, except by a subsequent will' in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction.” Richard Rivas’ will was not revoked pursuant to this statute. Mo. Rev. Stat. § 474.420 (1978) states: “If after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse had died at the time of the divorce. With this exception, no written will, nor any part thereof, can be revoked by any change in the circumstances or condition of the testator.” Since Richard’s will was made after his divorce from Joan, this section is inapplicable. Appellants rely mainly on Mo. Rev. Stat. § 474.240 (1982 Supp.) which states: “1. If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate, unless: “(1) It appears from the will that the omission was intentional; “(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or “(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence; “2. If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate. “3. An illegitimate child is not a child of a male testator, for the purposes of this section, unless the testator, during his lifetime or in the will, recognized the child was his. “4. In satisfying a share provided in this section, the devises made by the will abate as provided in section 473.620, R.S. Mo.” It appears this statute may apply. Staci Marie Rivas was indeed born after the execution of Richard’s will, which made no provision for her. Even if it is applicable, however, it does not act to revoke the will. The Missouri Supreme Court has held that, pursuant to such a statute, the testator is deemed to have died intestate with regard only to the “pretermitted heir.” The will itself is otherwise valid. See Gibson v. Johnson, 331 Mo. 1198, 1204, 56 S.W.2d 783 (1932). Accordingly, appellants’ argument should have been made at the time Richard Rivas’ will was probated. The only question here is the validity of Article II of the will, which merely exercises the power of appointment reserved to Richard under the trust. Pursuant to Missouri law, the will was not revoked and Article II is effective. Appellants also argue the trial court was in error because the power of appointment in Richard’s will was not effective unless Michael survived Richard’s reversionary interest in the trust. They claim Richard’s interest in the trust did not end until the termination of the trust obligation, which would occur when Michael had received seven years of post-secondary education or August 31, 1986, whichever came first. Since Michael did not survive either of these occurrences, they argue, he did not survive Richard’s reversionary interest in the trust and the appointment of Michael to receive the trust property was ineffective. We reject this rationale. The primary consideration in construing a will is, of course, to determine the intent of tire testator. Where that intent is clearly expressed in the will, the court need go no further in making the determination. McClary v. Harbaugh, 231 Kan. 564, 567, 646 P.2d 498 (1982). Plere the plain and unambiguous language of Richard’s will stated his intention to appoint Michael to receive the trust property subject only to the condition that Michael survive him. This condition was obviously met. Michael Rivas was then entitled to have the trust property assigned to him upon the termination of the obligation undertaken in the trust. Although neither of the two methods of termination envisioned by Richard occurred, the trust obligation terminated with the death of Michael. The trust property was properly awarded to his estate. The judgment is affirmed.
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The opinion of the court was delivered by Herd, J.: This is a declaratory judgment action to obtain construction of K.S.A. 21-4302(4). The facts from which this controversy arose disclose appellee Games Management, Inc., is a corporation engaged in the business of placing electronic video card games in various businesses and clubs in Wichita. As a result of threatened prosecution by state and local officials, appellee filed an action to enjoin appellants from declaring the machines gambling devices and instituting prosecution. At time of trial the parties stipulated to an amendment changing the lawsuit to a declaratory judgment action. The evidence adduced at trial showed the appellee owns sixteen machines upon which are played certain video games known as “Double-Up” and “Twenty-One.” Twelve of the machines have been placed in various local businesses. The method of placing the machines is by contract between the appellee and the business or operator. The operator agrees: “[S]aid electronic amusement card game is an amusement device only, and is not a gambling device, and agrees to utilize the same as an amusement device only. Customer agrees not to award, or to offer awards, to any players in cash, or other prizes or gifts of monetary value and further agrees, that the sole and only award given shall be free additional games on said machine(s).” Following the execution of the agreement, the machines are placed by Games Management, Inc., in the places of business, and operations begin. Games Management, Inc., sends an employee to the operator’s place of business to collect the money from the machine. The employee reads the meters in the machine and records the data on a collection ticket, a copy of which is given to the operator and a copy is retained by Games Management. The money is then counted and the operator receives a check for forty percent of the proceeds. In the game of “Double-Up,” a quarter is placed in the coin slot to activate the machine. The player then pushes a button on the front of the machine which is labeled “deal” whereupon five playing cards appear on a color television-type screen. The game is programmed with a minimum standard for a winning hand such as “jacks or better.” The player then must make a decision whether to discard or retain the hand dealt. If he discards any cards, the player must again push the deal button and replacement cards appear on the screen. The object of the game is to attain the best poker hand. The reward for a winning hand is a free replay. The better the hand, the more replays won. The length of a game on the “Double-Up” machine is approximately fourteen seconds. The game of “Twenty-One” is a variation of the poker game known as blackjack. In it the player places a quarter in the coin slot to activate the machine. He then pushes the “deal” button and four cards appear on a color television-type screen. There are two cards dealt to the “dealer” and two cards to the player. The dealer’s cards are dealt one card face up and one card face down. The two cards dealt to the player are both face up. Just as in blackjack the player has the option, after seeing his cards, to receive another card or “stand pat.” The card sequence is predetermined by the program placed in the machine. The player exercises the option by depressing one of two buttons, either “hit” or “stand.” After exercising the option the machine automatically deals cards to the dealer. The side at- taming the score of twenty-one or closest without exceeding it wins. The reward for winning is two free replays for each quarter placed in the machine. The “Twenty-One” machine takes anywhere from eight to ten seconds to play a game. As in all card games the players of either game have no choice as to what cards are dealt. The evidence did not disclose how many cards are programmed in each machine. Obviously, the programmer can place whatever cards in the machine he desires. Evidence was introduced concerning the features of the two machines as well as modifications to them which were done after their arrival in Kansas. Both of the machines had “knock-off’ switches on the side when shipped from the factory. These were removed by the appellee. However, there is still a way in which games can be knocked off by use of the coin hang-up device in the coin slot. This causes an alarm to sound when a coin is in the slot for'more than two-fifteenths of a second. When the “Double-Up” machine was shipped from the factory it could play ten quarters at one time. Also, there was a button which a player could depress which allowed him an opportunity to “double-up” thus giving him a chance to increase the number of games won. Appellee eliminated these features from the machine. The “Twenty-One” machine was originally programmed to play ten coins but was modified by the appellee to play only five at once. The evidence is undisputed that a player receives only free replays in either game as a prize if he wins. After trial the district court ruled the machines are games of chance but the awarding of free games as a prize did not constitute something of value, thus removing them from the definition of a gambling device. The State has appealed. The appellee has filed a cross-appeal challenging the determination that the machines in question are games of chance. The sole issue is whether the trial court erred in holding the machines were not “gambling devices” within the meaning of K.S.A. 21-4302(4). The Kansas legislature has attempted to protect the people of this state from the insidious effect of gambling on the public morals. The criminal code specifies no less than seven offenses which may be charged in relation to this popular pastime. They range from simple “gambling,” K.S.A. 21-4303, which is a class B misdemeanor, to “installing communication facilities for gam biers,” K.S.A. 21-4308, a class E felony. Relevant to this case is “dealing in gambling devices,” K.S.A. 21-4306, also a class E felony. Prosecution of the appellee depends upon whether the machines it deals in are considered “gambling devices.” That term is defined in K.S.A. 21-4302(4): “A ‘gambling device’ is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, or any token, chip, paper, receipt or other document which evidences, purports to evidence or is designed to evidence participation in a lottery or the making of a bet. The fact that the prize is not automatically paid by the device does not affect its character as a gambling device.” Initially it should be noted that penal statutes, such as the one before the court, are to be construed strictly against the State. State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc., 232 Kan. 843, Syl. ¶ 2, 659 P.2d 213 (1983); State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978). Three requirements must be met before a machine such as those involved here can be considered a gambling device: (1) There must be consideration; (2) something of value must be offered; and (3) whether the player wins must be determined by chance. Both parties agree the consideration requirement is met when a player deposits money in the machine. The major argument in this case is whether the free replay which serves as a player’s reward for winning is “something of value” within the meaning of the statute. The final argument, rejected by the trial court, is that these are games of skill and thereby removed from the statutory ban. Prior to 1969, the State’s gambling statutes defined a gambling device as something designed for the purpose of “playing any game of chance for money or property.” G.S. 1949, 21-915; G.S. 1935, 21-1508. In two different cases this court held the replays received by a person who achieves a certain score on a pinball machine were not “property” as envisioned by the gambling statutes. State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 258 P.2d 225 (1953). In 1969 the relevant language was changed from “money or property” to “something of value.” L. 1969, ch. 180, sec. 21-4302(4). Since that time one Kansas case has touched on the issue. In State v. Thirty-six Pinball Machines, 222 Kan. 416, 565 P.2d 236 (1977), the court held the pinball machines involved in the case were not gambling devices per se. A pinball machine “which ‘pays off only in free replays,” the court stated, “is capable of innocent use and is not a gambling device” in and of itself. 222 Kan. at 421-22. In Thirty-six Pinball Machines the court seems to assume a pinball machine could be considered a gambling device if something more than free replays were offered. As such, one implication of the decision is that a free replay on a pinball machine is not something of value. However, the court did not explicitly state what made the pinball machines “capable of innocent use.” It could have been that skill is required to win on a pinball machine. The State’s argument with regard to this issue is well set out in the early case of Kraus v. Cleveland, 135 Ohio St. 43, 46, 19 N.E.2d 159 (1939): “Amusement is a thing of value. Were it not so, it would not be commercialized. The less amusement one receives, the less value he receives, and the more amusement, the more value he receives.” See also Stillmaker v. Dept. of L. C., 18 Ohio St. 2d 200, 249 N.E.2d 61 (1969). The opposite view was offered in Com. v. One Electro-Sport Draw Poker Mach., 297 Pa. Super. 54, 61-62, 443 A.2d 295 (1981), quoting from Wigtons Return, 151 Pa. Super. 337, 343, 30 A.2d 352 (1943): “‘Bearing in mind that penal laws must be strictly construed, we are not persuaded that the legislature intended a definition of gambling broad enough to make unlawful gaming in which the player, in addition to the pleasure of playing, stands to gain nothing but the right to play again without paying for it and the loser to lose nothing but the compulsion to let him play.’” The Electro-Sport case involved a machine with essentially the same characteristics as the “Double-Up” game involved here. The court held no “reward” was present which would allow this machine to be considered a gambling device. See also Com. v. One Electronic Poker Game Machine, 302 Pa. Super. 350, 448 A.2d 1077 (1982). In the broadest sense virtually anything can be considered “something of value.” However, in light of the strict construction required of criminal statutes, the Pennsylvania court offers the better rule. A free replay stays on the machine from which it has been won. It cannpt be exchanged for mpney or other property. If it is not played it is lost. Accordingly, we hold a machine offering only free replays as a prize does not offer “something of value” and is therefore not a gambling device under K.S.A. 21-4302(4). Finally, the State offers an additional argument which deserves our comment. It claims the winners of these games are determined by chance because the cards appear randomly, the player having no control over them. It cites Mills-Jennings v. Dept., 70 Ohio St. 2d 95, 435 N.E.2d 407 (1982), and Angelo Appeal, 62 Pa. Commw. 397, 437 A.2d 67 (1981), which both involved electronic poker games similar to the “Double-Up” game involved here. Though distinguishable these cases offer some help. Here, the card sequences are electronically programmed in each machine, The small amount of skill required to play the games is clearly overshadowed by pure chance. Thus, we hold “Double-Up” and “Twenty-One” are games of chance and therefore “gambling devices” when something of value is received as a prize for winning. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by Lockett, J.: The defendant, David L. Price, appeals from a conviction by a jury of one count of driving under the influence of alcohol, K.S.A. 8-1567, and one count of driving left of center, K.S.A. 8-1514. On September 14, 1982, at approximately 2:40 a.m., while on routine patrol, Officer Wayman T. Carter III discovered an abandoned red pickup truck overturned in a ditch off Fairlawn Road near 61st Street in Shawnee County. The pickup truck had left scuff marks on the gravel road where it had turned sideways. Officer Carter radioed the information to the dispatcher and requested assistance. Officer Roger Lovelace was nearby and arrived at the scene several minutes later. After a check disclosed the truck owner’s address, Officer Lovelace began to search the area. Approximately three miles away from the accident scene, Officer Lovelace found David Price, with blood on his face, walking west on 61st Street. Officer Lovelace asked Price if he had been in an accident and whether he needed medical attention. Price admitted he had been involved in an accident but did not need medical aid. Officer Lovelace told Price to get into his patrol car and he would drive him to the scene of the accident. Price was returned to the scene of the accident at approximately 3:15 a.m. Officer Carter began to question Price to obtain the information necessary to complete an accident report form. When asked how the accident occurred, Price replied that he had been drinking prior to the accident, had fallen asleep while he was driving south on Fairlawn, and ran off the road. Because Price had admitted that he had been drinking and, having an odor of alcohol, Price was asked if he would take a field sobriety test. Price consented and the tests were administered. Price could not recite the alphabet, recite the months of the year consecutively, or balance himself on one leg for five seconds. The officers suspected Price was intoxicated, placed him under arrest, and then advised him of his rights under Miranda. Price was requested and agreed to take the breath test. Officer Carter took Price to the courthouse, arriving at 3:45 a.m. Officer Lovelace administered the breath test at 3:53 a.m.; Price’s breath tested at .27% alcohol. At the courthouse Price answered questions by Officer Carter from a drug and alcohol influence report. Price stated he had been operating his truck and that he had stopped drinking between 12:30 and 1:00 a.m. after having six or seven drinks over a four hour period. A jury of six heard the case and found Price guilty of driving while under the influence of alcohol and of driving left of center of the road. Price appealed. The defendant contends one of the instructions given by the court to the jury stated a conclusive presumption which shifted the burden of proof to the defendant, thereby violating the due process requirement of the Fourteenth Amendment of the United States Constitution. The instruction given was based on K.S.A. 8-1005, which provides: “(a) In any criminal prosecution for violation of the laws of this state relating to driving of a motor vehicle while under the influence of alcohol, or a combination of alcohol and any drug, or the commission of vehicular homicide or manslaughter while under the influence of alcohol, or a combination of alcohol and any drug, or in any prosecution for a violation of a city ordinance relating to the driving of a motor vehicle while under the influence of alcohol, or a combination of alcohol and any drug, evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted and shall give rise to the following presumptions: “(1) If there was at that time less than .10% by weight of alcohol in the defendant’s blood, such fact may be considered with other competent evidence to determine if the defendant was under the influence of a combination of alcohol and any drug; “(2) if there was at the time .10% or more by weight of alcohol in the defendant’s blood, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely. “(h) For the purpose of this section, percent by weight of alcohol shall be based upon grams of alcohol per 100 milliliters of blood.” The instruction stated: “The. law of the State of Kansas provides that a chemical analysis of the defendant’s breath may be taken in order to determine the amount of alcohol in the defendant’s blood. “If the test shows that at the time the test was administered there was less than 0.10 percent by weight of alcohol in the defendant’s blood, you may consider such fact along with other evidence in determining whether or not the defendant was under the influence of alcohol and/or drugs to a degree that rendered him incapable of driving safely at the time the alleged offense occurred. If the test shows that there was 0.10 percent or more by weight of alcohol in the defendant’s blood, you shall presume that at the time the test was administered the defendant was under the influence of alcohol to a degree that rendered him incapable of driving safely. “You are further instructed that the use of a breath test does not reduce the weight of any other evidence on the question of whether or not the defendant was under the influence of alcohol and/or drugs to a degree he could not drive safely at the time of the alleged offense. Therefore, the presumption that the test establishes may or may not be conclusive in this regard and should be considered by you only along with all the other evidence in this case, giving the test such weight and credit you believe it deserves and considering the court’s instructions taken as a whole.” Emphasis supplied. The defendant claims that two deviations from PIK Crim. 2d 70.02 made the trial court’s instruction constitutionally impermissible. PIK Crim. 2d 70.02 states: “The law of the State of Kansas provides that a chemical analysis of the defendant’s (blood) (breath) (urine) (other body substance) may be taken in order to determine the amount of the alcohol in the defendant’s blood at the time the alleged offense occurred. (If a test shows there was .10 percent or more by weight of alcohol in the defendant’s blood, you may assume the defendant was under the influence of alcohol to a degree that [he] [she] was rendered incapable of driving safely. The test result is not conclusive, but it should be considered by you along with all other evidence in this case.) (If a test shows there was less than .10 percent by weight of alcohol in the defendant’s blood, that fact may be considered with other competent evidence to determine if the defendant was under the influence of [alcohol] [drugs] [a combination of alcohol and drugs].) “You are further instructed that evidence derived from a (blood) (breath) (urine) (other body substance) test does not reduce the weight of any other evidence on the question of whether the defendant was under the influence of (alcohol) (drugs) (a combination of alcohol and drugs).” Emphasis supplied. The above instruction was actually published after the defendant’s trial. The PIK Instruction published at the time of trial was PIK Crim. 70.02 (1979 Supp.), which states: “The law of the State of Kansas provides that a chemical analysis of the defendant’s (blood) (breath) may be taken in order to determine the amount of alcohol in the defendant’s blood at the time the alleged offense occurred. If the test shows that at the time there was less than 0.10 percent by weight of alcohol in the defendant’s blood, you shall presume that the defendant was not under the influence of intoxicating liquor. If thé test shows that there was 0.10 percent or more by weight of alcohol in the defendant’s blood, you shall presume that the defendant was under the influence of intoxicating liquor. “You are further instructed that the use of a (blood) (breath) test does not reduce the weight of any other evidence on the question of whether or not the defendant was under the influence of intoxicating liquor. The presumption that the test establishes is not conclusive, but should be considered by you along with all the other evidence in this case.” Emphasis supplied. The first deviation noted by the defendant is the use of the phrase “you shall presume” instead of “you may assume,” contained in PIK Crim. 2d 70.02. PIK Crim. 70.02, which was available at the time of trial, used the phrase “you shall presume.” The jury instructions will generally be controlling in deciding whether a presumption is conclusive or permissive in a case, although their interpretation may require recourse to the statute involved and cases decided under that statute. The defendant concedes K.S.A. 8-1005 does not create a conclusive presumption but the court’s instruction stating “you shall presume” created a conclusive presumption shifting the burden of proof, thereby requiring the defendant to go forward with evidence. There is a distinction between a conclusive and permissive presumption. In a criminal case conclusive presumptions have ordinarily been held unconstitutional on the basis that they invade the province of the jury and shift the burden of proof from the State to the defendant. Permissive presumptions are rebuttable; they do not require the jury to convict after the State has made a prima facie case. The jury is free to return a verdict in favor of the defendant even though the defendant fails to introduce any evidence. In State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973), this court discussed statutory evidentiary presumptions. Syllabi ¶¶ 2 and 3 are instructive. They read: “Statutory presumptions are rebuttable. A rebuttable statutory presumption only governs the burden of going forward with the evidence, and even when it operates against a defendant in a criminal case, it does not alter the ultimate burden of proof resting upon the prosecution, nor deprive the defendant of the benefit of the presumption of innocence. “A statutory presumption will be upheld as constitutional if, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the fact proved and the one presumed; if the defendant has more convenient access to evidence relating to the fact to be presumed; and if, by requiring defendant to go forward with evidence to rebut the presumption, he is not thereby being subjected to unfairness or hardship.” In 1959, G.S. 1949, 8-1005(b) (1957 Supp.) stated in part “it shall be presumed.” This court found the statutory presumption as stated in G.S. 1949, 8-1005 (1957 Supp.) a permissive presumption, one not requiring the jury to find a defendant was under the influence of intoxicating liquor on the basis of the statutory presumption alone. State v. Bailey, 184 Kan. 704, 712, 339 P.2d 45 (1959). The phrase “you shall presume” contained in the trial court’s instruction was a permissive presumption and therefore did not violate the due process clause of the United States Constitution. The other instruction discrepancy claimed by the defendant is the last sentence of the court’s instruction, which stated: “Therefore, the presumption that the test establishes may or may not be conclusive in this regard and should be considered by you only along with all the other evidence in this case, giving the test such weight and credit you believe it deserves and considering the court’s instructions taken as a whole.” PIK Crim. 70.02 states: “The presumption that the test establishes is not conclusive.” PIK Crim. 2d 70.02 states: “The test result is not conclusive.” The phraseology used in each of the instructions is permissive, not conclusive. Each of the instructions discussed is a correct statement of the law. PIK Crim. 2d 70.02 is the clearest statement of the law for instructing a jury for DUI charges. Defendant did not object to the instruction as given at the time of trial. No party may assign as error the giving or failure to give an instruction unless objected to before the jury retires to consider its verdict stating distinctly the matter objected to and grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3); see State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982). Included in the court’s instructions was the following: “The law places the burden upon the State to prove the defendant is guilty. The law does not require the defendant to prove his innocence. Accordingly, you must assume that the defendant is innocent unless you are convinced from all of the evidence in the case that he is guilty. “You should evaluate the evidence admitted in this case and determine the innocence or guilt of the defendant entirely in accordance with these instructions. The test you must use is this: “If you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty. “If you have no reasonable doubt as to the truth of any of them, you should find the defendant guilty.” The propriety of the instructions to the jury is to be gauged by the consideration of the whole, each instruction to be considered in conjunction with all other instructions in the case. State v. Korbel, 231 Kan. at 662. The instructions in this case are not clearly erroneous as a matter of law. Defendant argues the court erred in admitting his statements to the police when he was returned to the scene of the accident. The defendant contends the officers should have advised him of his constitutional rights under Miranda prior to asking him questions contained in the accident report form. The Miranda warning is required where there is a custodial interrogation of the defendant by police officers. Miranda recognized, however, that general on-the-scene questioning of citizens in the fact-finding process does hot constitute custodial interrogation requiring a Miranda warning. We have developed a number of general guidelines to be applied in determining whether or not custodial interrogation has taken place. In State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973), we held that a person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agencies. We have declared that a general questioning of a citizen in the course of an investigation in the fact-finding process does not constitute custodial interrogation. We define an investigatory interrogation as the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage, and where such persons are not in legal custody or deprived of their freedom of action in any significant way. State v. Frizzell, 207 Kan. 393, 485 P.2d 160 (1971). The State has placed the duty on all drivers of vehicles involved in accidents to provide information regarding the facts and circumstances of the accident. Law enforcement officers routinely investigate accidents and insure that proper reports are filed. Here the officers were performing their duty when obtaining the information necessary for the accident report. Police officers traditionally investigate the scene of accidents and during such investigation obtain information from individuals not under restraint. General on-the-scene questioning as to facts surrounding the cause of an accident or other general questioning of citizens in a fact-finding process is not affected by Miranda. It was the defendant’s failure to perform the nonverbal test that finally determined that the defendant should be arrested for DUI. The trial court was correct when it admitted the statements obtained by the officers when completing the accident report. The defendant’s last contention is there was insufficient evidence to prove guilt beyond a reasonable doubt of (1) driving under the influence, and (2) driving left of center. When a defendant challenges the sufficiency of evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a reasonable rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Douglas, 230 Kan. 744, Syl. ¶ 2, 640 P.2d 1259 (1982). There was sufficient evidence for the jury to find the defendant guilty of both charges. The judgment is affirmed.
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This original proceeding in discipline was filed by Arno Windscheffel, Disciplinary Administrator, against Loren H. Hohman, Sr., an attorney duly admitted to practice law in the State of Kansas. Ruth F. Neske employed the respondent, Loren H. Hohman, Sr., to represent her in a personal injury action for injuries received in the State of Nebraska. After an extended period of time the respondent was able to negotiate, in December of 1980, a settlement in the amount of $1,500.00. Mrs. Neske endorsed and returned to respondent an insurance company draft in the agreed amount. Respondent’s fee was one-third of the amount of the settlement and therefore $1,000.00 was due Mrs. Neske. The draft was dated December 10,1980. In addition to the practice of law, the respondent was engaged in the real estate business in Topeka. On February 23, 1981, the respondent deposited the insurance company draft in his real estate trust account. After a demand for payment was made on behalf of Mrs. Neske, she received, in the latter part of April, 1981, a check from respondent drawn on his real estate trust account. Mrs. Neske deposited the check in her savings account in The First National Bank of Topeka. The check was returned for insufficient funds on April 30, 1981. The check was again negotiated through banking channels and was again returned because of insufficient funds on May 6, 1981. Following an additional demand upon respondent, Mrs. Neske received a money order for $1,000.00 from respondent’s office on May 14, 1981. Respondent attempts to assert that the error was caused by his secretary depositing the check in the wrong account and due to errors committed by the bank. Neither contention was borne out at the hearing before a panel of the Kansas Board for Discipline of Attorneys. The evidence is clear that respondent did not maintain a separate trust account for his legal business. The panel of the Board found: “The panel concludes that it has been proven by clear and convincing evidence that the Respondent commingled funds belonging to a client with his own funds in an account maintained incidental to the Respondent’s real estate business; that the Respondent knew or should have known at the time he executed and delivered his check in payment of the client’s part of the insurance recovery that the account upon which the check was drawn had insufficient funds to pay the check. By Order of The Court this 26th day of March, 1983. “The panel further concludes that Respondent delayed an unreasonable time in paying to his clients the client’s share of the funds received in settlement in violation of Disciplinary Rule 9-102.” The panel recommended that respondent be disciplined by public censure and respondent did not file any exceptions to the panel report. Supreme Court Rule 212(d) (230 Kan. cv). On the 18th day of February, 1983, the respondent appeared before this court pursuant to Supreme Court Rule 212(d). A careful examination of the record in this case reveals that the findings and conclusions of the disciplinary panel are correct and supported by clear and convincing evidence. Based upon respondent’s representations to this court that he is now retired from the practice of lav/ and his information as to the serious health problems of Mrs. Hohman, the court has determined that it will accept the recommendation of the Board for Discipline of Attorneys that discipline be limited to public censure. It Is Therefore By The Court Ordered that Loren H. Hohman, Sr., be and he is hereby disciplined by this court by public censure and he is hereby ordered to forthwith pay the costs of this proceeding. It Is Further Ordered that this Order of Public Censure be published in the official Kansas Reports.
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The opinion of the court was delivered by Lockett, J.: The facts were not disputed and are restated in part from In re Estate of Reed, 229 Kan. 431, 625 P.2d 447 (1981) (Reed I). Sarah R. Reed died in the Whippoorwill boating accident on Lake Pomona near Vassar, Kansas, on June 17,1978. At the time of her death, she was Director of the School of Library Science at Emporia State University, and she was a resident of Lyon County, Kansas. Before she came to Kansas she was Assistant Dean of the Graduate Library School at Indiana University in Bloomington, Indiana. While she was living in Indiana she wrote out, in her handwriting and upon a sheet of stationery bearing her name at the top, the following document: “SARAH R. REED June 1, 1973 “This is to indicate my wishes should anything happen to me during the period between now and when I make out a will. “I would like for the following people to have any of my personal and household effects they want: Margaret Griffin (Greenwood Ave.) and Mildred Lowell (Mrs. Wayne) of Bloomington and Pauline Winnick (2800 Quebec Ave., N.W., Washington, D.C. - 201-244-6964). The remaining jewelry goes to Mrs. Robert Johann, 4700 San Jacinto Terrace, Fallbrook, Calif. 92028, since most of it came from her. “All remaining property including contents of First National Bank Safety Deposit Box goes to I. U. Foundation to be added either to the GLS Birthday Fund or to any other GLS fund where it is used for support for GLS Ph. D. students. “Witnessed June 2, 1973 [signed] “Benjamin F. Speller, Jr. [signed] “Bernard M. Fry [signed] “Clara McLeod” The instrument contains no signature in the handwriting of Sarah R. Reed; her name appears only in the engraving at the top of the page. Shortly after Sarah R. Reed’s death, a special administrator was appointed; later, the special administrator filed a petition for the issuance of letters of administration, alleging that Sarah R. Reed died intestate. Attached to the petition was the document copied above, which had been found among the deceased’s possessions. Petitioner alleged that the document was not a duly executed will, but by reason of its contents “petitioner believes that the Court and the persons named in said instrument should be apprised of the existence of said instrument.” An order for hearing was entered and notice given. Indiana University Foundation answered, denying that the decedent died intestate and denying that the instrument dated June 1, 1973, was not a will. Hearing on the petition for letters of administration was held September 29, 1978; both Pauline Winnick and the Foundation appeared by counsel. The court found that Sarah R. Reed died intestate, but added “that the Court’s finding that said Sarah R. Reed died intestate is subject to the introduction of any evidence that may rebut the finding of intestacy, which said evidence must be submitted to the Court within the statutory period.” Letters of administration were issued and administration of the estate proceeded. Afterwards, and within nine months of the date of death of the decedent, both the Foundation and Pauline Winnick filed petitions for admission of the document dated June 1, 1973, as the last will and testament of Sarah R. Reed, deceased. A consolidated hearing was held on the petitions for probate of will on June 12, 1979. The administrator appeared in person and by counsel; all other parties appeared by counsel. At the conclusion of the hearing the court found that the instrument offered for probate “does not constitute a will pursuant to K.S.A. 59-606 because it is not signed at the end or pursuant to K.S.A. 59-609 because the term ‘subscribed’ in the proviso of such statute means ‘signed at the end’, and therefore the petitions for probate of will filed by Indiana University Foundation and Pauline Winnick are dismissed.” Reed I followed. The controlling issue in Reed I was whether the instrument, admittedly executed in Indiana, was “subscribed by the testator” as is required by the proviso of K.S.A. 59-609. Petitioners contended the term “subscribed” in the proviso should be interpreted to mean “signed or authenticated as one’s own.” In support of that contention, petitioners called our attention to K.S.A. 59-2230, which allows foreign probated wills to be admitted to probate in Kansas upon proof of the foreign probate, and contended that if K.S.A. 59-609 was construed to require signing at the end, such a construction would bar the probate in this state of wills executed in jurisdictions which do not require signing at the end, and would be contrary to 59-2230. In Reed I the court examined the history of our statutes governing the execution of wills. Prior to statehood, the Territorial Legislature of 1859 adopted an act providing that except for oral wills, all wills “must be in writing, witnessed by two competent witnesses, and signed by the testator.” L. 1859, ch. 131, § 5, codified as G.L. 1862, ch. 215, § 5. That act was repealed, and new statutes governing wills were enacted in 1865. L. 1865, ch. 86, § 2. The substance of the 1865 act has been carried forward in our probate code through the years. See G.S. 1868, ch. 117, § 2; R.S. 1923, 22-202; G.S. 1935, 22-202; and G.S. 1949, 59-606. Our first statute, other than procedural statutes, dealing specifically with wills executed outside this state was enacted in 1911, and now appears as K.S.A. 59-609. K.S.A. 59-609 had not been heretofore construed by this court, but the court in Reed I reviewed numerous cases dealing with the acts necessary to execute a will under 59-606. (A review of these cases can be found in Reed I.) The court then stated in Reed I: “The proviso of K.S.A. 59-609 has been a part of that section since its original enactment in 1911. Wills executed outside of this state are recognized, whether executed in the manner required by Kansas statutes or the laws of the state in which the will is executed, or by the laws of the state where the testator resided at the time of execution or at the time of his death; but the proviso requires two things of all such wills: they must be in writing, and they must be subscribed by the testator. An oral will, executed outside the confines of Kansas, is not valid in this state; and a will which is not subscribed by the testator is likewise of no force and effect here. . . . “One other argument advanced by appellants should be given attention; that is the argument that to give effect to the proviso of K.S.A. 59-609 would be contrary to the intent of K.S.A. 59-2230, which provides for the probate in this state of wills probated elsewhere. That statute does not mention ‘signing.’ K.S.A. 59-2230 provides in substance that if it appears to the satisfaction of the Kansas court that the will has been duly proved and admitted elsewhere, and that it was executed according to the law of the place where it was made, it shall be admitted to probate here. The instrument before us had not been admitted for probate in Indiana when the proceedings below were held, but counsel advised on oral argument that it has since been admitted in that state. Be that as it may, Indiana statutes clearly require that a will be signed. Ind. Code Ann. §29-1-5-3 [6-503] (a) (Burns, 1980 Supp.), states: “ ‘(a) The execution of a will, other than a nuncupative will, must be by the signature of the testator and of at least two [2] witnesses as follows: “ ‘(1) The testator, in the presence of two [2] or more attesting witnesses, shall signify to them that the instrument is his will and either: “ ‘(i) Sign the will; “ ‘(ii) Acknowledge his signature already made; or “ ‘(iii) At his direction and in his presence have someone else sign his name for him; . . .’ [Emphasis supplied.] “This document is unsigned. Whether it was ‘executed according to the law of the place in which it was made,’ however, we leave for resolution of the appropriate court in the event application for probate is later made under K.S.A. 59-2229, -2230. We leave also for resolution in an appropriate court whether 59-609 and 59-2230 should be considered in pari materia. Such issues are not now before us. “The issue decided above is determinative of this appeal, and other matters raised need not be decided. “The judgment of the trial court, denying the petitions for probate of the instrument dated June 1,1973, and holding that that document is not a will under our statutes, is affirmed.” In re Estate of Reed, 229 Kan. at 437-39. Such issues are now before the court. On September 18, 1980, the Monroe Circuit Court, Monroe County, Indiana, pronounced the document valid for proper admission to probate in the State of Indiana as the will of Sarah R. Reed. Letters of administration with the will annexed were issued by the Indiana court. May 8, 1981, Indiana University Foundation filed a Petition for Probate of a Will Probated Elsewhere in the Lyon County District Court. The petition was pursuant to K.S.A. 59-2229 and 59-2230 and stated Sarah R. Reed had been a resident of the State of Kansas at the time of her death. The District Court-of Lyon County admitted the handwritten document of Sarah R. Reed to probate pursuant to 59-2230 on March 17, 1982. This appeal followed, raising several issues. The first issue is whether the order of the District Court of Lyon County, Kansas, denying original probate of the instrument in Reed I is res judicata as to the admission to probate of the same instrument under the provisions of 59-2229 and -2230. The doctrine of res judicata is appropriate when there is an existing final judgment rendered upon the merits, obtained without fraud or collusion, by a court of competent jurisdiction. Such judgment is conclusive of causes of actions and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other court of concurrent jurisdiction. The issue is res judicata only when there is a concurrence of four conditions; (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. Kumberg v. Kumberg, 232 Kan. 692, Syl. ¶ 6, 659 P.2d 823 (1983); Adamson v. Hill, 202 Kan. 482, 487, 449 P.2d 536 (1969). The issue in the first proceeding (Reed I) was whether or not the document of Sarah R. Reed was entitled to original probate in Kansas under 59-609 as a will executed in Indiana in accordance with Indiana law. We are now faced with the question of whether or not the document is entitled to probate in Kansas under 59-2229 and -2230 based upon an order admitting the will to probate in the State of Indiana. There is no identity between the petition presented to the District Court of Lyon County for probate of a will admitted for probate in Indiana based upon 59-2229 and -2230 and the petition in the earlier proceeding (case No. 78 P 82) for original probate of the document in Kansas under 59-609. The second proceeding is not barred under the doctrine of res judicata. Indiana statutory law provides that Indiana courts have jurisdiction to probate the will of a nondomiciliary decedent and issue letters in any county where the decedent left assets or in any county into which assets come upon the decedent’s death. At her death, Sarah R. Reed was the owner of an account of slightly less than $10,000.00 at the Indiana University Employees Federal Credit Union in Bloomington, Indiana. There were in addition two retirement annuity contracts under which death benefits were paid to Indiana University Foundation in Bloomington. On September 18, 1980, the Indiana court admitted the document of Sarah R. Reed for probate as a will in Indiana. Since the Indiana court admitted the will for probate in Indiana, does the full faith and credit provision of Article IV, § 1 of the Constitution of the United States require recognition of the document by the courts of the State of Kansas as the will of a decedent resident of the State of Kansas? We believe the full faith and credit provision does not require this result. Article IV, § 1 of the Constitution of the United States asserts: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” In 28 U.S.C. § 1738 it states that the judicial proceeding of one jurisdiction shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of the state from which they are taken. It is well recognized that there are limitations upon the extent to which a state may be required by the full faith and credit clause to enforce the judgments of another state in contravention of its own statutes or public policy. A rigid and literal enforcement of the full faith and credit clause, without regard to the statutes of the forum, would lead to the absurd result that, whenever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own. Pacific Ins. Co. v. Comm’n., 306 U.S. 493, 501, 83 L.Ed. 940, 59 S.Ct. 629 (1939). The Indiana court determined: “1. Sarah R. Reed died June 17, 1978, with her domicile being the State of Kansas. “5. Sarah R. Reed was on June 1, 1973, and June 2, 1973, domiciled in the State of Indiana. “6. The execution of the will of Sarah R. Reed meets the requirements of the Indiana Probate Code. “7. Sarah R. Reed in her own name was the owner of Indiana University Credit Union Account No. 183269 with a value on the date of her death of Nine Thousand Five Hundred Fifteen Dollars and Eighty-one Cents ($9,515.81). “8. The will of Sarah R. Reed meets the requirements of the Indiana Probate Code for the probate of the will of Sarah R. Reed, the appointment of a personal representative of the estate of Sarah R. Reed and the issuance of letters testamentary for the estate of Sarah R. Reed. “13. The Teachers Insurance and Annuity Association and College Retirement Equities Fund benefits of Sarah R. Reed were payable upon her death to Indiana University Foundation for the use and benefit of the Graduate Library School of Indiana University, Bloomington, Indiana.” The court concluded: “The will of Sarah R. Reed is a properly executed and witnessed will and, therefore, a valid will qualified for admission to probate in the State of Indiana.” Emphasis supplied. What was the effect of the admission of the document as the will of Sarah R. Reed in the State of Indiana on the State of Kansas? In order for the doctrine of full faith and credit to apply, the court in which the judgment is entered, on whiph judgment recognition is sought in another state under the full faith and credit clause of the Constitution of the United States, must have jurisdiction of the subject matter and of the parties. Indiana had jurisdiction to (1) admit the instrument for probate as a will in Indiana, and (2) jurisdiction to distribute the personal property of Sarah R. Reed within the State of Indiana. In In re Estate of DeLano, 181 Kan. 729, 315 P.2d 611 (1957), Justice Schroeder (now Chief Justice) set forth the law for the administration of an estate regarding personal property located within and that personal property located outside a state: “Two distinct legal propositions entirely separate should be borne in mind. First, that the state where personal property is located (whether tangible or intangible personal property) has full power to administer upon it, pay creditors out of it, and dispose of it within constitutional limitations, or, at its option to permit the courts and administrators of other states to take possession and administer it. Second, under normal circumstances the court where the intestate’s personal property is located will look to the law of the decedent’s domicile to determine heirship, i.e., to determine the persons who succeed to the property and the proportions in which they take. The second proposition is but the usual conflict of laws rule which most courts adopt in order to assure a uniform distribution of all intestate personal property. It is not a mandatory rule, but merely one which most state courts have adopted in the distribution of personal property of a non-resident. Mississippi and Illinois have or had statutes providing that their own intestate laws shall govern distribution of the personal property of a non-resident decedent. (Mississippi Code, 1942 Ann., Vol. 1 A, § 467; and Sec. 1 of the Illinois Descent Act, § 1872, as amended by Laws 1929, p. 359, § 1, Smith-Hurd Statutes, ch. 39, § I.) This they are free to do because under the proposition first mentioned they have the absolute and final jurisdiction to determine the disposition of personal property within the borders of the state. The United States Supreme Court cases hereafter discussed will show the first proposition to be a fundamental rule of jurisdiction and the second a matter of comity. “In the event of any conflicting jurisdictional claims between the states of the union, the ultimate arbiter is the United States Supreme Court. Its opinions and decisions make it abundantly clear that the state of actual situs of the intangible has the undeniable legal and constitutional right to administer upon it, to the exclusion of all other states, and particularly to the exclusion of the decedent’s domicile. [Citations omitted.] “Appellants assert what they contend are two recognized exceptions to the full faith and credit doctrine. First, a second forum may refuse to recognize a foreign decree on the basis of public policy, [citations omitted] and second, that the second forum may also refuse full faith and credit upon a determination that the first forum did not have jurisdiction over the person or subject matter, citing Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279. “It is elementary that judicial proceedings upon property in the absence of jurisdiction over that property, lacks and denies due process of law within the meaning of the fourteenth amendment. A statute which permits and directs such judicial proceedings is void for the same reason. This is exemplified in the Restatement of Law, Conflict of Laws, § 43: “ ‘If a State attempts to exercise power by creating interests with respect to persons or things which it has no jurisdiction to create, its action is in violation of the Fourteenth Amendment to the Constitution and is void in the State itself. The Supreme Court of the United States may review all cases whether from a lower Federal court or from a State court of last resort which involve a question of the exercise of power on the part of a State when it has no jurisdiction.’ (Comment a.)” 181 Kan. at 736-46. Full faith and credit must be given to judgments of sister states, but no greater faith and credit than is due the judgment in the state in which it was rendered. Under the law of Indiana, the Monroe Circuit Court had the power to distribute personal property located within the state of Indiana. The Monroe Circuit Court in Indiana neither claimed nor had jurisdiction to determine that the instrument written by Sarah R. Reed was a valid will properly executed according to the laws of the State of Kansas, nor did the Indiana court claim or have jurisdiction to distribute real or personal property of Sarah R. Reed located outside the State of Indiana. When a person dies and leaves property in a state other than his domicile, it may be necessary to prove a will or take out an administration there. Under the common law, courts of states where real property is located have jurisdiction to probate a will devising the property and determine the sufficiency of the form of the will. Kansas and Indiana determined that Sarah R. Reed died while a resident of the State of Kansas. Each court determined that there was no realty located in Indiana. The real property owned by Sarah R. Reed was located in Lyon County, Kansas, and subject to the probate proceeding filed in the Lyon District Court. Appellants claim that the provisions of 59-2229 and -2230 do not apply to the will of a decedent who was a resident of the State of Kansas on the date of her death; that 59-2229 and -2230 are procedural statutes to be used in conjunction with K.S.A. 59-806 to prove or admit a foreign will óf a nonresident for probate. We agree. What is a foreign will? There is no definition of the term “foreign will” contained in the Kansas statutes or case law. Black’s Law Dictionary 583 (5th ed. 1979) defines the term as follows: “Foreign will. Will of person not domiciled within state at time of death. De Tray v. Hardgrove, Tex. Com. App., 52 S.W.2d 239, 240.” The term foreign will is defined in 95 C.J.S., Wills § 340, p. 190 as follows: “A ‘foreign will’ is the will of a person who is not domiciled within the state at the time of his death, or a will made in another state bya testator residing there.” Sarah R. Reed was a resident of the State of Kansas at the time of her death; therefore, the instrument in question could not be considered a foreign will under the preceding definitions. The 1939 Kansas Probate Code was primarily the work of Samuel E. Bartlett, a practicing attorney in Ellsworth, Kansas. A draft of Bartlett’s proposed probate code first appeared in the April, 1938, issue of the Kansas Judicial Council Bulletin. What are now K.S.A. 59-2229 and 59-2230 (prior to the 1982 amendment) appear in that draft exactly as they appear today in the statute book. Bartlett’s draft of what is now K.S.A. 59-2229 and 59-2230 (prior to the 1982 amendment) is adopted from the Uniform Wills Act, Foreign Probated, a uniform law which was approved for adoption by the National Conference of Commissioners on Uniform State Laws in 1915. Bartlett acknowledges such source for these two sections of his draft in the December, 1938 issue of the Kansas Judicial Council Bulletin. The Uniform Wills Act, Foreign Probated, was withdrawn by the National Conference in 1943 and a new Uniform Probate of Foreign Wills Act was approved in 1950. The 1950 Act was (and is) specifically limited to wills of testators who die domiciled outside of the state applying the Act. The 1915 Uniform Act did not make this distinction. The legislature made no change in 59-2229 and -2230 either when the 1915 Uniform Act was withdrawn or when the 1950 Uniform Act was approved even though there was a significant change in the uniform law, i.e., after 1950 the uniform law expressly stated that it applied only to nondomiciliaries. Uniform laws are drafted and recommended to the legislatures of the various states for adoption. The principal object of uniform state laws is to provide, as far as possible, uniform laws on subjects involved that would be common to all the states adopt ing them. They are adopted to remove doubts as to controlling rules of law on the subjects involved and are intended to secure not only identity of the statute, but also uniformity in decision. Such uniform laws are decisive as to all matters comprehended within their terms. 73 Am. Jur. 2d, Statutes § 32, p. 287. When the legislature adopts a statute from a uniform law, it carries with it the construction placed upon that statute by the drafters except when such construction is contrary to the constitution or public policy of the adopting state. In determining the legislative intent, courts are not limited to mere consideration of the language employed but may properly look into the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under various constructions suggested. State v. Luginbill, 223 Kan. 15, 574 P.2d 140 (1977). The 1982 legislature amended 59-2229 and -2230. K.S.A. 1982 Supp. 59-2229 provides: “When a copy of a will executed outside this state and the probate thereof, duly authenticated, is presented by the executor or any other person interested in the will, with a petition for the probate thereof, the court shall fix the time and place for the hearing of the petition, notice of which shall be given to such persons and in such manner as the court shall direct, if the petition is filed within five years after the death of the testator. The title of any purchaser in good faith, without knowledge of the will, to any property derived from the fiduciary, heirs, devisees or legatees of the decedent shall not be defeated by the production of the will of the decedent and the petition for probate thereof after the expiration of nine months from the death of the decedent.” K.S.A. 1982 Supp. 59-2230 provides: “If, upon the hearing, it appears to the satisfaction of the court that the will of a resident or nonresident has been proved and admitted to probate outside this state and that it was executed according to the law of the place in which it was made, or in which the testator resided at the time of its execution or of the testator’s death or in conformity with the laws of this state, it shall be admitted to probate with the same force and effect as the original probate of a will.” The purpose of the amendments is to create a procedure for probating an instrument executed outside this state, not conforming to requirements of Kansas, but conforming to the laws of the state where the instrument was executed, as a valid will of a resident or a nonresident of Kansas. The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 629 P.2d 187 (1981). Appellees claim that if K.S.A. 1982 Supp. 59-2229 and 59-2230 are procedural statutes allowing the will of a resident approved and admitted to probate, executed according to the law of the place where made, they should be applied retroactively. The statutes do not express an intent to have been applied retroactively. A statute operates prospectively unless the statute clearly expresses a legislative intent to have the statute applied retrospectively. Thome v. City of Newton, 229 Kan. 375, Syl. ¶ 6, 624 P.2d 454 (1981). Attempts to probate the instruments were commenced May 8, 1981. The amended statute became effective July 1,1982, more than one year after the attempt to probate. Our statutes relating to will and probate procedure have been strictly construed even though in some rare situations the intent of a testator' may be frustrated. The statutes were not retroactive; therefore, the instrument cannot be admitted as a will under the amended statutes. Should the administrator, who was appointed prior to the district court’s order admitting the will to probate, be allowed to appeal that order? On occasion, after letters of administration have been granted on the assumption that the decedent died intestate, a will executed by the decedent appears. Kansas is one of the jurisdictions that has a statute designed to handle this problem. K.S.A. 59-707 provides: “If, after the appointment of an administrator, a will is admitted to probate, the powers of such administrator shall cease, and he or she shall proceed to final accounting. The new executor or administrator with the will annexed shall continue the administration.” The actual probate of a will imposes a duty on the court to revoke any existing letters of administration. The granting of the second administration ipso facto supersedes the first administration. The former administrator is required to settle his accounts and has no further power since that administration has been terminated. The acts of the administrator done in good faith under the letters of administration are free from collateral attack. The acts of the former administrator are binding on the parties interested in the estate, including the subsequently named executor. Those who have dealt with the former administrator in good faith are protected. Generally, for one to be entitled to oppose or contest the probate of a will, it is necessary that he be a person interested in the estate or the operation of the will. Whether an administrator of an estate is entitled to contest a will of his decedent there is a split of authority. On the one hand, it has frequently been held that the administrator does not have sufficient interest to entitle him to contest the will of his decedent. However, there is authority that an administrator may be qualified to contest the will of his decedent. It has been held that the basis of such right is the fact that he represents those who would be entitled to the estate, or hold the assets on their behalf, and hence has the right to see that no testamentary paper is admitted to probate unless genuine. (For an in depth study see Hill v. District Court, 126 Mont. 1, 242 P.2d 850 [1952], 31 A.L.R.2d 749.) Where a statute, in providing for the contest of a will, sets forth such persons who are entitled to contest a will, the statute controls. K.S.A. 1982 Supp. 59-2224 states in part: “Any heir, devisee, or legatee may prosecute or oppose the probate of any will . . . Therefore, the administrator may not contest the probate of the will of her decedent. The judgment of the trial court holding that the document is a will under our statutes and admitting it for probate is reversed.
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The opinion of the court was delivered by Mason, J.: The holder of the original title recovered in ejectment against one claiming under a tax deed, who appeals. The tax deed was not introduced in evidence, but its execution was admitted. Nothing having been shown to the contrary, it must be presumed that it was regularly issued and valid in all respects. Of course a party relying upon a tax deed could not be permitted to testify that one had been issued to him, and thereby secure the benefit of the presumption of regularity, without subjecting'the instrument to objection for defects appearing upon its face; but where the opponent voluntarily admits that a tax deed was executed the presumption that public officers do their duty requires the court in the absence of any further showing to re gard it as valid. The defendant admitted that “the plaintiff by a chain of title from the government is the owner of the original title.” The suggestion is made that this implies that the tax deed is invalid, since otherwise it would have extinguished the original title. Such an interpretation would extend the admission beyond its obvious, meaning. “ The tax deed was issued and recorded March 31, 1899. The grantee at once occupied the property and held it for four years. Such at least was the defendant’s evidence, and as its truth does not seem to have been challenged we shall assume that the court believed it. In the spring of 1903 the original owner (the plaintiff) obtained possession, which continued for more than two years. Then the tax-title claimant (the defendant) acquired possession, which she maintained until the beginning of the action, November 24r 1908. The plaintiff contends that when he took possession of the property in 1903 the statute of limitations (Civ; Code, § 15, subdiv. 3) began to run in his favor; that in two years its bar became complete; and that thereupon the tax title was practically extinguished, and its holder could neither maintain ejectment, nor by taking physical possession acquire a standing to resist such an action when brought by the original owner. This would doubtless be the rule if between the issuance of the tax deed and the taking of possession by the original owner the land had remained vacant and unoccupied. The statute would in that case have begun to-run when the original owner took possession, and when such possession had continued for two years all right of action on the part of the tax-deed holder would have been lost. (Coale v. Campbell, 58 Kan. 480.) And when the statute has once run against a tax deed the holder can not evade its effect merely by finding the premises temporarily unoccupied and taking physical possession. But when in the present case the grantee of the tax deed, immediately upon its being recorded, obtained actual, peaceable and undisputed possession of the tract conveyed, the two-year statute of limitation could no longer apply. A valid tax deed vests a perfect title in the grantee and extinguishes the original title, subject to the condition, imposed by the statute of limitation, that the right of possession must be asserted before there has been an adverse occupancy for two years. But the obtaining of actual possession under the tax deed satisfies this condition as effectually as though a successful action of ejectment had been instituted. Thereafter the tax-title holder claims not merely under the tax deed, but under the tax deed supplemented by a legal taking of possession. His title has become absolute, and if he loses possession his right to its recovery endures until it is barred by the general statute of limitations. It follows from this view that if the tax deed is in fact valid in all respects the defendant is entitled to judgment, however her present possession was acquired, since her earlier possession made her the absolute owner of the property. If the deed is invalid upon its face she of course can not recover, for she then has no title. But as it may develop that the deed is apparently good, but is voidable for some latent defect, we are required to decide the effect of that condition, under whatever changes 'of possession may be shown at a new trial. Speaking of that kind of a tax deed, if the land affected remains vacant for five years after it has been recorded, and the patent-title holder then takes possession, the tax-title holder can not maintain ejectment, for in that situation he can not invoke the benefit of the five-year statute of limitations (Laws 1876, ch. 34, § 141, Gen. Stat. 1909, § 9483) to prevent an inquiry into the proceedings .back of his deed. (Stump v. Burnett, 67 Kan. 589.) The fact that the tax-title holder at one time had actual possession does not change the rule, if he lost it before the five years had expired. Inasmuch as the original owner can within five years successfully prosecute ejectment, it follows that if within that period he obtains actual possession, he has only procured what the law would give him, and he can maintain it whenever attacked by -showing the invalidity of the tax deed.' But if the tax-deed holder, before the two-year statute has run against him, and before the five-year statute has run in his favor, obtains actual possession, and does not voluntarily surrender it, he can not after the five years has run be dispossessed, either by action or by taking of physical possession during his temporary absence. And if without his consent or acquiescence the original owner does take possession after the five years has run, the tax-title holder may maintain ejectment and the statute will protect his deed from attack for any defects not showing upon its face. So if the land remains absolutely vacant for five years-after the tax deed is recorded, and the holder of the tax title then gains possession, he need not maintain a constant guard against intrusion. So long as he does not abandon control — so long as he stands upon the rights he has acquired — he may invoke the aid of the courts to restore to him a possession which he has already enjoyed under a title conferred by the tax deed and confirmed by the five-year statute of limitation and actual occupancy. In such a situation he is not asking to be giveh some new or additional right or title because of the statute of limitations; he is only asking protection in what he has already lawfully obtained. On the other hand, the holder of a voidable tax deed which has been recorded for more than five years can not thereafter gain, the right to the protection of the five-year statute of limitation in its support by taking physical possession on finding the property temporarily vacant, where the original owner is undertaking to maintain his occupancy of the property. The original owner by obtaining possession has in effect challenged the validity of the deed within the five years. Stated in general terms, the' proposition is this: Where there has been an actual occupation, after the issuance of a tax deed, by the original owner or the holder of the tax title, the opposing claimant, by gaining possession before the statute of limitations has barred his right, can stay its operation against himself; but he can not by merely getting a physical possession and compelling the former occupant to take the offensive either gain a right to the protection of the statute of limitations himself or deprive his adversary of such a right. This would of course be true where his possession was procured by force, by fraud, or by stealth. (Nicholson v. Hale, 73 Kan. 599.) It is equally true where he is enabled to take possession because the use to which the adverse claimant puts the property leaves it for a part of the time without an actual occupant. In the present case no one appears to have resided on the property at any time, and there seems to have been no building thereon. The plaintiff, beginning with 1903, had leased it from year to year for several years to a tenant who raised a crop each season, and it was the expectation that the same tenant would occupy it for the next year. But between the harvesting of one crop and the putting in of another the defendant, finding no one at the time upon the premises, took possession. There was no voluntary surrender or abandonment of possession by the plaintiff. His occupancy’ had been practically continuous, and as complete as the nature of the tract admitted. (Buehler v. Teetor, ante, p. 281.) The defendant by taking possession under such circumstances acquired no right to claim the protection of a statute of limitation which she could not have invoked if she herself had brought ejectment. Therefore the plaintiff upon a new trial should have opportunity to challenge the tax deed for defects. not shown upon its face, if the facts relating to possession prove to be as they now appear. The judgment is reversed and the cause remanded for further proceedings in accordance herewith. Nothing herein said, however, is intended to conclude the district court as to the facts.
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The opinion of the court was delivered by Burch, J.: The action in the district court was brought to set aside the will of George W. Parker, deceased. The grounds were, want of execution by the testator, want of proper attestation, want of testamentary capacity, and fraud and undue influence practiced by two of the beneficiaries. At the trial the advice of a jury was taken upon the questions of fact involved. Afterward the court set aside some of the findings of the jury, adopted the others, and made findings of its own contrary to those of the jury which were set aside. The result was that all the issues were found against the contestants and judgment was rendered upholding the will. The greater part of the brief for the plaintiffs is devoted to an argument that the testimony shows the facts to be different from what the court found them to be. Every finding of the court is sustained by an abundance of competent evidence. That ends the controversy in this court over what the evidence proves. It is claimed, however, that one of the important findings was induced by a misconception of the law; or, stated in another way, that the finding is contrary to law. This contention arises upon the following facts: The will was written on January 20, 1905, in the office of H. L. Burgess, the, testator’s attorney, confidential adviser and time-tried friend. The testator’s esteem for and confidence in Mr. Burgess is shown in a letter written by the testator in 1893, from which the following extract is taken: “I am sorry indeed to learn the sad news in regard to the death of Mrs. Burgess. I have known her so long that I regarded her as one of my own family. In fact Mr. Burgess and his family seem as near to me as any relatives I have. Our acquaintance and friendship extends back over so many years and has always been of such a pleasant nature that I have come to look on them as more than mere friends. Mr. B. has transacted business for me for more than 16 years and has never made any charge nor would he accept anything for his services. Such men' let me tell you are hard to find. He has handled many Thousands of Dollars for my dear wife & myself & has always accounted for the last cent, where would I find another that would do likewise.” The same relations continued to exist between the two men until the testator’s death. The will was written on a typewriter by Mr. Burgess’s daughter, who was his clerk and typist. The testator had made a will in 1899, which he desired to change. During the preparation of the will in controversy Mr. Burgess held the old will and read it one paragraph at a time. - As each paragraph was read the testator either directed that it be written as it stood or made whatever changes he desired. The entire will was correctly written as he directed. None of its provisions was dictated or suggested to him by Mr. Burgess or by any one else named in the will. When any of the provisions needed to be expressed in legal form Mr. Burgess supplied the proper phraseology. There is'no evidence that Mr. Burgess assisted in preparing the will further than in the particulars which have been recited. The will disposed of real estate worth $4500 and personal property worth $10,-000,-besides a quantity of mining stock to which no value could be assigned by any witness. Twenty-one persons, including four of Mr. Burgess’s children, were given $100 each. Two hundred dollars were set aside for a monument and for the care of a cemetery lot. The thirteenth clause of the will reads as follows: “In consideration of the fact that H. L. Burgess, of Olathe, Kan., has attended to all my legal business and to all the legal business of my deceased wife for the last twenty-seven years and has never received any compensation for his services, during the lifetime of either myself or my wife, I hereby give, devise and bequeath unto the said H. L. Burgess, the sum of two thousand dollars; which sum is to be in full for all services rendered for my wife and for myself or to be rendered during my lifetime.” The residue of the estate having a proved .value, amounting to $10,200, was given to Ellen E. Hallett, the testator’s niece, with whom he made his home. She had no knowledge of the will until after it had been executed. The court found that she is the principal beneficiary in the will. The appellants say that Mr. Burgess was the principal beneficiary in the will under a proper interpretation of section 9787 of the General Statutes of 1909 (Laws 1907, ch. 430, § 1), which reads as follows. “And provided further, that in all actions to contest a will, if it shall appear that such will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall be affirmatively shown that the testator had read or knew the contents of such will, and had independent advice with reference thereto.” It requires no argument to demonstrate that Mrs. Hallett is the principal beneficiary of this will. “Principal” means main, chief, leading, highest in value, character or importance, most considerable or imporant, as any dictionary will show. She was given more than five-sevenths of the estate, so that every term of the definition used as the equivalent of “principal” applies to her or to the share which she receives. The plaintiff would have the statute read “the sole or one of the principal beneficiaries.” The legislature did not so frame it. It applies to the single case of a will written or prepared by a person in a confidential relation to the testator, who is given the whole or the most considerable part of the estate devised. In all other instances the validity of the will is to be determined by the ordinary rules relating to fraud and undue influence. In determining whether or not a person is the principal beneficiary in a will the relative importance of his share to the individual shares of other beneficiaries and to the whole estate should be considered. If two or more persons should receive the bulk of an estate in fairly equal proportions no one of them would be the principal beneficiary. If a single person should receive a share slightly larger than any other but which constituted only a small part of the entire estate, he could not be regarded as the principal beneficiary. Probably more specific directions than these can not be given; certainly nothing more definite is required by the facts of this case. Since the confidential adviser in this case was not the principal beneficiary of the will it is not necessary to decide what constitutes writing or preparing a will, what constitutes independent advice or when or by whom such advice should be given, within the meaning of the statute. The findings of fact and conclusions of law meet the approval of this court and the judgment of the district court is affirmed.
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The opinion of the court was delivered by Porter, J.: John W. Butts and wife brought this suit to quiet title to a farm of 104 acres near Valley Falls, in Jefferson- county. The principal defendant is Halleck D. Butts, a brother of plaintiff John W. Butts.. The farm originally belonged to their father, W. C. Butts, who died in April, 1908. John W. Butts and his wife had occupied a house on the farm from the time of their marriage, in 1896, until after his father’s death,, when he set up a claim to own the land by parol gift from his father, accompanied by actual possession and the making of lasting improvements. The court gave-judgment for the defendants, and the plaintiffs appeal.. On the trial the court submitted to a jury in an advisory capacity certain questions of fact, which they answered in favor of the plaintiffs and against the defendants. These the court set aside and made separate: findings of fact and conclusions of law. The court’s, findings are that the plaintiffs occupied' the house on the farm without payment of.rent from May, 1896, to-March 1, 19Ó8; that during that time W. C. Butts kept possession and -control of the farm land, rented the-same to other tenants and. collected the rents, paid all the taxes, and kept the buildings insured in his own name as owner; that other buildings on the farm were occupied by his tenants; that he never surrendered the-possession of the premises to the plaintiffs or made a. gift of the farm to them; that in October, 1907, he leased the farm to the plaintiffs for the following year, beginning March 1, for the sum of $225; that in 1896, when the plaintiffs moved to the farm, they made no-change in their condition or situation other than to leave the home of W. C. Butts at Valley Falls and go to housekeeping in the house on the farm; that plaintiff John W. Butts made some slight improvements on the-^premises, of little value, for his own use and enjoyment; and that the farm.belonged to W. C. Butts at the time of his death, at which time an undivided one-half' interest therein passed to John W. Butts and the other half to Halleck D. Butts. It is claimed that the court erred in permitting defendants to offer in evidence certain declarations made- and letters written by W. C. Butts, long after the date of the alleged gift, for the purpose of disproving the gift. It is insisted that these declarations are hearsay.. The contention can not be sustained, as it clearly appears- from the evidence that the declarations were made and the letters written when W. C. Butts was in the possession of the property, and his declarations were admissible. (Hubbard v. Cheney, 76 Kan. 222, 226.) In the case cited it was said: “The declarations of persons in possession of real property which illustrate the character of their possession and explain their claims. of ownership aré admissible to show the character and extent of their claims.” (p. 226.) (See, also, Stone v. Bird, 16 Kan. 488; Reiley v. Haynes, 38 Kan. 259; Hunnicutt v. Oren, ante, p. 460.) In volume 3 of Wigmore on Evidence it is said: “One in possession of property is presumed to be the owner of it. As making more definite and significant the nature of the person’s custody or occupation, and as giving it the significance of an exclusive control and of a possession in the fullest sense, the acts and declarations of claim of title by the person may be decisive, and should therefore be considered for that purpose; without, however, conceding to them any force as hearsay assertions.” (§ 1779.) The plaintiffs rely upon the cases of Osborne v. Osborne, 33 Kan. 257, and Crawford v. Crawford, 60 Kan. 126, but the opinion in each case expressly recognizes an exception to the rule there stated which applies where the declarations were made in connection with the possession of the land. It is improbable that any prejudicial error could have resulted from the admission of these declarations, as there was other competent evidence sufficient to warrant the findings of the court. Two other contentions are made, but as they are raised for the first time in this court they are not entitled to serious consideration. One of them is that the case in substance amounts to an action for the recovery of real property, and that the plaintiffs were denied their right to a trial by a jury. The petition set up a cause of action to quiet title, the plaintiffs claiming to own the land and to be in the actual possession thereof, so that, aside from the fact that they made no objection, to the manner in which the case was tried and voluntarily submitted the controversy to the court, and thereby waived any right they might have had to a jury trial, the case was one properly triable by the court. (Larkin v. Wilson, 28 Kan. 513; Roussain v. Patten, 46 Minn. 308; Angus v. Craven, 132 Cal. 691; McNeil v. Morgan, [Cal. 1910] 108 Pac. 69.) It is trhe that the courts recognize the doctrine that where the action should have been, and in substance is, an action for the recovery and possession of real estate the right of the defendant to a jury can not be defeated by the mere device of the plaintiffs in bringing the action in an equitable form. (See Gordon v. Munn, 83 Kan. 242.) But, as was held in Larkin v. Wilson, 28 Kan. 513, where the action is one to quiet title and the plaintiff is in possession, the case is an equitable one, in which neither'party has the right to demand a jury. The other contention, likewise raised here for the first time, is that it was the duty of the court after setting aside the findings of the jury to grant a new trial, under section 305 of the code. This section of the code has reference only to cases either triable by a jury as a matter of right, where a general verdict has been returned, or to cases where there has been a report by a referee or a decision of the court. In this case no general verdict was returned. All the jury did was to answer certain questions submitted to them by the court. A new trial could not be had until that trial ended by the decision of the court. The admissions of John W. Butts with respect to the farm, made in the written correspondence between himself and his brother after their father’s death, were sufficient of themselves to disprove his claim of ownership, and, taken with the other undisputed facts in the case, establish conclusively that there was no parol gift of the land and that it belonged to W. C. Butts at the time of his death. The judgment is affirmed.
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The opinion of the court was delivered by Johnston, C. J.: The principal and controlling question in this case is whether the live-stock commissioner has authority to appoint a deputy to act for him. James B. Moore, a farmer of Sherman county, who owned ninety head of cattle, was called on by Charles W. Wilson, who assumed to act as a deputy of John B. Baker, state live-stock commissioner, and with little if any inspection decided, on August 11, 1908, that the cattle were infected with mange and placed a quarantine upon them. He posted a quarantine notice on the premises which recited that an order had been made forbidding the removal of the cattle from the premises, or of permitting other cattle to enter upon the premises, and it was signed “J. B. Baker, Kansas State Live-stock Sanitary Commissioner, by C. W. Wilson, Deputy.” Moore insisted that his cattle were not infected with disease, but Wilson demanded that they should be dipped and caused the sheriff to start with the cattle to a dipping vat, but before they were dipped Moore obtained an order enjoining the dipping of the cattle until an inspection could be made by the commissioner to determine whether the cattle were infected, which order was to remain in force for thirty days. The cattle were returned to the premises where the quarantine was declared. Correspondence was had with the commissioner, who sent an inspector, named McIntosh, to examine the cattle who, it appears, found no disease, but he declined to reverse the action of Wilson or to discharge the quarantine. A hearing of a motion to continue the restraining order was had on September 16, 1908, and after evidence had been introduced McIntosh, who appeared and acted for the state and the officers, confessed judgment for costs and released the cattle from the quarantine. Moore then brought this action against the commissioner and Wilson to recover damages for willfully and wrongfully quarantining his cattle, alleging that there was no ground for the order of quarantine; that it was done to oppress and injure him; and that their action caused injury and loss which, with attorney’s fees, amounted to $1600. At the trial, which resulted in a verdict for defendants, the court instructed the jury to the effect that, although there was no statute authorizing the commissioner to appoint Wilson as his deputy, the character of the office and the duties pertaining to it were such as warranted him in appointing a deputy with power to do all things which the commissioner himself could do and that whatever "the deputy did in the performance of his duty, as such, became the act of the commissioner for which the latter was responsible. The contention is that the duties devolving on the commissioner involved the exercise of judgment and discretion and -that, in the absence of statutory authority, no deputy could be appointed to act in his stead. The statute does empower the commissioner to appoint a clerk, a stenographer, inspectors for stockyards, to employ laborers to assist him when necessary and to call on sheriffs and constables to execute ■ is orders, but it is conceded that there is no statute empowering him to appoint a deputy. The general rule is that official duties of a ministerial character may be delegated to another but those requiring the exercise of judgment and discretion can not, unless specific statutory authority to do so is given. Likewise, officers chosen because of their experience or special fitness and capacity are not permitted to delegate or entrust such duties to deputies or other persons. The same rule has been applied to arbitrators, executors, guardians and public trustees, in whom personal trust is confided, or who were chosen because of certain qualifications. (Mechem, Agency, §§ 188, 190.) At common law, officers could appoint deputies for the discharge of mere -ministerial duties but they had no authority to entrust to deputies the performance of duties of a judicial nature dr those involving judgment and discretion. In a general way it may be said that the presumption of the law is that an office is to be held and executed by the one chosen.for it and, especially where it is necessary that the officer shall possess particular qualifications. In section 567 of Mechem’s Public Offices and Officers it is said: “In those cases in which the proper execution of the office requires, on the part of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given to him, he can not delegate his duties to another.” In Prell v. McDonald, 7 Kan. 426, it was held that a marshal of a city of the second class could not appoint a deputy to act for him in the absence of a statute or an ordinance authorzing it. In State v. Hastings, 10 Wis. 525, it was held that certain duties imposed on the secretary of state could not be delegated to a deputy or an assistant. It was also held that a board of health could not delegate to others statutory power and discretion specially vested in the board. (Young v. The County of Blackhawk, 66 Iowa, 460.) In New York it has been held that a board of excise, whose duties involved confidence and a trust to be exercised for the public good, could not delegate its authority to another. (Board of Excise v. Sackrider, 35 N. Y. 154.) In Powell v. Tuttle, 3 N. Y. 396, it was held that if the duties are partly ministerial and partly of a judicial nature, the former may be committed to a deputy, but that the latter could not be delegated. In State ex rel. v. Reber, 226 Mo. 229, where the duties of an officer, in a tax transaction, included some which involved discretion and, following the performance of the duties involving the exercise of’ the discretionary power, others of a ministerial character were to be performed, the court held that the officer, having personally performed those 'involving discretion, might authorize other persons to perform the remaining ones. In the opinion it was said: as signing instruments] to evidence the result of his own exercise of the discretion.” (p. 237.) “An officer to whom a discretion is intrusted by law can not delegate to another the exercise of that discretion, but after he has himself exercised the discretion he may, under proper conditions, delegate to-another the performance of a ministerial act [such (See, also, Coffee v. Tucker, 26 Tenn. 49; Holley v. County of Orange, 106 Cal. 420; Robinson v. Chapline, 9 Iowa, 91; People ex rel. Board of Charities v. Davis, 22 N. Y. Supr. Ct. 209; Mechem, Agency, § 190; 1 A. & E. Encycl. of L. 975; 29 Cyc. 1395.) Under the statute ¡a commissioner is required to have special qualifications; that is, he can not be appointed unless he has been “extensively engaged in the breeding and handling of cattle for a period of not less than ten years immediately preceding his appointment to such office.” (Laws 1905, ch. 495, § 1, Gen. Stat. 1909, § 9132.) The law vests him with the authority to inquire and determine whether stock are affected with contagious or infectious diseases of a malignant character, and upon determining that stock are so affected, he may establish a quarantine and make such sanitary and police regulations as, in his judgment, are necessary to circumscribe and exterminate the disease. The duty of deciding whether stock are affected with any disease, whether it is malignant, contagious or infectious, whether it is such as makes it necessary for the stock to be dipped or otherwise treated, or whether it is necessary to kill and destroy them, involves discretion and judgment which should be exercised with caution and wisdom. He may not only take cattle from the custody of the owners and hold them at the owner’s expense, but he is vested with the discretion to determine that a necessity exists to destroy the animals, and to appraise their value in case they are killed. In Asbell v. Edwards, 63 Kan. 610, where the exercise of this power was considered, it was said that “the duty of determining, by investigation of the facts, whether a man’s property shall be seized and withheld from him is essentially judicial.” (p. 616.) The fact that ■certain qualifications must exist in a commissioner, that the establishing of a quarantine is expressly imposed on the commissioner himself, that no provision is made in the statute for the appointment of a deputy, ,.nd that the functions and duties of a commissioner involve discretion and judgment, make it clear that he has no authority to appoint a deputy. The argument that it is impracticable for a commissioner to give personal attention to every case can not control. Besides, the legislature seems to have provided for such a contingency by enacting that, on information that such diseases exist, the sheriff may make an examination and report the results to the commissioner and may prescribe a temporary quarantine until the commissioner can personally investigate and can make such orders and regulations as the case may require. The contention that the quarantine established by Wilson was immaterial, and that practically the only restraint ever imposed on appellant’s cattle was that exercised by the sheriff, can not be sustained. It was Wilson who declared and established the quarantine and he did it as a deputy of the commissioner. The commissioner undertook to commission him as a deputy and Wilson testified that he acted as a deputy, and, besides, the quarantine notice which he posted was signed “J. B. Baker, Kansas State Live-stock Sanitary Commissioner, by C. W- Wilson, Deputy.” It was on Wilson’s order that the sheriff took charge of the cattle, and while it is true that the sheriff had custody of the cattle for only a short time the temporary order which prevented him from dipping them did not release the stock from restraint. The communications between appellant and the commissioner, and those acting for him, recognized that the cattle were still under quarantine and remained so until the hearing was had on the injunction, when a formal declaration of release was made, that, however, being more than five weeks after the quarantine was established. It may be that the illegal quaran tine was not strictly enforced, and that little damage resulted from the restraint of the cattle, but that is something to be determined in a future trial when the jury are properly instructed that Wilson was not a deputy of the commissioner and had no authority, as such, to establish a quarantine or to restrain appellant’s stock. The judgment is reversed and the cause is remanded for a new trial.
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The opinion of the court was delivered by Johnston, C. J.: This was an action by the Kansas Crude Oil and Gas Company to recover $235.71 alleged to be due from The Kansas and Texas Oil, Gas and Pipeline Company, in which the plaintiff prevailed. The defendant appeals, and bases its claim of reversal upon an instruction given by the trial court. It appears that in 1907 appellee was supplying and selling gas to consumers, and appellant desired to purchase gas from appellee but its main line did not reach appellant’s plant, being about four thousand feet away, and as appellant was in a hurry to obtain gas it laid a pipe line two thousand feet long which connected with a branch line two thousand feet in length built by appellee, and through these pipes gas was delivered to appellant for a time at a flat rate. The manager of appellant testified that under this first agreement there may have been a stipulation requiring appellant to make the connection with appellee’s system. Later an agreement was made that gas should be furnished at a meter rate and a meter was installed at appellant’s end of its pipe line so that the gas which it took passed through its own pipes before it was measured. Some time after the meter was placed appellee connected an auxiliary line with that of appellant through which gas was transported to other consumers. Monthly settlements were made between the companies until about June, 1909, when a dispute arose as to the state of their account and an agreement was made to arbitrate the matter and to abide the decision of the arbitrators. The arbitration was had, and the decision was that appellant was indebted to appellee in the sum of $231.17. Payment was refused and appellee brought this action to recover the amount of the award, when the appellant set up a claim for the use of its pipe line. On the trial it appeared that nothing was said before or during the arbitration of any claim of rental for the pipe line and that, although there had been numerous settlements between the parties for gas purchased, no charge had been made or bill presented for the use of the pipe line. The manager testified that he had always intended to make a charge but that he did not present a bill because the transaction was continuous and had not ended. In its charge the court instructed the jury that: “Should you believe from the evidence in this case that at the time of the arbitration between the plaintiff and the defendant herein that the defendant did not intend to make any charge for the use of its pipe line, then and in that event you should allow it nothing by way of set-off in this case.” The correctness of this instruction is the only question presented for determination. Ordinarily when valuable services are rendered or the use of property furnished by one person to another, which are voluntarily accepted, and there is no express agreement as to compensation, the law implies a promise to pay a reasonable compensation for such services or use. On the other hand, if the services are performed or use furnished with the intention that no charge shall be made for them and if they are accepted in reliance upon such intention, the first party can not subsequently, upon changing his mind, recover for them. Where something is contributed by one and accepted by another as a gratuity or some service is rendered wholly as an act of friendship and mutual accommodation, no recovery can be had therefor as on an implied contract. This rule was applied in Collins v. Martin, 43 Kan. 182, where certain things were furnished by one neighbor to another with no intention to charge for them and afterward, when friendly relations were broken, an effort was made to obtain credit and compensation for them. The court held that articles furnished under those circumstances created no liability, and Stadel v. Stadel, 40 Kan. 646, Potter et al. v. Carpenter et al., 76 N. Y. 157, and Osier v. Hobbs, 33 Ark. 215, were cited as authorities. It is contended that the rule of Collins v. Martin, supra, does not apply here because that case was predicated- on the fact that there was no intention to charge for the things at the time they were furnished while here the court extended the rule and allowed the liability to be determined upon the intention of the parties at the time of the arbitration. That fact does not change the rule. The use of the pipe line had continued until that time and the contract between the parties in relation to supplying gas had not yet terminated. While there was a conflict of testimony as to the intention of appellant, the facts brought out in the case warranted the giving of the instruction. The admission that in the beginning there may have been a stipulation that appellant would build and make the connection, the provision in the written contract that gas was to be delivered to appellant near to appellee’s main line and that appellant’s plant was about three-fourths of a mile away, and that to transport gas this distance from the main line it was taken through two thousand feet of pipe line built by appellee and an equal length of pipe line built by appellant, the further fact that no bill was presented nor claim made for the pipes leading from the main line at any of the monthly settlements, and that when a dispute arose between the parties as to what was due from appellant to appellee the claim was not mentioned,' and also that it was not presented for the consideration of the arbitrators, and, added to these, the testimony in behalf of appellee that no charge was contemplated, all together furnished a sufficient basis for the instruction that the court gave. Other instructions, of which no complaint is made, stated the rule of implied liability based upon other circumstances. The judgment is affirmed.
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Per Curiam: In a petition for a rehearing a federal question is raised for the first time. It will not be considered or decided. The questions which were presented at the hearing and in the appellant’s brief were sufficiently discussed in the opinion heretofore filed. The petition for a rehearing is denied.
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The opinion of the court was delivered by Smith, J.: The trial was' to the court in this case and no special findings of fact were made, but there was a finding generally in favor of defendant Harry Hicks, and a judgment that he was the owner of the property in controversy. The undisputed evidence shows that on the 14th day of July, 1903, three days before he attained his majority, Harry Hicks purchased the property, which is described by metes and bounds as being 50 x 140 feet in dimensions, within or adjacent to the city of Wichita, Sedgwick county. Shortly afterward a deed was executed by the owner of the property and placed in a bank in Wichita, to be delivered on final, paymént. The deed was made to the mother of Harry Hicks, but he was earning $65 a month, and made the payments in full. Prior to the purchase of this tract Mrs. Hicks had bought a small dwelling house, to be removed, and borrowed $40 to pay for it. Harry furnished her the money to repay the loan, caused the tract he had purchased to be surveyed, and paid the expenses of moving the house thereon. Harry and his mother and sisters resided together as á family. His mother worked out, sewing as she could, and the daughters did some work. Mrs. Hicks died June 9, 1904, leaving the plaintiff and the defendants herein as her only heirs at law. Prior to her death the entire purchase price of the lots and of the house moved thereon was paid by Harry. After the death of the mother one daughter, Anna, who was married, brought this action against her. brother and two sisters for a partition of the property and for ejectment. Harry Hicks answered by a general denial, and alleged that he was the owner of the prop erty in fee simple, that he had purchased and paid for the property, but that the deed was taken in the name of Nannie G. Hicks, in trust for him, with the understanding and agreement that the property should be his; also, that he was in the possession of the property and the legal and equitable owner thereof, and asked to have his title quieted against the plaintiff and his co-defendants. His sister Emma was a minor, and answered by guardian, claiming an undivided one-fourth interest. His sister Grace did not answer, but it seems she had quitclaimed all right to the property to Harry. The court made no special findings of fact, but found generally in favor of Harry, and adjudged that he was the sole owner of the property. The plaintiff appeals. The mother being dead, and the adverse claimants having derived their title, if any they have, immediately from her, the son Harry was, of course, incompetent to testify in the action to any transaction or communication had personally with her affecting the title. Therefore what the agreement was, if any, between them, could only be shown by circumstantial evidence. During the mother’s lifetime some- of the witnesses said she had referred to the place as “our home”; that not-long before her death she stated to her father that the lots were Harry’s; and all the circumstances surrounding the transaction were such as to furnish some evidence that there was an agreement that she was to hold the property for him, and that there was no other person whose interest could be affected thereby, as his money alone had paid for the property. Under such circumstances the agreement may be proved by circumstantial evidence. (See Rayl v. Rayl, 58 Kan. 585; Lyon v. Berlau, 67 Kan. 426; Piper v. Piper, 78 Kan. 82, and cases there cited.) It is the general rule that neither fraud nor fraudulent intent is to be presumed, but, on the contrary, good faith is to be presumed until it is disputed or there is some showing of bad faith. In this case all the circumstances of the parties were disclosed to the court. All the circumstances tend to show that there were no creditors, that the plaintiff and her sisters were not wronged in any way, and there could be no fraudulent intent as to them by any agreement between the mother and her son that she was to hold the property for him. We think'from all the circumstances surrounding the transaction and the parties that the court was justified in finding that there was such an agreement, and that it was without any fraudulent intent. These facts being found, a trust resulted in favor of defendant Harry Hicks, under the third exception in section 9701 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 114, §8). The judgment is affirmed.
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The opinion of the court was delivered by Smith, J.: Concordia is a city of the second class, and the plaintiff is a resident thereof. She was trading on Washington street, in the town, with her daughter, and had some mishap by which her skirt was torn loose. She turned into an alley along a building fronting on the street. Along the side of the building a stairway had been erected in the alley. The stairway was boarded up for a distance and then left open and along the open space under the stairway, unprotected by any guard or railing, was a cellarway about four feet wide and eight feet deep. Desiring to be out of sight and away from the light to adjust her clothing, she claims she started to walk under the stairway and fell into the cellarway, receiving the injuries sued for. After she fell she screamed and when assistance came they found her unconscious. She was taken to her home and a physician was summoned. She claims that she had never recovered entirely at the time of the trial; that prior to the accident she was a healthy, strong woman, but has since been nervous and weak and her health ruined. In her petition she alleges that she did not know of the cellarway, and stepped off into it in the dark without any fault on her part; that the defendant city, through its officers, knew of the unsafe condition and was guilty of negligence in permitting it to remain; that by the fall she was “greatly bruised, injured and wounded on her head, neck, shoulders, knees and other parts of her body to such an extent that she was rendered unconscious, and thereby and ever since she has been weak, sick, nervous and continually suffered great pain of body and anguish of mind, and compelled to lay out and expend large sums of money, to wit, more than $25 for medicine and medical attendance, and that said injuries are not only painful now, but, as she believes, permanent”; that she will be compelled to expend large additional sums of money to be cured and relieved thereof, and prayed damages in the sum of $8000. On the trial she recovered a verdict and judgment for $1000. The first assignment of error by the defendant is the denying of its motion to have the petition made more definite and certain in that it should more definitely describe where on the head, neck, shoulders and knees the wounds are located, and definitely allege the nature of the wounds on, and pains in, other parts of the body. The petition might be more definite, but from the evidence it appears that there were no bones broken nor any serious external wounds, but only a bruising of the parts described and a general shock to the system from the fall which it would be difficult to describe specifically or to locate definitely the pains which might be caused by, but which generally would be expected from, such a fall. We think the defendant could not have been prejudiced by the want of more specific recitals. From the nature of the fall, which is not disputed by any evidence, it is not probable the plaintiff could allege every pain and suffering which the jar may have caused her. After the denying of the motion to make the petition more definite and certain, the city answered, admitting its incorporation as a city of the second class and denying generally every other allegation of fact, and also alleged contributory negligence on the part of the plaintiff. The reply was a general denial. The only other assignment of error argued in the defendant’s brief is the giving of instruction 5 and two instructions, each numbered 6, which two latter are treated by the defendant as one instruction. They read: “ (5) If you find from the evidence that there was a cellarway or opening on the'side of the building adjoining the alley and which opening was located in the alley, that said alley was a public alley opened and maintained by the city for the use of the public, that said cellarway had, at the time when the plaintiff claims to have fallen therein, no railing or other protection around it to keep travelers on the alley from falling in, and that the officials of the city whose duty it was to look after the streets and alleys knew of said condition, or that said condition had existed for a sufficient length of time so that by the use of reasonable care and diligence in the care of the said alley the officers of the city could have known such condition, that would constitute negligence on the part of the city for which it would be liable, and if the plaintiff while using said alley in the nighttime, and without any negligence on her part, fell therein and received injuries therefrom, the city is liable to the plaintiff for the amount she is damaged by reason of said injuries. “(6) However, if the plaintiff was guilty of negligence in the manner in which she used the alley in question and her negligence directly contributed to the in-, juries which she received by falling into said excava tion, the law would not permit her to recover even though the negligence on the part of the city is established. In other words, she can not recover if the injury would not have occurred if she herself had used ordinary care and prudence; and it is for the jury to determine whether her use of the alley was with that amount of care and prudence which, under the circumstances and surroundings would have been used by a person exercising ordinary care and diligence. The plaintiff can only recover where the city by its negligence caused her injury, and where she herself was free from negligence which directly contributed thereto. “ (6)- A person is not confined to the walks when using the streets and alleys of a city as a pedestrian, but has a right to assume that all parts of the streets and alleys open for travel are reasonably safe, and if she did not know of the dangerous condition of the alley in question she had a right to use any portion of said alley that suited her convenience without having negligence imputed to her for so doing. In other words, the simple fact of having used the alley at the point where the excavation existed would not amount to negligence in itself, unless she at the time failed to use due care and prudence.” ■ By the undisputed facts in this case this cellarway was only a few feet from the sidewalk on one of the principal streets of the eity and was wholly within the limits of the alley. When a city permits another to dig a pitfall in an alley, where people in passing are liable to fall into it, and leaves it entirely unguarded, if anyone, without fault on his part, falls into it and is injured thereby, the city is responsible in damages. (Smith v. City of Leavemoorth, 15 Kan. 81; Jansen v. City of Atchison, 16 Kan. 358; Fletcher v. City of Ellsworth, 53 Kan. 751; Kansas City v. Orr, 62 Kan. 61; 29 Cyc. 471.) The question of fact upon which the negligence of the city depended was submitted in the fifth instruction to the. jury, and in the sixth the question of the contributory negligence of the plaintiff. The jury were told that if the plaintiff was guilty of any negligence which contributed to the injury, she could not recover. The verdict of the jury finding in her favor amounts to a finding that the city was negligent and that she was not guilty of any contributory negligence. It is proper for the court in its instructions to the jury to recite the facts which, if found, amount to negligence in a given case, which it did in this case, and it must be inferred that the jury found the essential facts which were requisite under the instructions to justify a verdict for the plaintiff. Her evidence as to the situation, depth and location of the cellarway is undisputed, and in such case the question of negligence may become a question of law. (Railway Co. v. Clinkenbeard, 77 Kan. 481, 484; Johnson v. Railroad Co., 80 Kan. 456, 459.) We find no error in the instructions. The evidence amply supports the verdict; except, perhaps, as to the amount, as to which unprejudiced minds might differ. At any rate, the verdict and judgment are not so excessive as to force the conclusion that the result was attained through prejudice or passion. The judgment is affirmed.
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Bukaty, J.: Christine Bradley appeals the district court’s order granting summary judgment in favor of the Board of County Commissioners of Butler County (Butler County) and the City of Andover (Andover). On April 26, 1991, a tornado struck Andover. Bradley subsequently filed suit in Sedgwick County against Butler County and Andover seeking damages for serious injuries she suffered when that tornado struck her home. She claimed that Butler County and Andover officials were negligent in failing to adequately warn her of the approaching storm. Both Butler County and Andover filed motions challenging venue and requesting summary judgment. The trial court entered summaiy judgment for both defendants on grounds that the action arose out of emergency preparedness activities for which Butler County and Andover were immune pursuant to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. specifically K.S.A. 75-6104(j). The trial court also construed the motion to dismiss on grounds of improper venue as a motion to transfer and ordered the case transferred to Butler County. We affirm the trial court’s order granting the motions for summary judgment and first find as a matter of law that the emergency preparedness exception to the Kansas Tort Claims Act contained in K.S.A. 75-6104(j) protects both defendants from liability to plaintiff under the facts present in this case. That statute reads: “A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable in damages resulting from: (j) any claim based upon emergency preparedness activities, except that governmental entities shall be liable for claims to the extent provided in article 9 of chapter 48 of the Kansas Statutes Annotated.” “Summary judgment is proper where the only question or questions presented are questions of law.” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). It is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, show that there is no genuine issue as to any material- fact and the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may be reasonably drawn from the evidence in favor of the nonmovant. On appeal, this court applies the same rule, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Here, there are no material facts in dispute, and the summary judgment motion presents a pure question of law. Bradley first argues that this statute cannot cloak Butler County with immunity because Butler County did not have in place an approved emergency plan as required by the Kansas Emergency Preparedness Act, K.S.A. 48-904 et seq. (Ensley). She specifically refers to K.S.A. 48-929 (Ensley) which in relevant part reads: “(d) In accordance with the standards and requirements for disaster emergency plans promulgated by the division of emergency preparedness, each county, city and interjurisdictional disaster agency shall prepare and keep current a disaster emergency plan, for the area under its jurisdiction, which has been approved after examination and periodic review by the division of emergency preparedness.” At the time of the tomado, Butler County did not have an emergency preparedness plan that had been approved by the state division of emergency preparedness. In fact, it was the only Kansas county that did not. it had previously submitted one for approval, but the State sent it back for revision. Butler County argues that the lack of this plan is of no moment here and that the immunity contained in K.S.A. 75-6104(j) does not depend upon the existence of such a plan. We agree. Nowhere in all of the statutes of this state is there any mention that having an approved emergency plan on file is a prerequisite to immunity for emergency preparedness activities. Nor has Bradley cited us to any case law to support her position. K.S.A. 75-6104(j) does state that governmental entities are liable for emergency preparedness activities when such is provided for under article 9 of chapter 48 of the Kansas Statutes Annotated. There are provisions in that chapter providing for governmental liability to persons eligible for workers compensation or pensions, etc. See K.S.A. 48-915(a) (Ensley). Also, state employees, agents, and representatives may be liable to individual members of the public under K.S.A. 48-915(b) (Ensley) for willful misconduct, gross negligence, or bad faith in connection with emergency preparedness activities. But again, nowhere is there mention of liability for such activities if a governmental entity fails to have on file an approved emergency plan. If the legislature had intended to condition immunity on the existence of such a plan, it could have easily done so. It is not for this court to do so on its own. The question then becomes, do the undisputed facts here upon which plaintiff predicates her claim of failure to warn constitute “emergency preparedness activities” under K.S.A. 75-6104(j). We believe they do. The only statutory definition for the term “emergency preparedness” is found in K.S.A. 48-904 (Ensley). In relevant part, it reads: “(a) ‘Emergency preparedness’ means the preparation for and the carrying out of all emergency functions, other than functions for which military forces or other federal agencies are primarily responsible, to prevent, minimize and repair injury and damage resulting from disasters.” We believe the definition has relevance here. Although 75-6104(j) and 48-904 do not specifically refer to each other and are located in different chapters, they should be considered in pari materia. They relate to the same subject matter and class of things. Accordingly, we look to the definition in 48-904(a) to discern what the legislature meant by the term “emergency preparedness activities” in 75-6104(j). See Martindale v. Tenny, 250 Kan. 621, 829 P.2d 561 (1992). Clearly, it “means the preparation for and the carrying out of all emergency func lions ... to prevent, minimize and repair injuiy and damage resulting from disasters.” Defendants’ conduct upon which Bradley predicates her claim for damages falls within the confines of this definition. On April 26, 1991, the National Weather Service issued a tornado warning for Andover. The Andover police chief heard the warning while monitoring the situation. He then ordered the warning siren sounded. It did not function. Upon realizing this, the chief ordered police vehicles to drive through city streets sounding their sirens. One of the vehicles went to the vicinity of the Golden Spur Mobile Home Park where Bradley lived. The police vehicle actually passed within a distance of two mobile homes of Bradley’s location a total of four times with its siren on. A short time later, the tornado destroyed the park and Bradley incurred her severe injuries. All of these actions constitute emergency preparedness activities on the part of governmental employees. We know of no reason to distinguish between Butler County and Andover. We hold that both entities and their employees are exempt from liability for their actions or inactions in this case since Bradley’s claims arise out of emergency preparedness activities. We further find that article 9 of chapter 48 of the Kansas Statutes Annotated does not otherwise provide for liability for the actions or inactions that occurred here. Even if 75-6104(j) does not provide immunity to defendants, Bradley’s claims would also fail on grounds that she has not established the existence of any duty on the part of defendants to warn her of the approaching storm. In Griffin v. Rogers, 232 Kan. 168, 175, 653 P.2d 463 (1982), our Supreme Court affirmed the entry of summaiy judgment in favor of a county sheriff and others on claims brought against them for failure to warn of severe weather. The court stated in part: “Generally speaking, the sheriff’s duty to preserve the peace and protect the public welfare is owed to the public at large and not to particular individuals. This concept of immunity for nonfeasance of public officers was discussed at some length in Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 54, 536 P.2d 54 (1975), wherein the court stated: ‘Our own rule is that “executive officers are not liable for errors in the performance of duties involving discretion and judgment, in the absence of malice, oppression in office or wilful misconduct.” ’ “Plaintiffs do not allege any elements of malice, oppression in office or wilful misconduct on the part of the sheriff or his deputies. Nor is there any evidence of an express agreement on the part of the Sheriff to warn the operators of the Whippoorwill of severe weather. The dissemination of weather information by a government agency or officer is generally held to be a discretionary function. Annot., 99 A.L.R.2d 1016, 1046, § 21; National Mfg. Co. v. United States, 210 F.2d 263 (8th Cir. 1954). “It is only where an officer breaches a specific duty owed to an individual that liability arises. Hendrix v. City of Topeka, 231 Kan. 113, 643 P.2d 129 (1982).” 232 Kan. at 175. Here, Bradley has failed to establish the existence of any factors that might distinguish the facts in Griffin from those here. While one or both defendants may have had a statutory duty to have an approved disaster emergency plan, that duty is only to the public at large and not to Bradley individually. This statutory public duty falls short of imposing a duty upon either defendant to warn Bradley of approaching severe weather. In light of our ruling on the merits of Bradley’s claims, we see no reason to address her contention that the trial court erred in transferring venue to Butler County. Affirmed.
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Larson, J.: Northland National Bank (Northland) appeals the grant of summary judgment in favor of Unified School District No. 207 (U.S.D. 207) and Unified School District No. 453 (U.S.D. 453), holding certain lease-purchase agreements were not in compliance with the Kansas cash-basis law, were voided by that law, and could not be the basis for equitable relief. Factual Background U.S.D. 207 and U.S.D. 453 executed similar lease-purchase agreements for photocopying machines and sorters with Century Office Products, Inc. (C.O.P.I.). Immediately after execution, C.O.P.I. assigned its interests to Mid Continent Leasing, which assigned its interests to Northland. The July 1992 agreement with U.S.D. 207 was for a term of 61 months, requiring 24 payments of $2,300, 36 payments of $3,800 and a final payment of $14,500. The agreement contained a default provision enforceable “to the extent permitted by applicable law ... to declare the entire amount of unpaid total monies for the balance of this contract due and payable.” The school district executed additional documents including a “Municipal Certificate,” which stated in substance that U.S.D. 207 had complied with all procedures necessary to make the agreement legally binding and that all amounts due and payable for the current term were within the current budget. A second document entitled “Non Appropriation of Funds Addendum” relieved the school district of its obligations under the agreement under certain limited conditions but required additional covenants in that event. The U.S.D. 453 agreements were executed in June of 1992 and provided for 60 monthly payments of $4,400 and a final payment of $19,426. These agreements contained the same acceleration clause, municipal certificate, and nonappropriation of funds addendum as were executed by U.S.D. 207. In 1993, both school districts sued to cancel the lease-purchase agreements after they experienced difficulty in getting their machines serviced when C.O.P.I. suffered financial problems. The trial court granted the school districts’ motions for summary judgment, finding the lease-purchase agreements were void since they violated the Kansas cash-basis law by not specifically including the required provisions of K.S.A. 10-1116b and K.S.A. 10-1116e. The trial court further held Northland’s argument that it had superior rights as a holder in due course because the Kansas Uniform Commercial Code, K.S.A. 84-1-201 et seq., took precedence over the cash-basis law was without merit. Northland appeals, contending (1) the trial court erred in holding the lease-purchase agreements and supporting documentation violated the Kansas cash-basis law and are void, (2) the trial court erred in holding as a matter of law that Northland was not a holder in due course under the Kansas Uniform Commercial Code, and (3) that principles of equity require the enforcement of the lease-purchase agreement notwithstanding the cash-basis law. It is not disputed that the school districts lacked adequate funds to pay the full balance called for in the agreements during the fiscal year of their execution. Standard of Review It is a well-known rule of law that granting 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.” Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Because the issues in this case involve the construction of written instruments, a more applicable scope of review is that “the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993). Northland argues unconvincingly that an issue of fact exists concerning whether the lease-purchase contract was contained in one document or several. This contention has no merit as the trial court considered all of the documents and correctly found that no factual issues existed and the contract terms either directly violated or were not in conformity with the Kansas cash-basis law. Although the facts were not stipulated, none were controverted. No factual controversy exists which would preclude the grant of summary judgment. Legislative history of tire Kansas cash-basis law The Kansas Legislature, during the depth of the depression in 1933, enacted the cash-basis law. See L. 1933, ch. 319, K.S.A. 10-1101 et seq. Also adopted were the budget laws, see L. 1933, ch. 316, K.S.A. 79-2925 et seq., and the tax limitation, see L. 1933, ch. 309, K.S.A. 79-1945 through -1966. Justice Harvey, in an early proceeding questioning the validity of the cash-basis law, State, ex rel., v. Board of Education, 137 Kan. 451, 452, 21 P.2d 295 (1933), summarized its purpose: “Broadly speaking, it is designed to have such governmental units operate their respective functions on a cash basis — not to spend money they do not have or incur obligations they cannot meet promptly. Some of them, for one reason or another, had not been doing that, but had conducted their business somewhat on a credit basis. In some, proper books had not been kept, or sufficient publicity given, so that its citizens could know its financial status. It was thought waste, extravagance and an undue burden on taxpayers resulted from such methods of doing business, and the legislature deemed it prudent to change such practices and put all such governmental units on a cash basis.” A 1988 legislative interim committee report explained the genesis of the cash-basis law: “Prior to the Depression, many taxing subdivisions had accumulated sizable outstanding debts. At that time, many governing bodies did not know and probably could not readily ascertain their true financial condition. The 1933 cash basis and budget laws were enacted to remedy that situation.” Report on Legislative Interim Studies to the 1989 Legislature, p. 349. In State, ex rel, v. Republic County Comm’rs, 148 Kan. 376, 381-82, 82 P. 2d 84 (1938), the cash-basis law’s purpose was articulated as “the systematical, intelligent and economical administration of the financial affairs of municipalities and other taxing subdivisions of the state, so as to avoid waste and extravagance and yet permit such units of government to function so as to supply the governmental wants and needs of the people.” The law’s statutory scheme requires municipalities to contract all indebtedness in conformity with the act. K.S.A. 10-1102. The statutoiy definition of a municipality includes a school district. K.S.A. 10-1101(a). Except where the act provides a specific exception, it is illegal for a municipality to create any indebtedness “in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose.” K.S.A. 10-1112. A provision of the act critical to the trial court and our decision is that any contract “which violates the provisions of this act, shall be void.” K.S.A. 10-1119. Records are required to be kept of the contracts creating liability, and anyone contracting with a municipality is charged with notice of the records’ content. K.S.A. 10-1117. The statutes do provide exceptions to the all encompassing cash-basis rule. For example, school districts are permitted to issue cancelable purchase orders for certain equipment and supplies in anticipation of funds becoming available in an upcoming budget year. K.S.A. 10-1113. In addition, a municipality can exceed the limitation on indebtedness where authorized by a vote of municipality electors, among other exceptions. K.S.A. 10-1116. In 1980, the Kansas Legislature amended the cash-basis law by adding K.S.A. 10-1116b, which enumerated circumstances in which municipalities can enter into lease-purchase agreements. Such an agreement is permissible if it “specifically state[s] that the municipality is obligated only to pay periodic payments or monthly installments under the agreement as may lawfully be made from (a) funds budgeted and appropriated for that purpose during such municipality’s current budget year or (b) funds made available from any lawfully operated revenue producing source.” K.S.A. 10-1116b. The legislative history of K.S.A. 10-1116b indicates that the language quoted above in part (a) was an attempt to clarify for municipalities when they could enter into lease-purchase agreements without violating the cash-basis law by adopting the interpretation given by several Attorney General opinions. Minutes of the House Committee on Local Government, February 18, 1980 (amendment “prescribes language for counties to use in lease/purchase contracts in order to prevent violating the Kansas cash basis law”). The supplemental note to HB 2955, as amended by House Committee on Local Government, reports: “Several Attorney General’s opinions have said that any lease or purchase agreement that binds a municipality beyond its current budget year is a violation of the cash basis law but a long term agreement containing the above stipulation does not violate the law.” The purpose of requiring lease-purchase contracts to specifically state that the municipality’s obligation could not exceed the funds budgeted and appropriated in the current year was to inform municipalities how they could avoid running afoul of the cash-basis law and not to impose some new obligation that did not previously exist. In 1990, the Kansas Legislature added the following conditions applicable to the lease-purchase agreements permissible under the cash-basis law: “(a) If the proposed agreement is for a term exceeding the current fiscal year of the municipality, it shall be approved by a majority vote of all members of die governing body. “(c) If the proposed agreement is for a term exceeding the current fiscal year of the municipality, the agreement shall specify the following: (1) The amount or capital cost required to purchase the item if paid for in cash, (2) the annual average effective interest cost, and (3) the amount included in the payments for service, maintenance, insurance or other charges exclusive of the capital cost and interest cost.” K.S.A. 10-1116c. The legislative history of this provision is also significant. By the late 1980s there was concern that the lease-purchase agreements authorized by the 1980 amendment were not subject to sufficient controls. A 1988 legislative interim committee expressed concern that “there is a need for limitations or safeguards [on lease-purchase agreements] such as requiring public notice, a public hearing, or some type of debt limit.” Report on Kansas Legislative Interim Studies to the 1989 Legislature, p. 349. The 1990 legislation arose out of SB 727 and was “drafted to be restrictive and give the people a chance to have a hearing and request a vote” on certain lease-purchases of land and buildings. Minutes of House Committee on Local Government, March 19, 1990. The problem the legislature was dealing with was summed up by testimony before the House Local Government Committee by Barbara Butts, Department of Administration Training Supervisor for the Municipal Accounting Section: “Lease purchase agreements do not require voter approval as do most bond issues. Thus, some view lease-purchase agreements as loopholes because, while the long term obligations they create are similar to those of bond issues, the lease-purchase agreements can be used without voter approval.” When the legislature added the lease-purchase agreement provisions to the cash-basis law in 1980 and the additional conditions in 1990, it did not alter the recordkeeping aspects of the act so as to create a new mechanism for people contracting with the municipality to investigate whether the municipality had complied with the requirements for valid lease-purchase agreements. However, the common-law rule is that “[o]ne contracting with a municipal corporation is bound at his peril to know the authority of the municipal body with which he deals.” Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, Syl. ¶ 9, 834 P.2d 1344 (1992). The requirements related to lease-purchase agreements have not previously been interpreted by our appellate courts. Did the lease-purchase agreement, municipal certificate, and non-appropriations of funds addendum violate the requirements of the Kansas cash-basis law? Although other provisions might have been found to violate the cash-basis law, the trial court first found the agreements did not specifically state the school districts were only obligated to make payments from the funds budgeted and appropriated for the purpose during the current year as is required by K.S.A. 10-1116b(3). This statute recognized the validity of a lease-purchase agreement if the binding document between the parties contains the restrictions set forth in that statute. As we previously stated, school districts are clearly subject to the provisions of the act and therefore any transaction that “create [s] any indebtedness in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose” is within the scope of the act. K.S.A. 10-1112. A lease-purchase contract can be that type of transaction. See J.D. Adams Co. v. Dor Township, 153 Kan. 623, 113 P.2d 138 (1941). However, it is clear from the legislative history of the 1980 additions that not all lease-purchase agreements were to be prohibited by the cash-basis law. The agreements in issue in this case created indebtedness payable in the current year and in installments in future years. The Non Appropriation of Fund Addendum executed by both school districts provides: “Notwithstanding any provision in the Lease Purchase Agreement to the Contrary, C.O.P.I. and User agree that in the event the User is not appropriated sufficient funds for equipment which will perform services and functions for which the equipment was leased (if such appropriation is specifically required to pay the Rental payment herein); and funds are not otherwise available to User to pay the rental payments; and there is no other legal procedure by which payment can be made to C.O.P.I., and the non appropriation of funds did not result from any act or failure to act on the part of the User, User shall have the right to return the Equipment to C.O.P.I. (at User’s expense, to a destination C.O.P.I. directs, in good working condition (less normal wear and tear); and cancel this Lease Purchase Agreement by a notice to such effect served not less than thirty (30) days prior to the end of the User’s fiscal year. “Upon such early cancellation, User may not thereafter acquire functionally similar equipment for the full original term of the Lease Purchase Agreement. In the event, subsequent to early cancellation, funds are made available to User for equipment which will perform services and functions of the equipment, User agrees at C.O.P.I., option, to purchase, lease or otherwise acquire such equipment from C.O.P.I.” While the agreement provides the school districts with limited relief if the funds become unavailable, it nevertheless imposed rather stringent obligations on the school districts in future years. The provisions of C.O.P.I.’s agreements with the school districts are not consistent with the requirement of K.S.A. 10-1116b that a lease-purchase agreement, in order to be permissible under the statute, must create no binding obligation on the municipality in future years in order to avoid the type of indebtedness prohibited by K.S.A. 10-1112. The C.O.P.I. agreements obligate the school districts to pay amounts in future years which are not a part of their current budgets. Under the contracts, the school districts remain liable if there are any funds available to pay on the contract, even if those funds were not budgeted for the contracts. The default provisions specifically give C.O.P.I. the right to declare the entire amount of the unpaid monies due and payable. The agreements offend the wording of K.S.A. 10-1116b and violate the provisions of K.S.A. 10-1112, thereby voiding the agreements under K.S.A. 10-1119. Further, it is clear that giving a privilege of cancellation does not immunize an agreement from the cash-basis law. See Att’y Gen. Op. No. 77-279. The trial court correctly determined the contractual provisions violated the requirements of K.S.A. 10-1116b. In addition, the trial court also correctly ruled that the lease-purchase agreement violated K.S.A. 10-1116c because the documents failed to state: “(1) The amount or capital cost required to purchase the item if paid for by cash, (2) the annual average effective interest cost, and (3) the amount included in the payments for service, maintenance, and insurance or other charges exclusive of the capital cost and interest cost,” as is specifically required by K.S.A. 10-1116c. These provisions are public disclosure requirements which provide electors information with which they can hold municipalities accountable. These requirements were intended to apply mandatorily to all lease-purchase agreements running more than one year; therefore, this failure provides an independent ground for granting judgment irrespective of whether K.S.A. 10-1112 is applicable. Northland argues the trial court’s conclusion is erroneous because the statutory requirements are satisfied by the municipal certificates which were part of the lease transaction and which made the following representation: “[A]ll required procedures necessary to make the Lease Purchase Agreement a legal and binding obligation . . . have been followed. . . . Payments due and payable by the User under the Lease Purchase Agreement for the current contract term are within current budget and within an available unexhausted and encumbered appropriation of the [school budget].” Northland argues these representations, while not “word for word” with the statute, comply in substance. This contention is without merit. A lease-purchase agreement will be permitted only if it makes the specific disclosures which the statute requires. None of the documents affiliated with the transaction come close to filling the public notice requirement of K.S.A. 10-1116c. No wording of the cash-basis law can be construed to allow a general abstract statement to be substituted for the specific disclosure required by K.S.A. 10-1116c. The wording of the statute is clear, and the specific public disclosures must be made. The statute requires that the agreement shall specify certain information. That information is not included in any of the documents before the court. “Where a statute is clear and unambiguous, the court must give effect to the expressed legislative intent without regard to what the court thinks the law should or should not be. [Citation omitted.] Legislative intent must be derived from the language of the statute and where the language used is plain and unambiguous the court must follow the intent as expressed by the words used. [Citations omitted.] Where a statute is clear and unambiguous, it must be applied accordingly without judicial construction.” Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 682, 847 P.2d 1292 (1993). The common meaning of the mandatory directive is not inconsistent or out of harmony with other provisions of the cash-basis law. See Kilner, 252 Kan. at 686. Therefore, it is untenable to argue that the lease-purchase agreements under consideration here comply with the statute. The effect of the contracts’ failure to conform with the statute may be easily stated. They are expressly voided by K.S.A. 10-1119. The trial court’s decision that the contracts are void is clearly correct. Does the Uniform Commercial Code supersede the cash-basis law in this transaction? Northland argues the Uniform Commercial Code (UCC) controls over provisions of the cash-basis law it postdates. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 624 P.2d 971 (1981). Northland contends this is a contract for a sale of goods under K.S.A. 84-2-105 which was assigned under K.S.A. 84-9-102. Northland claims the status of a holder in due course under K.S.A. 84-3-302 and concludes that as a matter of public policy, the UCC should supersede the cash-basis law and allow Northland to rely on the municipalities’ representations that the contracts complied with all legal requirements. The trial court considered Northland’s argument and concluded that even if Northland were a holder in due course, it is subject to the defense that the transaction is illegal and nullified by other law. Northland’s argument suffers from a number of fatal flaws. Although Northland argues the UCC should control because it is the latest legislative enactment, the applicable parts of the UCC actually predate the enactment of K.S.A. 10-1116b and K.S.A. 10-1116c. Northland identifies no conflicting provisions which would force the court to choose one act over the other. Additionally, as the trial court concluded, a holder in due course is not immune to the defense that a contract is illegal and nullified by other law. K.S.A. 1993 Supp. 84-3-305(a)(l)(B). The trial court correctly held it makes no difference whether the UCC applies to this transaction, and if in fact it did, we would reach the same conclusion and grant the school districts the identical relief. Do the principles of equity require enforcement of the lease-purchase agreements notwithstanding the Kansas cash-basis law? Northland argues that even if the transaction is prohibited under the cash-basis law, the court should grant equitable relief since C.O.P.I., Mid Continent, and Northland all relied on representations of the school districts. Northland requests that the school districts be estopped from denying the validity of the lease-purchase contracts. In effect, Northland asks that equity be utilized to void the provisions of the Kansas cash-basis law. The Supreme Court of Kansas addressed substantially the same argument 77 years ago in Construction Co. v. Sedgwick County, 100 Kan. 394, 398-99, 164 Pac. 281 (1917): “It is also suggested that as the board was acting within the scope of its apparent authority, under color of an election presumably held according to law, for the regularity of which the commissioners themselves vouched, the plaintiff was justified in assuming that all the necessary steps had been duly taken, was not required to make a minute examination of the proceedings, and should be protected in its rights under the contract which it entered into in good faith in reliance on the action of the board. This reasoning, if sound, would in effect allow the board by indirection to exercise a power denied it by the statute — to accomplish a result which the law expressly forbids. The limitation on the power of the board is for the protection of the taxpayers, and acts done by the commissioners in excess of their legal powers can not work an estoppel against the public . . . .” Northland’s arguments ignore the fundamental reason for the cash-basis law. It is not the municipality which, ultimately, is protected by the law, but the taxpaying public as a whole. It is therefore inconsistent with the act to argue that the municipality by violating the terms of the cash-basis law deprives the public of the legal protection the law provides. To invoke equity in this case would disregard the rule that “[e]quity follows the law and cannot be invoked in matters plainly and fully governed by positive statutes.” Pownall v. Connell, 155 Kan. 128, Syl. ¶ 1, 122 P.2d 730 (1942). Equity will not interfere where the legislature has promulgated rules governing the rights of the parties. Rambo v. Bank, 88 Kan. 257, Syl. ¶ 2, 128 Pac. 182 (1912). “[Courts] are bound by positive provisions of a statute . . . and where the transaction, or the contract, is declared void because not in compliance with express statutory or constitutional provision, a court of equity can not interpose to give validity to such transaction or contract, or any part thereof.” Rambo, 88 Kan. at 259 (quoting Hedges v. Dixon County, 150 U.S. 182, 192, 37 L. Ed. 1044, 14 S. Ct. 71 [1893]). Additionally, “ ‘[t]hose rights, duties, and privileges conferred and imposed upon a municipal corporation exclusively for public benefit cannot ordinarily be lost through nonuse, laches, estoppel, or adverse possession, and statutes of limitation are not ordinarily applicable thereto.’ ” Devine v. City of Seward, 174 Kan. 734, 737, 258 P.2d 302 (1953) (quoting Douglas County v. City of Lawrence, 102 Kan. 656, Syl. ¶ 4, 171 Pac. 610 [1918]); see also Construction Co. v. Sedgwick County, 100 Kan. at 394 (estoppel not applied where public rights are involved). Northland attempts to utilize a statement from Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, Syl. ¶ 7, 834 P.2d 1344 (1992), as the basis for its argument that estoppel against the school districts is appropriate: "Within the scope of its power and authority to act, a municipal corporation is subject to rules of estoppel in those cases where justice and equity require their application and where such application will not interfere with the proper exercise of governmental functions.” The validity of this statement presupposes the municipality was within the scope of its power and authority to act. As the school districts correctly point out, this is not the factual or legal scenario in this case. Although it might at first appear that the school districts had the power to enter into lease-purchase agreements and simply failed to comply with the legislative conditions, such is not the case under the facts of this case. In discussing a waterworks statute 40 years ago, the Kansas Supreme Court said: “It is noted this statute is not a grant but a limitation of power to cities to extend water mains. It provides certain requirements be met before cities may exercise the power of extending water mains. An elementary rule of law is that municipal corporations are creations of law and may exercise only such powers as are conferred by the legislature and are bound by the limitations imposed upon them by that body.” Jayhawk Construction Co. v. City of Topeka, 176 Kan. 517, 520, 271 P.2d 769 (1954). The abstract statement from Blevins relied on by Northland is simply not applicable to our facts. More applicable, Blevins specifically held that where a municipality fails to execute a contract in compliance with mandatory conditions prescribed by statute, estoppel does not and cannot apply. Blevins, 251 Kan. 374, Syl. ¶ 8. The act of entering into the lease-purchase agreements without complying with the cash-basis act was illegal. The resulting agreements are void. The trial court correctly held that the school districts could not be estopped from claiming and taking advantage of the legal effect of the contracts being determined to be void. Affirmed.
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Wahl, J.: Jerry King filed this action against Ralph Pimentel, Howard Uhl, Bobby Dale Collier, and the City of Topeka (City), alleging, inter alia, abuse of process, malicious prosecution, and a claim under 42 U.S.C. § 1983 (1988). King appeals from the trial court’s order granting summary judgment in favor of the defendants on all claims. The facts are relatively simple. Jerry King is a licensed mechanical contractor in the City. On March 21, 1988, King contracted with Drycleaning Equipment Company of Irving, Texas, (DECO) to supervise the installation of mechanical systems, including a commercial boiler, at the Hygienic Cleaners construction project in Topeka. Ralph Pimentel worked for the City as a mechanical inspector in March 1988 in the building inspection department, and How ard Uhl and Bobby Dale Collier were Pimentel’s supervisors. On March 8, 1988, Pimentel issued a stop work order at the Hygienic construction site because DECO was not licensed to perform mechanical construction in Topeka. In response, DECO hired King to oversee the construction as a licensed mechanical contractor. King alleges he talked with Pimentel about the Hygienic project before he began work there and Pimentel assured him there were no mechanical problems at the site. After he began working on the Hygienic project, King discovered a boiler flue DECO had installed prior to March 21, 1988, was not in compliance with the mechanical code. Pimentel later stated that he knew a problem existed with the boiler flue prior to March 21, 1988. King claims he attempted to correct the problem, but when DECO would not cooperate, he turned to the City for help. King contacted Pimentel and several other City building inspectors to request the City to use its enforcement power against DECO to force DECO to comply with the City’s mechanical code. On April 6, 1988, Pimentel issued a violation notice to DECO. The notice cited DECO for the improper boiler flue. The mechanical code required metal chimneys like the boiler flue to be made of 10-gauge or thicker steel. The boiler flue at the Hygienic site was only 20-gauge steel. Lewis Golden, owner of the Hygienic project, contacted the mayor of Topeka concerning the problems he was having with the building inspection department. The mayor, or an assistant, contacted employees in the building inspection department to inquire about the mechanical problems at the Hygienic site. DECO did not correct the problem, and King continued to seek help from the City. On May 16, 1988, Pimentel issued another violation notice, this time citing King for the boiler flue problem. This second notice also indicated an official complaint had been filed in municipal court. It is totally unclear what resulted from the violation notice issued to DECO. It appears to have simply been ignored. On June 9, 1988, a criminal complaint was filed in municipal court charging King with a violation of the City’s mechanical code. On October 28, 1988, King was convicted after a bench trial. On January 30, 1989, the municipal court imposed a fine on King as a penalty for the conviction, which was later reduced. King appealed his conviction and sentence to the district court. On June 1, 1989, an order dismissing the charge against King was filed in district court. The record is unclear why the charge was dismissed. King filed a written notice of his claim against the City on May 7, 1990, pursuant to K.S.A. 12-105b(d). The City did not respond within 120 days. On September 28, 1990, King commenced this action in the district court. In that petition and in his three amended petitions, King sought recovery of damages for abuse of process, malicious prosecution, tortious interference with prospective business relations, intentional infliction of emotional distress, and loss of consortium. In addition, King made due process and equal protection claims under 42 U.S.C. § 1983. Each of the claims for relief arose out of events related to King’s work at the Hygienic site and his prosecution for violating the mechanical code. On January 7, 1993, the trial court granted summary judgment in favor of all the defendants on King’s claims for abuse of process, malicious prosecution, tortious interference with prospective business relations, and intentional infliction of emotional distress. King subsequently agreed to forgo the claim for loss of consortium. On April 4, 1994, the trial court granted summary judgment in favor of all the defendants on King’s equal protection and due process claims. The rules concerning summaiy judgment have been stated many times by the Kansas appellate courts. These rules are succinctly stated in Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994): “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. Summaiy judgment is appropriate when the pleadings, . . . with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” The trial court granted summary judgment to defendants on King’s claims for abuse of process and malicious prosecution after finding those claims barred by the applicable statutes of limitations. King claims that the defendants did not properly plead an affirmative defense based upon the statute of limitations and, therefore, should not be entitled to summary judgment based upon that defense. A defense based upon a statute of limitations is an affirmative defense, and the burden of pleading and proving its applicability rests on the defendant. Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). K.S.A. 1993 Supp. 60-208(c) requires a defendant to affirmatively plead a defense based upon the statute of limitations in the answer. The defendants’ first summary judgment motion was based primarily on a statute of limitations defense. However, when the motion was filed, none of the defendants’ pleadings included a statute of limitations defense. The defendants did include a statute of limitations defense in their answers to King’s third amended complaint, which was filed after their motion for summary judgment was filed but before the motion was heard and decided by the trial court. King filed a motion to strike the statute of limitations defense from the defendants’ answers to his third amended complaint. The trial court denied that motion. King amended his petition a third time to add Collier as a defendant. He contends it was unfair to allow the defendants to add a statute of limitations defense in response to an amendment which simply added a party and did not alter the substantive issues in the case. He claims it was particularly unfair in this case because the defendants initially opposed his motion to amend the complaint to add Collier as a defendant. King argues, pursuant to K.S.A. 60-215(a) that the defendants should have filed a motion to amend their answers if they wanted to plead a statute of limitations defense and, by allowing them to include the defense in their answer to his third amended petition, the trial court sanctioned the defendants’ attempt to circumvent the requirements of K.S.A. 60-215(a). K.S.A. 60-215(a) provides: “A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within twenty (20) days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.” The defendants argue that they were required by K.S.A. 60-215(a) to file a responsive pleading to King’s third amended petition and, therefore, did not have to file a motion to amend to include an affirmative defense which they failed to include in earlier pleadings. Collier’s answer to King’s third amended petition was Collier’s first pleading in the case. He had a right to raise any appropriate affirmative defense in his answer, including the statute of limitations. With regard to the other defendants, the question is whether a party responding to an amended pleading as required by K.S.A. 60-215(a) may include additional claims or defenses the party failed to include in an earlier pleading if those additional claims or defenses do not relate to the specific amendment being responded to. Rule 15 of the Federal Rules of Civil Procedure is nearly identical to K.S.A. 60-215, and the Kansas Supreme Court has found decisions construing the federal Rule persuasive in construing K.S.A. 60-215. Marr v. Geiger Ready-Mix Co., 209 Kan. 40, Syl. ¶ 2, 495 P.2d 1399 (1972). The United States Court of Appeals, Seventh Circuit, has considered a similar question. In Marcus v. National Life Insurance Company, 422 F.2d 626 (7th Cir. 1970), the appeals court considered whether the district court acted properly by permitting a defendant to interpose a statute of limitations defense in response to an amended petition which merely increased the amount claimed as damages. The plaintiff filed a motion to amend his petition after a jury had been empaneled but before the trial began. The district court granted the motion; in response, the defendant asserted, for the first time, a statute of limitations defense in its answer. The plaintiff’s motion to strike the defense was denied, and the district court ultimately granted the defendant’s motion for a directed verdict. 422 F.2d at 627. In Marcus, the plaintiff argued it was prejudicial to permit the statute of limitations defense to stand because he had already expended large sums in discovery and preparation for trial. The Court of Appeals determined the decision to permit or strike the statute of limitations defense was a matter of district court discretion and, under the particular facts of the case, upheld the district court’s decision denying the motion to strike. 422 F.2d at 630-31. Under Kansas law, the defendants were required to file a responsive pleading to King’s third amended petition. K.S.A. 60-215(a). The appropriate pleading to respond to a petition is an answer. K.S.A. 60-207(a). K.S.A. 1993 Supp. 60-208(c) provides in part: “In pleading to a preceding pleading a party shall set forth affirmatively . . . statute of limitations.” Technically, the defendants complied with the applicable rules of civil procedure by including the affirmative defense based upon the statute of limitations in their answers to King’s third amended petition. Because the effect of including new affirmative defenses in this situation is akin to amending a previous pleading, a trial court has discretion to permit or deny the new claims or defenses upon a motion to strike. Ruling on a motion to strike a defense from a pleading pursuant to K.S.A. 1993 Supp. 60-212(f) rests in the sound discretion of the trial court. Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 947, 811 P.2d 1237 (1991). In determining whether to permit or strike the new defense or claim in these situations, a trial court takes into consideration the same factors that it would consider when ruling on a motion to amend pursuant to K.S.A. 60-215(a). This was the rationale used by the court in Marcus. K.S.A. 60-215(a) provides leave to amend a pleading “shall be freely given when justice so requires.” A trial court is given broad discretionaiy power to permit amendment of pleadings, and its actions will not constitute reversible error unless it affirmatively appears 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, 109, 734 P.2d 1113 (1987). In this case, it does not affirmatively appear denial of King’s motion to strike the defendants’ statute of limitations defense is so material as to affect King’s substantial rights. Collier had every right to plead a statute of limitations defense in his first answer to King’s third amended petition which added Collier as a party. King had to address the statute of limitations defense even if the remaining defendants had not asserted it. Hence, permitting the remaining defendants to assert a statute of limitations defense did not impose a burden on King in terms of his preparation. While more than a year elapsed between the date the defendants filed their original answer and the date they finally asserted a statute of limitations defense in their third answer, that fact alone would not require the trial court to grant King’s motion to strike. Reasonable people could agree with the trial court’s decision denying Kang’s motion to strike the statute of limitations defense. No abuse of discretion has been shown. The trial court did not err in denying the motion. The trial court granted the defendants’ motion for summary judgment on King’s claims for abuse of process and malicious prosecution, ruling those claims were barred by the applicable statutes of limitation. Summary judgment may be appropriate on the affirmative defense of the statute of limitations where there is no dispute or genuine issue as to the time when the limitations period commenced to run. Olson v. State Highway Commission, 235 Kan. 20, 28, 679 P.2d 167 (1984). The trial court determined King’s cause of action for abuse of process accrued on June 9, 1988, the date the criminal complaint was filed against King in municipal court. A two-year limitations period applies to claims for abuse of process. K.S.A. 1993 Supp. 60-513(a)(4). Therefore, unless the limitations period was extended or tolled in some manner, the limitations period would have expired on this claim on June 11, 1990 (June 9, 1990, was a Saturday). The defendants dispute that June 9, 1988, is the date on which King’s cause of action for abuse of process accrued. They argue King’s cause of action for abuse of process accrued on May 16, 1988, when Pimentel issued King a violation notice citing him for the improper boiler flue. The problem with the defendants’ argument is they did not appeal from the trial court’s ruling in this regard or file a cross-appeal. Consequently, this court need not address the defendants’ argument. We do note, however, to the extent King claims he was injured by the institution of criminal proceedings against him, his cause of action for abuse of process would have accrued, at the earliest, on the date when the charges were filed, June 9, 1988. The trial court determined, and both parties agree, that King’s cause of action for malicious prosecution accrued on June 1,1989, the date the criminal charge against him was dismissed in district court. See Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, 701 P.2d 977, rev. denied 238 Kan. 877 (1985). A one-year limitations period applies to claims for malicious prosecution. K.S.A. 1993 Supp. 60-514(b). Unless tolled or extended in some manner, the limitations period expired on this claim on June 1, 1990. King filed his original complaint on September 28, 1990, after the limitations periods for the abuse of process and malicious prosecution claims had run. He claims, however, that the limitations periods were extended by operation of K.S.A. 12-105b(d), which provides in relevant part: “Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. . . . Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part.” The trial court ruled that K.S.A. 12-105b(d) only applied to claims against municipalities and did not extend the applicable limitations periods on King’s claims against the individual defendants. The court also analyzed King’s claims against the City and determined, notwithstanding the provision for extension of the statute of limitations periods, the limitations periods on the abuse of process and malicious prosecution claims expired before King filed his petition in district court. The trial court ruled a party is not required to provide a municipality with written notice of a claim pursuant to K.S.A. 12-105b(d) for claims against municipal employees under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.; therefore, the provision for extension of the applicable statute of limitations for compliance with the notice requirement of K.S.A. 12-105b(d) did not operate to extend the applicable limitations periods on Kang’s claims against Pimentel, Uhl, and Collier. The trial court relied on Bradford v. Mahan, 219 Kan. 450, 548 P.2d 1223 (1976), in support of its ruling. Bradford sued Mahan, an Olathe police officer, for libel and slander. Mahan argued that Bradford failed to state a cause of action in his petition because he failed to allege the statutory notice required by K.S.A. 12-105 (Weeks) (repealed L. 1979, ch. 186, § 33). That statute provided in relevant part: “No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within six (6) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received, the circumstances relating thereto and a demand for settlement and payment of damages . . . .” When Bradford was decided, a municipality was not liable for the negligence or the misconduct of its police officers even when the police officers were engaged in the performance of governmental functions. 219 Kan. at 453. Consequently, the court held the notice requirements of K.S.A. 12-105 applied only to actions against a municipality and were not a condition precedent to bringing an action against a police officer engaged in the performance of a governmental function. 219 Kan. at 453. The trial court noted that K.S.A. 12-105 had been repealed since the Supreme Court issued the Bradford decision. It relied, however, on this court’s pronouncement in Tucking v. Board of Jefferson County Comm’rs, 14 Kan. App. 2d 442, 796 P.2d 1055, rev. denied 246 Kan. 770 (1990), that prior statutes and accompanying cases should be considered in interpreting K.S.A. 12-105b(d). In so stating, this court referred to the rule that when determining legislative intent, courts are not limited to consid eration of the language used in a statute but may look to the historical background of the enactment. 14 Kan. App. 2d at 445. Applying this principle, this court determined that like in K.S.A. 12-105, the notice of claim requirement found in K.S.A. 12-105b(d) was mandatory and no action under the KTCA could be maintained unless a party alleged substantial compliance with the notice requirement in the pleadings. 14 Kan. App. 2d at 445. The trial court believed Tucking legitimized its application of the rule from Bradford to conclude that the notice requirement of K.S.A. 12-105b(d) was not a prerequisite to filing an action under the KTCA against municipal employees, such requirement being a prerequisite for actions against a municipality only. The trial court then concluded K.S.A. 12-105b(d) did not operate to extend the applicable limitations periods on King’s claims against Pimentel, Uhl, and Collier. This issue presents a question of statutory interpretation, which is a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). We must concede a strict interpretation of K.S.A. 12-105b(d) supports the trial court’s conclusion the notice of claim requirement applies only to claims against a municipality and not municipal employees. The statute is silent with regard to claims which could give rise to an action against municipal employees under the KTCA. However, the statutory language also permits a broader interpretation. We find K.S.A. 12-105b(d) applies to both claims against a municipality and to claims against municipal employees acting within the scope of their employment. The law with regard to municipal liability has changed significantly since the Bradford decision. Now, under the KTCA, a governmental entity’s liability for the negligent or wrongful acts or omissions of its employees, while acting within the scope of their employment, is the rule rather than the exception. K.S.A. 75-6103. Additionally, a governmental entity is obligated, with certain exceptions, to provide a defense for employees defending actions under the KTCA and is liable and must indemnify its employees against damages for injury or damage caused by the employees while acting within the scope of their employment. K.S.A. 75-6108, K.S.A. 75-6109, and K.S.A. 75-6116. The notice of claim requirement in K.S.A. 12-105b(d) affords a municipality an opportunity to review and investigate tort claims against it and to approve or deny such claims before having to litigate an action under the KTCA. Because a municipality faces significant liability, both in actions brought against it and actions brought against its employees under the KTCA, we conclude the legislature intended written notice of a claim under K.S.A. 12-105b(d) would be a prerequisite for bringing an action under the KTCA against municipal employees who cause injury or damages to another while acting within the scope of their employment. Such an interpretation of K.S.A. 12-105b(d) eliminates the necessity of bringing two separate KTCA actions, one against the municipality and one against individual municipal employees when, as here, the statute of limitations period expires before the municipality has responded to the notice of claim. The trial court ruled King’s claims for abuse of process and malicious prosecution against the City were barred by the applicable statutes of limitations without considering K.S.A. 12-105b (d). King claims the trial court improperly computed the number of days by which the limitations periods were extended by operation of K.S.A. 12-105b(d) and argues he filed his petition within the extended limitations periods. A summary of relevant events is helpful for an analysis of this issue: 3-8-88 Pimentel issued a stop work order at the Topeka site because DECO was not license to do mechanical construction in Topeka 3-21-88 King was hired as a licensed mechanical contractor 4- 6-88 Pimentel issued violation notice to DECO about the flue 5-16-88 Pimentel issued another violation notice only to King and also stated an official complaint had been filed in municipal court 6- 9-88 criminal complaint filed in municipal court charging King with violation of the mechanical code 10-28-88 King convicted after a bench trial in municipal court 1-30-89 King fined/King appealed 6- 1-89 district court dismissed the charge against King 5- 7-90 Sling filed his notice of claim with the City under K.S.A. 12-105b(d) 6- 1-90 statute of hmitations period would expire on malicious prosecution claim 6-11-90 statute of limitations period would expire on abuse of process claim 9- 4-90 120 days from King’s notice of claim to the City 9-28-90 petition filed 9-30-90 120 days from end of limitations period for malicious prosecution 10- 9-90 120 days from end of hmitations period for abuse of process The applicable statutes of limitations expired after King had filed his notice of claim with the City but before the City responded. In this case, the City never responded, and the claim is deemed denied on September 4,1990,120 days after the notice of claim was served on the City. K.S.A. 12-105b(d). K.S.A. 12-105b (d) provides in relevant part: “Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, if compliance with the provisions of this subsection would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of this subsection.” The trial court interpreted this provision to mean that the limitations periods were extended until September 4, 1990, the date on which King learned the City had denied his claim. This court rejected such an interpretation of K.S.A. 12-105b(d) in Martin v. Bd. of Johnson County Comm’rs, 18 Kan. App. 2d 149, 157, 848 P.2d 1000 (1993): “If the rejection period of a notice of claim filed pursuant to 12-105b(d) extends beyond the end of the statute of limitations period, the statute of limitations is extended by the amount of time that elapses between the filing of the notice of claim with the municipality and its rejection. The length of the extension of the statute of hmitations will vary from case to case, but the longest possible extension of the statute of hmitations would be 120 days.” Because the City never responded to the notice of claim, it was deemed denied on September 4, 1990, 120 days after the notice of claim was served upon the City. The applicable limitations periods were extended by 120 days under the rule in Martin. King’s petition was filed within the extended hmitations periods on his abuse of process and malicious prosecution claims, and the trial court erred in holding the statutes of hmitations had expired. King claims that the defendants’ actions deprived him of rights secured under the United States Constitution and argues his allegations are sufficient to sustain a claim under 42 U.S.C. § 1983 (1988), which reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” King claims the defendants’ actions violated his right to procedural and substantive due process under the Fourteenth Amendment to the United States Constitution. He alleges he did not install the boiler flue which resulted in the mechanical code violation and the defendants were aware he was not responsible for the mechanical code violation; therefore, no probable cause existed to file criminal charges against him. He also claims the City’s governing body did not intend a violation of the mechanical code to be punishable as a crime; hence, the initiation of criminal proceedings against him was wrongful. The trial court ruled that there was probable cause to initiate criminal proceedings against King and, under the Topeka Code, a mechanical code violation was a crime. Section l-5(b) of the Topeka Code states: “Whenever any offense is declared by any provision of this Code, absent a specific or unique punishment prescribed, the offender shall be punished in accord with this section.” Such offenses are deemed misdemeanors. Topeka Code § l-5(d). The criminal complaint charged King with violating § 914A of the Uniform Mechanical Code, 1982 edition, which is incorporated by reference into the Topeka Code at § 10-417. Topeka Code § 10-417 does not prescribe a unique or specific punishment for a violation of the Uniform Mechanical Code. The trial court correctly determined a criminal prosecution could be founded on a violation of the mechanical code. King alleges the Topeka Code does provide a unique and specific punishment for a violation of the mechanical code at § 10-34. That ordinance provides the applicable trade board, in this case the mechanical trade board, shall have the power to suspend or revoke a trade license for failure to correct a written violation notice or for subsequent violations. That the City has provided procedures for issuing, suspending, and revoking trade licenses does not indicate that it has provided a specific and unique punishment for violation of the mechanical code. Unlicensed individuals who receive building permits pursuant to § 10-40.3 would also be responsible for compliance with § 10-417 and the Uniform Mechanical Code. The question remains whether King’s allegations that the criminal prosecution against him was initiated without probable cause states a claim for relief under § 1983 for violation of his constitutional right to due process. King claims he has a liberty interest against wrongful prosecution and that the defendants’ actions deprived him of this liberty interest. The complaint filed June 9, 1988, charges King with violating the mechanical code by improperly installing a chimney on May 16, 1988. It is undisputed King did not install the boiler flue in question and he was not the licensed mechanical contractor at the Hygienic site at the time the boiler flue was installed. The Kansas Supreme Court has recently considered whether a § 1983 claim may be based on malicious prosecution. Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964 (1994). The court recognized a split of opinion on the matter, even within a recent United States Supreme Court case, Albright v. Oliver, 510 U.S. _, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994). The Kansas court followed its prior decision in Alvarado v. City of Dodge City, 238 Kan. 48, 708 P.2d 174 (1985). Quoting Alvarado, the court recognized that “where a deprivation of life, liberty, or property is ‘caused by a random and unauthorized state act for which prior process is impracticable or impossible,’ a post-deprivation remedy is the avenue for redress and a § 1983 claim does not he.” 255 Kan. at 628. If King’s prosecution for violation of the mechanical code was wrongful, it was the result of a random act for which prior process was impracticable. Hence, the post-deprivation remedy of a state tort claim for malicious prosecution is the appropriate avenue for redress, and the trial court was correct in denying King’s § 1983 claim. King also claims he was denied equal protection of the law by the unequal application of the mechanical code by the defendants. In support, he cites several examples of the defendants’ failure to enforce applicable building codes on other construction projects despite knowledge that violations existed. That a state or governmental entity applies a law to one person and not to another does not, in itself, constitute a denial of equal protection. It must also be shown there was an element of intentional or purposeful discrimination. A discriminatory purpose is not presumed. There must be some evidence showing clear and purposeful discrimination. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 387, 673 P.2d 1126 (1983). The failure to prosecute other violators does not establish a selective enforcement claim. There must also be a showing the prosecution was deliberately based upon an arbitrary, illegal, or otherwise unjustifiable standard. 234 Kan. at 387. One court has determined that liability under § 1983 for selective enforcement should depend upon proof that “(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980). See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1352 (2d Cir. 1994). The trial court ruled King had failed to come forward with evidence to establish a disputed material fact that the prosecution was deliberately based upon an arbitrary, illegal, or otherwise unjustifiable standard. King points to evidence which he contends establishes his prosecution was based upon an improper standard. The owner of the Hygienic project contacted the mayor’s office to discuss the Hygienic project. The mayor in turn contacted the building inspection department to inquire specifically about the mechanical systems at the site. The building inspection department normally allowed a code violator an opportunity to correct a code violation before referring the matter to the city attorney’s office for prosecution, and the defendants departed from this procedure in King’s case. Even when this evidence is viewed in a light most favorable to King, it fails to establish a disputed material fact that his prosecution for a code violation was based upon an arbitrary or malicious standard. It is undisputed that others have been prosecuted for building code violations. Based upon the evidence of record, a jury would have to resort to unreasonable speculation to infer the defendants acted arbitrarily or maliciously by issuing a violation notice and instituting criminal proceedings against King for the code violation. That King was prosecuted for a code violation which he claims to have brought to the attention of the building inspection department does not establish his prosecution was based upon an arbitrary or malicious standard. Although there is evidence others have not been issued violation notices or prosecuted for known code violations, because King failed to come forward with evidence to establish a genuine disputed material fact that his prosecution was based upon an arbitrary, illegal, or otherwise unjustifiable standard, the trial court correctly granted the defendants’ motion for summary judgment on his § 1983 equal protection claim. Affirmed in part, reversed in part, and remanded for further proceedings on King’s state tort claims for malicious prosecution and abuse of process against all defendants.
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Rulon, J.: Anthony G. Howard, defendant, appeals from the sentence the district court imposed following his guilty plea to burglary of a nonresidence, in violation of K.S.A. 1993 Supp. 21-3715(b), and theft, in violation of K.S.A. 1993 Supp. 21-3701(a). We affirm. At sentencing, the State agreed to recommend Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq., sentences of 20 months for both convictions, with the sentences to run concurrent with the sentence imposed on a separate unrelated charge. The parties agreed that defendant had a criminal history category of E. Defense counsel argued that the sentences for both the burglary and theft convictions were controlled by the KSGA, which called for presumptive probation. Defendant admitted he was un der the supervision of community corrections at the time of these offenses. The court sentenced defendant to 21 months incarceration with 24 months of post-release supervision. Defendant only appeals from the sentenced imposed on the burglary and theft convictions. Defendant argues the presumptive sentence under the KSGA in this case was probation and the court’s imposition of a prison sentence was, therefore, a dispositional departure. According to defendant, because the sentencing court failed to state on the record substantial and compelling reasons for the departure, the court erred under K.S.A. 1993 Supp. 21-4716, and this case must be remanded for resentencing. We disagree. The State agrees that defendant’s convictions fall within presumptive nonprison grid boxes under K.S.A. 1993 Supp. 21-4704 and that a court must have substantial and compelling reasons to impose a departure sentence. The State argues, however, that the sentences imposed in this case were not departure sentences under K.S.A. 1993 Supp. 22-3716(b), because defendant committed these crimes while on probation. This case involves an interpretation of the KSGA. Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). Therefore, this court’s review of the case is unlimited. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Burglary of a nonresidence, as defined in K.S.A. 1993 Supp. 21-3715, is an offense severity level 7, nonperson felony. The theft defendant was convicted of was a severity level 9, nonperson felony. K.S.A. 1993 Supp. 21-3701. Consequently, the presumptive sentence for defendant would be 19 to 23 months of a nonprison sanction. K.S.A. 1993 Supp. 21-4704(a). Under K.S.A. 1993 Supp. 21-4716, the district court shall impose the presumptive sentence unless the court finds substantial and compelling reasons for a departure and states those reasons on the record. K.S.A. 1993 Supp. 22-3716(b) provides that, if a defendant commits a new felony while on assignment to community corrections for a prior offense, the sentencing court shall impose consecutive sentences for the two offenses. Further, “the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction presumes a non-prison sentence. Such action does not constitute a departure.” K.S.A. 1993 Supp. 22-3716(b). Defendant was assigned to community corrections for prior convictions at the time of these offenses. Therefore, the district court’s imposition of a prison sentence is this case was not a departure, and the district court did not err. Affirmed.
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Brazil, J.: Samir Niyazi appeals the judgment against him for his wife’s medical treatment. He argues that the trial court abused its discretion in denying his motion for continuance, in denying his motion to file an answer out of time, and in striking his amended answer. He also contends there is not substantial competent evidence to support the judgment. We affirm. Joyce Niyazi received treatment at Bethany Medical Center on two separate occasions in August and September 1985. The bill for both hospital stays was $45,418.56. The Niyazis made payments totaling $90, reducing the amount due to $45,328.56. Niyazi argues that the trial court erred in denying his motion for continuance. “The ruling on a motion for continuance is discretionary with the trial court, and an order denying a motion for continuance will not be disturbed on appeal unless there is a clear showing of an abuse of discretion. An abuse of discretion for failure to grant a continuance exists only when no reasonable man would take the view adopted by the trial court.” Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981). Niyazi fails to show how the trial court’s decision constituted an abuse of discretion. The January 10, 1994, trial date was set at a discovery conference on October 29, 1993. Niyazi’s attorney was present. On Friday, January 7, 1994, Niyazi moved for a continuance. The motion stated Niyazi’s attorney would be otherwise engaged in state court on January 10 and, in any event, the trial could not begin because Niyazi’s motion for summary judgment had not been noticed for hearing and the trial could not start prior to a decision on the summary judgment motion. The court spoke with a member of the law firm representing Niyazi on January 7 and told him that the trial would go on as scheduled. Niyazi’s attorney rescheduled the conflicting court date but realized that he had a third conflict in the form of argument scheduled before the Eighth Circuit on the same day. Niyazi’s attorney did not attend the January 10, 1994, trial. The attorney sent another member of his firm in his place, but the substitute attorney was not licensed to practice in this state. Niyazi, though subpoenaed, did not attend the trial. Niyazi had more than two months between the discovery conference and the trial to resolve scheduling conflicts and instead waited until the last business day prior to trial. The trial court did not abuse its discretion in refusing to grant a continuance. Niyazi argues on appeal that the trial court erred in denying his motion to file an answer out of time. He was not present to raise this argument at trial. An issue not raised before the trial court may not be considered on appeal. Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1237 (1991). Even if this court were to reach this issue and conclude that the trial court abused its discretion in denying the motion to file an answer out of time, it would have little bearing on the issues in this case. The trial court addressed the issues of whether Bethany pursued collection of the money from Joyce and whether Joyce had the resources to pay the debt herself. These are Niyazi’s only substantive issues on appeal. The balance of the issues raised in Niyazi's answer were effectively abandoned by his absence at trial. Niyazi does not pursue the issue of the trial court's decision to strike his amended answer. This court will not consider issues not supported by argument or authority. Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991). Niyazi next argues that the trial court erred in finding that Bethany pursued payment of the hospital bill from Joyce. He argues that under St. Francis Regional Med. Center, Inc. v. Bowles, 251 Kan. 334, 836 P.2d 1123 (1992), Bethany was required to obtain a judgment against Joyce and make an attempt to collect that judgment prior to pursuing collection of the bill from him. This presents a question of law over which this court has unlimited review. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). In Bowles, the Kansas Supreme Court held that the common-law doctrine of necessaries then recognized in Kansas violated the Equal Protection Clause. The court expanded the doctrine to apply to husbands and wives equally. 251 Kan. at 340-41. The court closed the opinion with the following language: “However, before a creditor may seek payment from a spouse the creditor must first pursue collection from the person who received the necessary goods or services. Only if the spouse who received the benefits has insufficient resources to satisfy the debt may the other spouse be hable. Such liability is not automatic; the second spouse may raise any defenses available.” 251 Kan. at 341. Niyazi argues that this language requires the creditor to obtain a judgment against the benefitting spouse and unsuccessfully attempt collection of the judgment prior to pursuing collection from the non-benefitting spouse. There is no indication that the Bowles court intended this meaning. In Bowles, the court borrowed the requirement that a creditor must pursue collection from the benefitting spouse and find that the spouse has insufficient funds to pay the debt from two out-of-state cases: Jersey Shore, Etc. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980), and Webb v. Hillsborough Cty. Hosp. Auth., 521 So. 2d 199 (Fla. Dist. App. 1988). An examination of theses cases is helpful to our analysis. The court in Jersey Shore held that “a judgment creditor must first seek satisfaction from the income and other property of the spouse who incurred the debt. If those financial resources are insufficient, the creditor may then seek satisfaction from the income and property of the other spouse.” 84 N.J. at 141. A judgment creditor is “[a] person in whose favor a money judgment has been entered by a court of law and who has not yet been paid.” Black’s Law Dictionary 844 (6th ed. rev. 1990). The language in Jersey Shore contemplates that a creditor first obtain a judgment and attempt to collect on it. In Webb, the Florida court cited Jersey Shore and held that a husband and wife are responsible for necessary goods or services provided to the other. 521 So. 2d at 202. The court also created the requirement that “for purposes of pleading and proof by a creditor, a showing that the spouse to whom necessaries were provided is unable to pay therefor shall be a condition precedent to the liability of the other spouse for the necessaries.” 521 So. 2d at 204. The Bowles decision does not go into detail on the matter. The Kansas Supreme Court did not adopt Webb’s requirement that the benefitting spouse’s inability to pay be pled and proved as a condition precedent to collecting from the other spouse. The court also failed to use the term “judgment creditor” as the court did in Jersey Shore. Although the Kansas court borrowed the concept of limitation on the doctrine of necessaries, it did not go as far as the other states in implying that a judgment must first be obtained through use of the term “judgment creditor,” nor did it state that the benefitting spouse’s failure to pay must be affirmatively pled as part of a collection action against the other spouse. Niyazi fails to designate any authority in support of his position. Bowles has not been interpreted or applied in any other Kansas case. There is nothing in die language of Bowles indicating that a creditor must first obtain a judgment against the debtor spouse prior to pursuing collection of the debt against the other spouse. To require a judgment would unfairly cut off creditors suing both spouses when, as here, the debtor spouse could not be served. There is ample evidence to support the trial court’s conclusion that Bethany otherwise pursued collection against Joyce. This court will not overturn the decision of the trial court if there is substantial competent evidence to support it. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 855 P.2d 929 (1993). Linda Davison, Bethany’s credit manager, testified that Bethany sent the Niyazis billing statements and letters and called Joyce in attempts to collect the bill. At one point, Bethany filed a Medicaid claim on Joyce’s account, but Joyce did not qualify for the benefits. Bethany turned the claim over to a collection agency. Richard Dickerson, a supervisor at General Collection Service, testified that his agency received Joyce’s account in January 1986. General Collection sent a number of letters to the Niyazi home and attempted to reach them by phone at home and at work. Dickerson testified that Joyce moved and changed her phone number frequently. The agency obtained a parent’s address and tried unsuccessfully to contact Joyce through the parent. The agency ran credit bureau reports on Joyce and Niyazi over a period of years in an attempt to locate their current address or phone number. The agency sent letters to the addresses listed on the report hoping to receive a response. Joyce responded to one of the letters on September 13, 1988. She told General Collection that she and Niyazi were separated but had reconciled. She would not give them any information concerning her whereabouts or her husband’s employment. Joyce told the agency she would call back in a few days and arrange to make $100 payments on the debt. Joyce never contacted the agency again. Bethany filed suit on March 1, 1990. There is substantial competent evidence that Bethany pursued collection of the debt from Joyce. Finally, Niyazi argues that there was not substantial competent evidence to support the trial court’s decision that Joyce did not have the resources to satisfy the debt. His argument is without support in the record. Joyce did not have medical insurance to cover her treatment at Bethany. The hospital tried to obtain a medical card for Joyce, but she did not qualify for the benefits. Joyce indicated on her admission forms that her occupation was “housewife.” She indicated on the financial forms that Niyazi was responsible for the bill, although there is no evidence Niyazi himself signed the forms. On one financial form, Joyce checked a box which stated: “I am unable to pay this account and request consideration for assistance from Medicaid, Wyandotte County hospital fund, or other available financial resources.” Further, there is no evidence in the record that Joyce worked outside the home before or after her divorce from Niyazi. Niyazi points to Dickerson’s testimony that Joyce told General Collection that she would arrange to make $100 payments on the debt to Bethany as proof that Joyce was able to pay the debt. Niyazi fails to mention that Joyce also told General Collection that she and Niyazi had reconciled, she was unemployed, and Niyazi was working three jobs. There is substantial competent evidence that Joyce did not have the resources to pay the debt to Bethany. Affirmed.
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Lewis, J.: Defendant was convicted of one count of aggravated batteiy. He appeals, arguing the trial court erred in failing to instruct the jury on certain lesser included offenses. We agree and reverse and remand. Defendant’s problems began with his ill-fated decision to attend a wedding dance. The evening ended with gunfire and bloodshed. There was little good feeling between defendant’s family and the Ramirez/Degollado families. The record indicates that Seferino Ramirez was known to carry a handgun. Because of this fact, defendant made the decision to take his pistol to the dance. Some of the participants at the wedding dance consumed a substantial amount of beer and other alcoholic beverages. Towards the end of the evening, the police were called to intervene in an altercation between defendant and Seferino Ramirez. The police allegedly escorted Ramirez out of the dance hall and kept an eye on him until he “calmed down.” The police left too soon. At midnight, the dance ended and the serious trouble began. Defendant, his wife, two sisters, and two cousins left the dance through a side door, apparently fearing trouble. Defendant and his party got into two vehicles, with defendant driving his pickup. As defendant attempted to leave the area, he observed three Ramirez brothers, two Degollado brothers, and Enrique Rodriguez advancing on foot towards his pickup. He claims the advancing group was throwing beer bottles and cans at his pickup. The State’s evidence indicates the advancing group threw nothing until after shots were fired. Regardless of who is correct, the fact is that defendant fired his .380 caliber semiautomatic handgun three or four times either into the air or at the party advancing towards his pickup. Defendant claims he was shooting into the air, seeking only to frighten the group. He did more than frighten them; his gunshots hit at least three members of the Ramirez/Degollado group. Venancio Ramirez was shot in the stomach. He was taken to the hospital, where exploratory surgery revealed that the bullet had entered his abdomen and gone out through his back. The bullet hit no vital organs, and he recovered from the wound. Reynario Ramirez was shot in both calves. Alfredo Degollado testified that something hit him in the leg, causing a small bruise. His jeans were not tom, and there was no bleeding. Defendant was arrested at his mother s home without incident. The handgun was found in the dirt behind the house. The six-shot pistol had two live rounds jammed in the loading mechanism and was inoperable. Other facts will be developed when necessary. INSTRUCTIONS Defendant was originally charged with two counts of attempted murder (against Venancio Ramirez and Reynario Ramirez), two counts of severity level 4 aggravated battery (against Venancio Ramirez and Reynario Ramirez), and one count of severity level 7 aggravated battery (against Alfredo Degollado). Prior to trial, the State was granted permission, over defendant’s objection, to amend the information to charge attempted first-degree murder and aggravated battery in the alternative. The trial court, over defendant’s objections, instructed the jury as to lesser included offenses of first-degree murder. The jury was also instructed on self-defense. Defendant argues that the trial court erred in failing to instruct the jury on lesser included offenses of level 4 aggravated battery. Defendant did not request this instruction during trial but did raise the issue in his motion for a new trial. Because defendant failed to request the instruction he argues should have been given, our standard of review is whether the failure to give the instruction was clearly erroneous. See State v. Gonzales, 253 Kan. 22, 24, 853 P.2d 644 (1993). “An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.” State v. Deavers, 252 Kan. 149, Syl. ¶ 4, 843 P.2d 695, cert. denied _ U.S__, 125 L. Ed. 2d 676 (1992). At this point, we note that defendant objected at length to the lesser included offense instructions on the charge of attempted first-degree murder. Defendant wished to “go for broke” on the attempted first-degree murder charges. The trial court overruled defendant’s objections, stating: “I’m going to instruct the jury on attempted first-degree murder, attempted second-degree murder, [and] attempted manslaughter because I firmly believe that it’s the court’s duty to instruct the jury on any offense that the defendant could be found guilty of that’s within the information and the evidence.” The trial court correctly stated the law, and it is on the basis of that law that we reverse and remand. In 1994, the crime of aggravated battery was substantially restated by the legislature. It is now subdivided into four severity levels. K.S.A. 1994 Supp. 21-3414(a) provides: “Aggravated battery is: (1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or (B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or (C) intentionally causing physical contact with another person when done in' a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or (2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or (B) recklessly 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. 1994 Supp. 21-3414(b) classifies the different levels of aggravated battery, apparently for the purpose of fitting the crime within the framework of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1994 Supp. 21-4701 et seq.: “Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as described in subsection (a)(2)(B) is a severity level 8, person felony. A person convicted of aggravated battery shall be subject to the provisions of subsection (h) of K.S.A. 1994 Supp. 21-4704 and amendments thereto [presumptive imprisonment if a firearm is used].” We must decide whether the lesser severity levels of aggravated battery are either included offenses or lesser included offenses of level 4 aggravated battery. This is a question of law, and our review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993); State v. Colston, 20 Kan. App. 2d 107, 110, 883 P.2d 1231 (1994). Since the statute involved is a criminal statute, it must be construed strictly against the State. See State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993). “The defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, even though not requested hy the accused. K.S.A. 21-3107(3); State v. Arney, 218 Kan. 369, Syl. ¶ 6, 544 P.2d 334 (1975), cert. denied 128 L. Ed. 2d 345 (1994). Where there is substantial evidence that the lesser degree of the offense charged had been committed, instructions relating to the lesser included offense must be given. State v. Clardy, 252 Kan. 541, Syl. ¶ 2, 847 P.2d 694 (1993).” (Emphasis added.) State v. Gibbons, 256 Kan. 951, 955, 889 P.2d 772 (1995). K.S.A. 21-3107(2) provides: “Upon prosecution for a crime, the defendant may be convicted of either die crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime; (b) an attempt to commit the crime charged; (c) an attempt to commit a lesser degree of the crime charged; or (d) a crime necessarily proved if the crime charged were proved." (Emphasis added.) “In determining whether a lesser crime is a lesser included offense under K.S.A. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of die alleged lesser included crime are among die statutory elements required to prove die crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutoiy elements of the lesser crime are not all included in die statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 1987 Supp. 21-3107(2)(d) if the factual allegations of die charging document and die evidence required to be adduced at trial in order to prove die crime charged would also necessarily prove die lesser crime.” State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988). The trial court has a duty to instruct on all lesser included offenses established by the evidence. This duty arises only where there is some evidence under which a defendant may reasonably be convicted of the lesser included offense. State v. Hammond, 251 Kan. 501, 506-07, 837 P.2d 816 (1992). The duty arises even where the evidence supporting the lesser included offense is weak and is based only upon the testimony of the defendant. “The test is whether the evidence could, within reason, cause a jury to con vict the defendant of the lesser charge.” State v. Manzanares, 19 Kan. App. 2d 214, 218, 866 P.2d 1083 (1994). This duty exists whether defendant requests the instruction or not. State v. Linn, 251 Kan. 797, 805, 840 P.2d 1133 (1992). K.S.A. 21-3107, quoted above, provides that if, in proving the crime charged, the State must necessarily prove another crime, the latter is an included crime of the crime charged. The various elements of each subsection of aggravated battery, as it is now defined by K.S.A. 1994 Supp. 21-3414, are shown on the following chart: (a)(1)(A) level 4 (a)(1)(B) level 7 (a)(1)(C) level 7 (a)(2)(A) level 5 (a)(2)(B) level 8 Intentionally Intentionally Intentionally Recklessly causing causing causing causing Recklessly causing Great bodily Bodily harm Physical Great bodily harm or contact done in harm or disfigurement a rude, disfigurement insulting, or angry manner Bodily harm with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted As can be seen, a level 4 aggravated battery is proven by showing that defendant intentionally caused great bodily harm to the victim. It is difficult to envision how the State could prove a level 4 aggravated battery without necessarily proving a level 7 aggravated battery. A level 7 aggravated battery under 21-3414(a)(l)(B) is shown by proof that a defendant intentionally caused bodily harm to a victim with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted. It appears inescapable to us that in proving great bodily harm in a level 4 charge, the State must necessarily prove bodily harm. The only difference between a level 4 aggravated battery and a level 7 aggravated battery is whether defendant intended to inflict great bodily harm or disfigurement or merely intended to inflict bodily harm, but in a manner "whereby great bodily harm, disfigurement or death can be inflicted.” In proving both charges, the State must prove that defendant intentionally inflicted bodily harm. In addition, in this case, the State’s evidence was that defendant intentionally inflicted bodily harm with a deadly weapon. In this case, the question of whether the bodily harm inflicted was great was a question for the jury. We reject the concept that the trial court may decide, in every case, as a matter of law whether the bodily harm inflicted was or was not great. In the instant matter, the victim certainly suffered bodily harm. He suffered a gunshot wound to the abdomen. Whether this was merely bodily harm or great bodily harm was a matter to be decided by the jury. The State, in attempting to prove that defendant intentionally inflicted great bodily harm, necessarily was required to prove that defendant intentionally inflicted bodily harm. We hold that proof of a level 4 aggravated battery necessarily proves a level 7 aggravated battery as defined- by 21-3414(a)(l)(B). A level 7 aggravated battery is an includéd crime of a level 4 aggravated battery, and the trial court erred in failing to instruct the jury on the level 7 aggravated battery. The evidence in this case would support a conclusion that defendant intentionally inflicted great bodily harm on the victim with a deadly weapon or that defendant intentionally inflicted bodily harm on the victim with a deadly weapon. Whether the harm was great or not was a question of fact to be decided by the jury. Level 5 and level 8 aggravated battery are described by 21-3414(a)(2)(A) and (a)(2)(B). These two subsections substitute the element of recklessness for the element of intent. K.S.A. 1994 Supp. 21-3201(c) defines “reckless conduct” as' “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” In this case, defendant testified that he did not intend to shoot anyone and that he shot his pistol in the air merely to frighten those advancing on his pickup. If the jury were to believe this evidence, it would support a conviction for reckless aggravated battery. The facts show that defendant either intentionally or recklessly inflicted great bodily harm or bodily harm upon the victims. The evidence in this case would support a conviction of any of the various levels of aggravated battery. The distinction between the levels of aggravated battery is the extent of harm inflicted and the mindset of the defendant in inflicting the harm. It is the function of a jury to decide whether the actions were intentional or reckless and whether the harm was great or not. The facts used to prove the charge of severity level 4 aggravated battery would also prove severity levels 5 and 8 aggravated battery, depending upon the manner in which the evidence was viewed by the jury. We hold that severity levels 5 and 8 aggravated battery are lesser included offenses of severity level 4 aggravated battery and that the trial court erred in failing to instruct the jury on severity levels 5 and 8 aggravated battery. We now turn to our standard of review. We conclude from our review of the record that had the trial court instructed the jury on the lesser included offenses of aggravated battery, a real possibility existed that the jury would have returned a different verdict. Under our standard of review, the failure of the trial court to instruct the jury on the lesser included crimes is reversible error and, accordingly, we reverse defendant’s conviction and remand for a new trial. SUFFICIENCY OF THE EVIDENCE Defendant argues there was insufficient evidence to find beyond a reasonable doubt either the intent or the great bodily harm necessary to sustain a conviction for level 4 aggravated battery. We do not agree. "When the sufficiency of the evidence is challenged in a criminal case, 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. Borthwick, 255 Kan. 899, Syl. ¶ 1, 880 P.2d 1261 (1994). Our remarks in discussing the issue of instructions indicate that we believe the evidence was sufficient to convict defendant of level 4 aggravated battery. We conclude defendant’s argument on this issue is without merit. The other issues raised by defendant are rendered moot by our decision to reverse his conviction and remand for a new trial. We note in closing that the county attorney in his closing argument to the jury said, “And if you, as a jury — And that is what you’re here for, you’re right here in this jury box, . . . and you’re fixing to set the standard in this community about what reasonable is.” There was an objection to that comment which the trial court overruled, but the court ordered the county attorney to “keep his comments within the instructions, within the law.” We simply observe that those remarks by the prosecuting attorney stand on the very edge of propriety. We suggest that upon a retrial of this matter, the county attorney confine his comments to the evidence and the instructions. Reversed and remanded.
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Elliott, J.: In these five consolidated cases, appellants appeal the trial court’s findings that their workers compensation benefits may be attached for past due child support, even though their work-related injuries occurred prior to the 1993 amendment to the workers compensation law, which now allows involuntary attachments for past due child support. We affirm. The facts are not in dispute and are essentially as related above. Prior to the 1993 amendments, workers compensation law contained a spendfhrift/exemption/anti-alienation section. Prior to the 1993 amendment, K.S.A. 44-514 provided that no claim for compensation was assignable or subject to attachment and the “exemption” could not be waived. As of July 1, 1993, K.S.A. 44-514 was divided into subsections (a) and (b). Subsection (a) is essentially as it was before. Subsection (b) states workers compensation benefits shall be subject to an order for support by either voluntary or involuntary assignment. Appellants’ argument necessarily assumes that when the legislature amended the statute, it changed existing law. We disagree. Ordinarily, there is a presumption that a change in the language of a statute results from the legislative purpose to change its effect. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982). The 1993 amendment to the statute we must consider is but one part of an extensive revision of workers compensation law. See L. 1993, ch. 286. Moreover, extensive research into the legislative intent behind the amendment produced no information of any consequence on the specific amendment. Thus, it is unclear whether the legislature intended to change the law or merely codify existing law. The closest case we have found to the present issue is Monson v. Battelle, 102 Kan. 208, 170 Pac. 801 (1918), where the injured worker assigned his award in trust for his children. Defendant argued the assignment was invalid under the provision prohibiting assignment. The court stated, “An assignment to a trustee for the benefit of the children of an injured workman would not seem necessarily to conflict with the spirit of the law. We shall assume, however, without deciding, that the assignment is invalid.” 102 Kan. at 209. The majority of other states considering this issue hold the general exemption statutes do not apply to attachments for past due child support. See, e.g., Annot., Construction and Effect of Statutory Exemptions of Proceeds of Workmen’s Compensation Awards, 31 A.L.R.3d 532, § 6. See 82 Am. Jur. 2d, Workers’ Compensation § 727. Kansas appears to follow this policy with regard to other general exemption/anti-assignment statutes. See Mahone v. Mahone, 213 Kan. 346, Syl. ¶ 3, 517 P.2d 131 (1973) (accumulated funds due and owing from KPERS may be reached to satisfy child support orders; K.S.A. 74-4923 exemption not applicable). After Mahone, the legislature amended the statute to expressly prohibit attachment of KPERS funds to pay support and alimony. L. 1974, ch. 338, § 1. In 1991, the legislature reversed itself. See L. 1991, ch. 238, § 3. Kansas has consistently held that property exempted by statute is ordinarily not exempt from claims for maintenance or past due child support. See Mariche v. Mariche, 243 Kan. 547, 550, 758 P.2d 745 (1988) (federal social security disability benefits; In re Marriage of Schoneman, 13 Kan. App. 2d 536, 775 P.2d 194 (1989) (individual retirement accounts). Then came In re Marriage of Johnson, 19 Kan. App. 2d 487, Syl. ¶ 3, 872 P.2d 308 (1994), where we held the homestead exemption protects against forced sale to satisfy a judgment lien for past due child support predating the acquisition of the homestead. How Johnson compares with Johnson v. Johnson, 66 Kan. 546, 72 Pac. 267 (1903), and Blankenship v. Blankenship, 19 Kan. 159 (1877), wherein the courts allowed liens on homesteads for alimony judgments, we need not decide. We are thus left with a general exemption statute and claims for past due child support. Applying Mahone and its progeny and our rules of statutory interpretation, K.S.A. 44-514 does not prevent attachment of workers compensation benefits to satisfy past due child support obligations. The 1993 amendments did not change the law but merely codified it. Appellants ¿so argue the trial court retrospectively applied the post-amendment version of K.S.A. 44-514. Frankly, the five journal entries do indicate this to be the fact. However, we will affirm the trial court when it is . right for any reason. See Bank of Kansas v. Davison, 253 Kan. 780, 861 P.2d 806 (1993). The outcome remains the same: Appellants’ workers compensation benefits are subject to attachment to satisfy past due child support obligations. We need not reach other issues raised on this appeal. Affirmed.
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Per Curiam: This is a workers compensation action in which claimant, Bobby G. Berry, appeals from the factual findings of the Workers Compensation Board of Review (Board) as to his date of injury and extent of disability. Respondent Boeing Military Airplanes, insurance carrier Aetna Casualty & Surety Company, and the Workers Compensation Fund previously stipulated to the apportionment of liability among them. Consequently, there are no related issues except for claimant’s appeal. We affirm in part, reverse in part, and remand for further proceedings. The essential facts are as follows: According to the findings of the Administrative Law Judge (ALJ), adopted by the Board, on May 12, 1987, claimant injured his ieft ring finger while working for respondent. Claimant was a sheet metal worker, and the injury occurred while he was using a rivet gun. As the pain in his finger did not subside, claimant visited respondent’s medical center on May 15, 1987. On May 19, 1987, claimant filed a disability benefit claim form, claiming work-related problems with his left fingers and hand. On June 2, 1987, claimant saw Dr. Lucas, a board certified orthopedic surgeon. Dr. Lucas diagnosed claimant as having carpal tunnel syndrome in his left wrist. As this prevented claimant from painlessly performing sheet metal work, claimant was transferred to the panel shop. This job, however, exceeded claimant’s weight restrictions and aggravated his condition. Claimant was then asked to transfer to a department where he would work with small parts — a position more accommodating to his injury. However, this new position paid 10% less than claimant’s previous job. Claimant agreed to take the new job, in spite of the reduced pay, until he learned that he would also be required to work a great deal of overtime. Unwilling to work the increased hours, claimant was fired. On September 30, 1987, Dr. Lucas performed surgery on claimant’s left wrist. Although surgery alleviated the pain in his left hand, claimant soon began developing symptoms in his right hand. The same operation was performed on November 20, 1987, on claimant’s right wrist. On July 11, 1988, claimant filed a claim with the Division of Workers Compensation. On May 26, 1990, claimant saw Dr. Artz and reported that the surgexy performed by Dr. Lucas only minimally improved his condition. Claimant was given cortisone injections, which temporarily alleviated his pain; however, he eventually had to have surgexy on both hands in February and March of 1992. On July 30, 1993, claimant submitted his case to the ALJ. The ALJ determined the date of claimant’s bilateral carpel tunnel syndrome to be August 27, 1987, as that was the last day claimant worked for respondent. Accordingly, the ALJ applied the law in effect on that date. The ALJ found that claimant had introduced no evidence concerning his inability to perform work in the open labor market, nor did he introduce evidence regarding his inability to earn comparable wages. The ALJ concluded claimant was not entitled to work disability and limited claimant’s disability rating to a functional impairment of 5% in each arm, for a general impairment of 10%. Claimant applied for review by the Board. The Board found that the date of claimant’s work accident was the last day claimant worked. The Board, however, disagreed with the ALJ that claimant had a 10% functional impairment, as this impairment rating was based upon the testimony of Dr. Artz, who did not see claimant until long after he was terminated by respondent. Nonetheless, the Board affirmed the award. The Board found there was sufficient evidence offered to show that claimant’s ability to earn a comparable wage had been reduced by 10%. This conclusion was based upon the fact that claimant could have taken another job with respondent which paid 10% less than his previous salary. Claimant appeals to this court, alleging his “date of accident” occurred prior to July 1987. As such, claimant argues the post-July 1987 law which requires evidence as to loss of access to the open labor market and loss of the ability to earn comparable wages is inapplicable. Additionally, claimant argues that even under the amended statute, he provided the factfinder with sufficient evidence to show that his loss of access to the open labor market and loss of the ability to earn comparable wages has been affected by his injury and that he is entitled to an award greater than 10%. STANDARD OF REVIEW K.S.A. 44-556 specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. That Act limits the relief granted on appeal. K.S.A. 77-621(c). K.S.A. 77-621(c)(4) and (7) are relevant for purposes of this appeal: “The court shall grant relief only if it determines any one or more of the following: “(4) the agency has erroneously interpreted or applied the law; “(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by tire court under this act.” The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, to questions of law. K.S.A. 44-556(a). However, whether the Board’s findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c][7]) is a question of law. Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). DATE OF INJURY One method of determining whether the Board accurately found the date of accident might be to determine whether carpal tunnel syndrome is a personal injury caused by accident or an occupational disease. The distinction has not been addressed by the appellate courts of this state. If it is an occupational disease, the injury is deemed to have “occurred” on the last day worked. K.S.A. 44-5a06. However, if it is a condition caused by an accident, the injury is deemed to have “occurred” on the date of the injury. K.S.A. 44-510e(a). According to K.S.A. 44-508(d): “ ‘Accident’ means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment.” Similarly, K.S.A. 44-5a01(b) states in part: “ ‘Occupational disease’ shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. ‘Nature of the employment’ shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk.” Carpal tunnel syndrome could be construed to fall within the boundaries of either of the above definitions. “[Historically,] the two crucial points of distinction between accident and occupational disease were the element of unexpectedness and the matter of time-definiteness. What set occupational disease apart from accidental injuries was both the fact that they could not honestly be said to be unexpected, since they were recognized as inherent hazard[s] of continued exposure to conditions of die particular employment, and the fact that they were gradual rather than sudden in onset.” IB Larson, The Law of Workman’s Compensation § 41.31 (1992). The decisions in other states regarding this issue are inconsistent. At least five states, Illinois, Indiana, Minnesota, Nebraska, and Tennessee, have found carpal tunnel syndrome to fall within their statutory definition of accident. See Peoria County Belwood v. Ind. Com., 115 Ill. 2d 524, 505 N.E.2d 1026 (1987); Duvall v. ICI Americas, Inc., 621 N.E.2d 1122 (Ind. App. 1993); Jones v. Thermo King, 461 N.W.2d 915 (Minn. 1990); Schlup v. Auburn Needleworks, Inc., 239 Neb. 854, 479 N.W.2d 440 (1992); Barker v. Home-Crest Corp., 805 S.W.2d 373 (Tenn. 1991). Alternatively, at least four other states, Idaho, Louisiana, Maryland, and Missouri, have determined that under their state statutes, carpal tunnel syndrome is not an accident but an occupational disease. Kinney v. Tupperware Co., 117 Idaho 765, 792 P.2d 330 (1990); Freeman v. Poulan/Weed Eater, 618 So. 2d 618 (La. App. 1993); Lettering v. Guy, 321 Md. 305, 582 A.2d 996 (1990); Jackson v. Risby Pallet & Lumber Co., 736 S.W.2d 575 (Mo. App. 1987). According to Professor Larson, there are two alternative criteria for determining the date of accident where the injury is gradual. The first is the time at which the employee can no longer perform his or her job. The other is the onset of pain which necessitates medical attention. IB Larson, The Law of Workman’s Compensation § 39.50. Illinois formulated a third method to fix the date of injury— when the employee becomes aware of the injury and aware of its relation to the job. In 1987, the Illinois Supreme Court heard Peoria County Belwood v. Ind. Com., 115 Ill. 2d at 531, and concluded: “We therefore hold that the date of an accidental injury in a repetitive-trauma compensation case is the date on which the injury ‘manifests itself.’ ‘Manifests itself’ means the date on which both the fact of the injury and the causal relationship of tire injury to the claimant’s employment would have become plainly apparent to a reasonable person.” However, this bright line test was later greatly weakened. In Oscar Mayer & Co. v. Industrial Comm’n, 176 Ill. App. 3d 607, 531 N.E.2d 174 (1988), the Illinois Court of Appeals acknowledged that an employee who continues to work on a regular basis despite his or her own progressive ill-being should not be punished merely for trying to perform his or her duties without complaint. Indeed, some employees might realize that there is a problem many years before that problem actually prevents the employee from working. Under the Peoria Belwood rule, employees were either forced to submit a claim before they were actually disabled, or if they waited, they would be unable to recover due to limitation of actions and notice problems. Consequently, the Oscar Mayer court construed Peoria Belwood to hold that the date of injury is a factual determination which varies depending on the circumstances. The court stated: “The date of disablement, be it for reason of medical treatments such as surgery, or actual collapse of the physical structure, is but one aspect of the proof the parties may bring to bear on the issue of manifestation of the injury. Where, as here, the relationship of the injury to the employment is acknowledged by respondent, as well as the fact claimant continued to perform his duties until the day prior to the surgery required to correct the condition, the Commission could reasonably determine the last day claimant worked was the date of accident. In short, we hold the term ‘fact of the injury’ as used by the supreme court in Peoria Belwood [citation omitted] is not synonymous with ‘fact of discovery.’ “We reiterate we are dealing with a repetitive-trauma injury. Nothing we say here should be interpreted as establishing an inflexible rule. Just as we reject respondent’s contention the date of discovery of the condition and its relation to the employment necessarily fixes the date of accident, we reject any inter pretation of this opinion which would permit the employee to always establish the date of accident in a repetitive-trauma case by reference to last date of work.” 176 Ill. App. 3d at 612. Similarly, in Three “D” Discount Store v. Indus. Comm’n, 198 Ill. App. 3d 43, 49, 556 N.E.2d 261 (1989), the court stated, “[W]e emphasize that the peculiar facts of each case must be closely analyzed in repetitive-trauma cases to be fair to the faithful employee and his employer as well as to the employer’s compensation insurance carrier.” Other states which consider carpal tunnel syndrome to be an accidental injury, not an occupational disease, have also been called upon to detennine the exact date of injury. In Jones v. Thermo King, 461 N.W.2d 915, the Minnesota Supreme Court dated the injury from when the employee has sufficient information to put the employer on notice that the employee has a potential claim. Alternatively, the Tennessee Supreme Court held that in a case of gradual injury, such as carpal tunnel syndrome, the accidental injury is deemed to occur when the employee is no longer able to work. Barker v. Home-Crest Corp., 805 S.W.2d 373. In Maine, the injury is said to occur when it “fully manifests itself.” Ross v. Oxford Paper Company, 363 A.2d 712, 714 (Me. 1976). In Duvall v. ICI Americas, Inc., 621 N.E.2d at 1127, the Indiana Court of Appeals held that carpal tunnel syndrome “occurs” when the injury is “discernible.” The court specifically rejected the employee’s argument that the injury occurred when it prevented her from earning full wages. Finally, in Pennsylvania, the date of injury in carpal tunnel syndrome cases has been deemed to be the date of diagnosis. Brooks v. W.C.A.B. (Anchor Glass), 155 Pa. Commw. 248, 624 A.2d 821 (1993). The Brooks court stated: "While Claimant's condition continued to worsen after 1985 to the point where he was no longer able to work in 1988, this does not negate the fact that Claimant was first diagnosed as being injured in 1985 and that he could have maintained a claim, at least for medical benefits, as early as 1985.” 155 Pa. Commw. at 252-53. The inconsistency of other state decisions, combined with the lack of precedent in this state, provides us with a perplexing prob lem. Further complicating matters is the fact that claimant did not complain of pain in his right hand until October of 1987. According to the law of this state, where only one hand is stricken with carpal tunnel syndrome, the injury is compensated as a scheduled injury pursuant to K.S.A. 44-510d. Downes v. IBP, Inc, 10 Kan. App. 2d 39, 691 P.2d 41, rev. denied 236 Kan. 875 (1984). However, where both hands are plagued with the infirmity, the claimant is entitled to compensation under K.S.A. 44-5lOe as a permanent partial general disability. Murphy v. IBP, Inc., 240 Kan. 141, 145, 727 P.2d 468 (1986). Here, the Board found the date of injury to be August 27, the last day worked, and further found the injury to be a permanent partial general disability. However, there was no evidence that claimant’s carpal tunnel syndrome was bilateral until October. Indeed, between August and October, claimant was unemployed. This fact could lead to the inference that the carpal tunnel syndrome existed in both hands at the time he was fired, as there was nothing between August and September to create the condition in his right hand. However, the basis for the Board’s use of the permanent partial general disability statute is unclear. Our analysis to this point has demonstrated the complexities in fixing the “date of injury” or “date of occurrence” in a carpal tunnel syndrome case. We hold that the claimant’s date of injury as to his left wrist and as to his bilateral carpal tunnel condition will be the same — the last day he worked for respondent. This offers simplicity and establishes uniformity in the process in dealing with carpal tunnel syndrome cases. It also eliminates the problem of sorting out a scheduled injury from an injury which has caused permanent partial general disability. Since the disability is to be computed from the last day of work, we have one injury, that being a bilateral carpal tunnel injury, and only one injury on which to determine claimant’s disability. In the final analysis, whether carpal tunnel syndrome is a personal injury caused by accident or an occupational disease is nothing more than an interesting issue of semantics. We conclude that we need not decide that question. The key to resolving the issues on this appeal is to fix the date from whence compensation is to be computed. It does not seem to us to be essential to decide whether carpal tunnel syndrome is a “personal injury caused by accident” or an “occupational disease.” Our goal is to establish a bright line rule on which to fix the “date of injury” or “date of occurrence.” At this point, we pause to note that our opinion deals only with compensating a claimant for disabilities suffered as a result of carpal tunnel syndrome. It does not and should not be confused with whether the condition is job related and has nothing to do with medical reimbursements for an on-the-job injury or occupational disease. Under our statutory scheme, disability compensation must begin at some fixed point in time. In the case of disability which is the result of a personal injury caused by accident, the date of the accident becomes the date from whence compensation flows. K.S.A. 44-510e(a)(l). In the case of an occupational disease, the injury or condition is deemed to have “occurred” on the last day worked. K.S.A. 44-5a06. In the instant matter, both the ALJ and the Board concluded that the last day of work should be deemed as the date of occurrence, at least insofar as the bilateral carpal tunnel condition is concerned. We affirm that decision. We carry that decision one step further and conclude that the last day of work should be the date from when disability is computed in all cases involving carpal tunnel syndrome. There are other possible dates. We could select the date on which the injury first “manifested itself.” We could select the date on which the injury is first “diagnosed.” However, as is illustrated by the Illinois decisions in Peoria County Bellwood and Oscar Mayer, those two dates can be prejudicial to some claimants. If we were to adopt either the date on which the injury “manifests itself” or the date on which the injury is “diagnosed,” we would set a potential trap for the individual who, despite pain and discomfort, continues to work long after his or her carpal tunnel is “diagnosed” or has “manifested itself.” Those individuals would find their claims for compensation barred by the statute of limitations. It seems to us that we should adopt the rule that causes the least potential prejudice and upholds the spirit of our Workers Compensation Act. We believe use of the last day of work accomplishes both of those purposes. The fact is, carpal tunnel syndrome appears to be a hybrid condition that is neither fish nor fowl. It is a condition caused by repetitive trauma over a long period of time. While it is true that it is caused by trauma and thereby fits the definition of an “injury caused by accident,” it is nonetheless a condition that defies any attempt to affix the precise date the accident occurred. For example, in this case, claimant's bilateral carpal tunnel syndrome was not diagnosed until several months after he left his job. If we were to adopt the date of “diagnosis” analysis, we would be awarding compensation to begin at a time several months after claimant left his employment. This does not seem to be a logical result. Despite that fact, if claimant’s condition was caused by or related to his job with respondent, claimant is entitled to be compensated for the condition even though it neither was “diagnosed” nor “manifested itself” until several months after he left his job. We conclude that where the evidence indicates that the bilateral carpal tunnel syndrome condition was caused by claimant’s work for respondent, then the date of “occurrence” or date of “injury” relates back to the last date on which claimant worked. The same analysis is applied to the carpal tunnel syndrome that afflicted claimant’s left wrist. The date of “occurrence” of this condition is also the last day of work. This is the date on which claimant’s condition became so painful and debilitating that he could no longer perform his job functions. This was the date, in fact, on which he became “disabled” as a result of carpal tunnel syndrome. The selection of the last day of work as the date of occurrence or date of accident satisfies the philosophy of the Workers Compensation Act and does not offend a logical approach to the issue. We hold that carpal tunnel syndrome is a condition that cannot logically be said to be either a personal injury caused by accident or an occupational disease. Because of the complexities of locating the date of injury in a carpal tunnel syndrome case, the process is simplified and made more certain by adopting a rule that in a carpal tunnel syndrome action, the date from which compen sation flows is the last date worked by the claimant. This date will not only simplify the process, it offers the least potential prejudice to future claimants. In establishing this date, we decline to label the condition. It is a condition that lies somewhere in between a personal injury caused by accident and an occupational disease. It has features of both, but best lends itself to a “last day of work” analysis as the date of injury or occurrence. We affirm the decision entered by the Board, determining the date of injury or date of occurrence in this case to be claimant’s last day of work. We also establish that date as a bright line rule to be applied in similar carpal tunnel syndrome cases in the future. PERMANENT PARTIAL DISABILITY Prior to 1987, K.S.A. 44-510e (Ensley 1986) stated in part: "The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the workman to engage in work of the same type and character that he was performing at the time of his injury, has been reduced.” This was known as the “physical impairment” test. Using that theory, the factfinder determined the amount of disability by examining the extent to which the injured worker’s ability was impaired to engage in work of the same type and character which was being performed at the time of the injury. Ploutz v. Ell-Kan Co., 9 Kan. App. 2d 9, 12, 668 P.2d 196 (1983), aff’d 234 Kan. 953, 676 P.2d 753 (1984). Because a worker’s capacity or actual wage loss was not considered, it was possible for a worker to change job functions and earn the same wages but still receive a maximum award for disabilities because the worker could not perform work of the same type and character that was being performed at the time of the injury. Antwi v. C-E Industrial Group, 5 Kan. App. 2d 53, 60-61, 612 P.2d 656, aff’d 228 Kan. 692, 619 P.2d 812 (1980). In July of 1987, 44-510e was amended to read in part: “The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee’s education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial general disability shall not be less than the percentage of functional impairment. Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence. There shall be a presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury.” (Emphasis added.) Although not relevant to this appeal, we note that the provision has since been amended. Currently, the method of calculating disabilities for a permanent partial general disability is figured by determining the extent to which the employee has lost the ability to perform his or her prior work, averaged, together with the difference between the income earned at his or her prior position and the income earned after the accident. The extent to which the employee has lost the ability to perform his or her work is to be determined using physician testimony. Thus, it appears the legislature has combined the pre-1987 and post-1987 law on this issue. K.S.A. 44-510e(a). As we understand the record, under any theory, claimant’s date of bilateral injury must be fixed some time later than July 1987. Utilizing the 1987 amended version of the statute, the Board found that claimant failed to prove an inability to perform in the open labor market but did show an inability to earn comparable wages in the amount of 10%. With respect to loss of access to the open labor market, the Board found claimant failed to sustain his burden of proof. “Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice [a negative finding by the trier of fact] cannot be disturbed” on appeal. Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989). There is no evidence the Board’s decision was based upon passion or prejudice or that the Board arbitrarily disregarded undisputed evidence. Thus, assuming the proper statute was applied, the Board’s finding regarding loss of access to the open labor market is affirmed. However, the Board’s finding that claimant only proved a 10% loss of wage earning capacity is not supported by the record. After discontinuing work as a sheet metal worker, respondent offered claimant a position in the small parts division for a 10% decrease in pay, which claimant refused. The Board found that claimant had shown a 10% loss of wage earning capacity because such was the disparity between the income of these two positions. The Board did not incorporate the income of the job claimant actually accepted with Smith Fiberglass, which paid $7.00 per hour (a 39% decrease). Claimant testified that he refused the Boeing job in the small parts division because at that position he would have had to work 12 hours a day, 7 days a week. Although an 84-hour work week seems highly unlikely, this evidence was uncontradicted and must be assumed to be true. Why the Board chose to use the salary of a job the claimant was unable to perform (due to the exceptional amount of hours), rather than the salary of the position that claimant actually procured, is unclear. On remand, the factfinder should either include the Smith Fiberglass salary in its formulation of claimant’s loss of wage earning capacity or provide a sufficient basis for omitting the same in its computation. We conclude that the Board improperly determined claimant’s loss of wage earning capacity under the facts of this case. Affirmed in part, reversed in part, and remanded for further proceedings.
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Brazil, J.: Gentle Shepherd Child Placement Services, Inc., (Gentle Shepherd) appeals from an order refusing to terminate the parental rights of K.D.O.’s natural father pursuant to K.S.A. 59-2136(h)(4). We affirm. Shortly after discovering she was pregnant, the natural mother informed the putative father about the pregnancy. They discussed abortion as an option; however, at some point the mother changed her mind and decided to put the child up for adoption. The father was opposed to the adoption plan and argued against it, indicating his desire to keep the child. Two days after giving birth to K.D.O., the mother executed a relinquishment of her minor child to Gentle Shepherd. The moth er’s husband also executed relinquishment of K.D.O. to Gentle Shepherd. Twelve days later, Gentle Shepherd filed a petition for termination of the fathers parental rights pursuant to K.S.A. 59-2136(h)(4). After an evidentiary hearing, the trial court denied the petition. Gentle Shepherd filed a motion to reconsider, which was also denied. Under K.S.A. 59-2136(h)(4), parental rights may be terminated if the trial court finds, upon clear and convincing evidence, that “the 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.” Conversely, where a trial court has found that a father has failed to provide support for the mother during the six months prior to the child’s birth, but has a reasonable cause for such failure, K.S.A. 59-2136(h)(4) may not serve as a ground for terminating his parental rights. A trial court’s order terminating parental rights under K.S.A. 59-2136(h)(4) will be upheld if it is supported by substantial competent evidence. In re Baby Boy N., 19 Kan. App. 2d 574, 586, 874 P.2d 680, rev. denied, 255 Kan. 1001 (1994), cert. denied November 28, 1994. An appellate court does not weigh the evidence or pass upon the credibility of witnesses. This court must review the evidence in the light most favorable to the party prevailing below. 19 Kan. App. 2d at 586. Certain tests and rules apply in proceedings to terminate parental rights under K.S.A. 59-2136(h)(4). Neither the best interests of the child nor the fitness of the nonconsenting parent are controlling factors. All relevant surrounding circumstances must be considered and may include the father’s conduct more than six months before the birth of the baby. 19 Kan. App. 2d at 586-87. See also In re Guardianship of Williams, 254 Kan. 814, 826, 869 P.2d 661 (1994), holding that absent highly unusual circumstances, the best interests of the child test has no application in determining whether a parent, not found to be unfit, is entitled to custody as against a third-party nonparent. It is undisputed that except for $100 which he gave to the mother, the father did not provide her with any support during her pregnancy. However, the father testified that when the mother informed him that she was not going to have an abortion, he told her that he would support her and the baby. Specifically, he offered money, the use of his vehicle if she needed a ride, and to obtain other items for the baby. He offered to drive the mother to the hospital when the baby was due. In addition, the father offered to marry the mother and pay for her divorce from her present husband. The father testified that he contacted the mother throughout her pregnancy except for a brief period when her phone was disconnected. He stated that at some point she refused to let him come and visit her. The father testified that the mother refused all offers of support. The mother testified that the father offered to provide support including use of his car if she needed a ride but that she did not want to be bothered by his offers. She stated, “I pretty much just shut him out and it was just myself and the social worker working towards that goal of getting through the pregnancy.” The trial court found that although the father failed to provide support to the mother during her pregnancy, he had a reasonable cause for his failure, namely, the mother s refusal to accept his offers of support. Substantial competent evidence supports the trial court’s finding that the father had a reasonable cause for his failure to provide the mother with support in the six months preceding the child’s birth. Gentle Shepherd argues this case is similar to In re Baby Boy N., 19 Kan. App. 2d 574, a case in which this court upheld the termination of a natural father’s parental rights under K.S.A. 59-2136(h)(4). However, the evidence before the trial court in that case showed that the natural father terminated his relationship with the natural mother after learning of the pregnancy. He never inquired about the needs of the natural mother or offered her any support in the six months before the child was bom. Nor was evidence presented which showed that the natural mother would have refused support had the natural father offered it. Here, in contrast, the father’s testimony suggests he offered to provide the mother support during her pregnancy, even offering to marry her, but that she refused all offers of support. The moth er’s own testimony suggests she rebuffed his offers of support in favor of proceeding with the adoption plan. Where a trial court finds that a father’s reasonable efforts to provide support for the mother during the six months prior to the child’s birth have failed because of interference by the mother, an adoption agency, or the adoptive parents, K.S.A. 59-2136(h)(4) should not operate to terminate his parental rights. 19 Kan. App. 2d at 585. See also In re Adoption of Baby Boy B., 254 Kan. 454, 465, 866 P.2d 1029 (1994) (“The district court properly considered her [natural mother’s] refusal as a factor in determining if the father provided support to the mother.”). While the mother offered evidence that the father did not have a reasonable cause for his failure to provide support, the trial court chose to believe the father’s version of events. This court does not weigh evidence or pass on the credibility of witnesses. See Manhattan Mall Co. v. Shult, 254 Kan. 253, 257, 864 P.2d 1136 (1993). Affirmed.
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Rulon, J.: Lonnie T. Cooper, defendant, appeals his jury conviction of theft, a class E felony, in violation of K.S.A. 21-3701, claiming the district court erred by excluding evidence of defendant’s out-of-court statement that he was intoxicated at the time of his arrest. We affirm. The essential facts are undisputed: On the evening of April 26, 1991, John Carpenter reported his car stolen. John Cosgrove, a police officer on duty that night, noticed someone driving a car with a broken window. Cosgrove determined such vehicle was Carpenter s stolen car. After a high-speed chase, the police eventually apprehended defendant in the stolen car. Eventually, the State charged defendant with alternative theories of theft: either defendant obtained unauthorized control over the stolen car or defendant obtained control over the car with knowledge that such had been stolen by another. A jury convicted defendant of felony theft. At trial, Cosgrove testified the vehicle in question had an out-of-state license, a broken wing window, no keys, a broken steering column, and an open glove box with its contents strewn about the car, and that defendant was the only occupant. The only evidence of intoxication that came before the jury was Cosgrove’s testimony that the odor of alcohol on defendant’s breath was not enough to warrant a DUI investigation. Cosgrove further testified that defendant was coherent and functioning properly at the time of arrest, was not wobbling, and did not appear intoxicated. Cosgrove further testified defendant was knocked unconscious when the car he was driving hit a bridge embankment as a result of the high-speed chase. According to Cosgrove, defendant regained consciousness by the time the police pulled him out of the car and placed him in handcuffs. Cosgrove additionally testified emergency personnel wanted defendant to go to the hospital, but defendant refused treatment. Prior to the trial, defendant filed a pretrial motion seeking to admit into evidence his out-of-court statement to a police detective that he was intoxicated the evening of his arrest. Defense counsel further informed the district court that defendant planned to exercise his Fifth Amendment privilege against self-incrimination at trial. Defense counsel argued that because defendant’s statement to the detective was a declaration against his interest, such statement qualified as an exception to the hearsay rule and could be admitted as evidence under K.S.A. 60-460(j). The court found that defendant’s statement was neither a statement against interest nor a confession and consequently was inadmissible hearsay. VOLUNTARY INTOXICATION Defendant argues that his statement that he was intoxicated was admissible because such was evidence that his judgment and perceptions were impaired. According to defendant, he could not have possessed the mental state of mind to commit the crime of theft. Voluntary intoxication is not a defense to a general intent crime, but such intoxication may be used to demonstrate a defendant’s inability to form a particular state of mind necessary for a specific intent crime. State v. Warren, 252 Kan. 169, 174, 843 P.2d 224 (1992) (citing State v. McDaniel & Owens, 228 Kan. 172, 177, 612 P.2d 1231 [1980]). Theft is a specific intent crime. State v. Keeler, 238 Kan. 356, Syl. ¶ 2, 710 P.2d 1279 (1985). Defendant contends that his pre-arrest statement to the police that he was intoxicated was a declaration against his interest and was admissible as an exception to the hearsay rule under K.S.A. 60-460(j). We disagree. The district court concluded that defendant could not be present in the courtroom, elect not to testify and avoid cross-examination, and then take advantage of his previous out-of-court statement. A district court has wide discretion in determining the admissibility of hearsay evidence under the declaration against interest exception. State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993) (citing State v. Quick, 226 Kan. 308, 317, 597 P.2d 1108 [1979]). Discretion is abused when no reasonable person would agree with the court. State v. Baker, 255 Kan. 680, Syl. ¶ 9, 877 P.2d 946 (1994). K.S.A. 60-460(j) contemplates that certain out-of-court statements are admissible in court if the judge, using judicial discretion, finds that a proffered hearsay statement was at the time of assertion so far contrary to the declarant’s interest or subjected the declarant to civil or criminal liability to the extent that a rea sonable person in declarant’s position would not have made the statement unless he or she believed such statement to be true. State v. Bird, 238 Kan. 160, 174, 708 P.2d 946 (1985). In addition to meeting the requirements of K.S.A. 60-460(j), the offering party must also make a showing of trustworthiness by the declarant. State v. Jones, 246 Kan. 214, 219, 787 P.2d 726 (1990) (citing Thompson v. Norman, 198 Kan. 436, 443, 424 P.2d 593 [1967]). Usually the declaration against interest exception, which is used in a criminal case, occurs when the defendant calls a witness who testifies that a third party has admitted to the crime of which the defendant is accused. State v. Jones, 246 Kan. 214; State v. Jackson, 244 Kan. 621, 772 P.2d 747 (1989); State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985); State v. Prince, 227 Kan. 137, 605 P.2d 563 (1980). The question here is whether defendant can use K.S.A. 60-460(j) to call a witness to testify to a statement made by this defendant, not a third party, that can now benefit defendant’s defense, even though defendant exercised his Fifth Amendment rights and did not testify. Defendant’s argument that his statement to the police is a declaration against interest is an unsuccessful effort to get such statement before the jury. Unfortunately for defendant, other relevant exceptions to the hearsay rule do not apply either. First, K.S.A. 60-460(a) is not applicable because defendant has exercised his Fifth Amendment right not to testify and a previous statement of a person present requires the declarant to be available and subject to cross-examination. Second, K.S.A. 60-460(f) does not apply because defendant’s statement was not a confession relative to the offense of theft. Third, the exception in K.S.A. 60-460(g) refers to statements that are made by one party against another party and here, those parties are one and die same. Even if this court were to permit defendant to utilize the declaration against interest exception in this manner, defendant must still satisfy the requirements of K.S.A. 60-460(j). The declaration against interest hearsay exception is subject to the same limitations as the hearsay exception dealing with confessions. Under K.S.A. 60-460(f), a confession must be made when a person is conscious and capable of understanding what he or she is saying and is free of threats or coercion. In addition to meeting the requirements of K.S.A. 60-460(j), the offering party must also make a showing of trustworthiness by the declarant. Defendant contends that his out-of-court statement supports his theory of defense that he did not know the car was stolen when he acquired possession of such vehicle because his judgment and perceptions were impaired. Necessarily, if defendant argues that he was truly intoxicated when he made the challenged statement that he was intoxicated, then it is illogical for defendant to argue that he was conscious and capable of understanding what was said. If, on the other hand, defendant argues he was not intoxicated in order to utilize the declaration against interest exception, then defendant loses the argument that his judgment and perceptions were impaired. Under the facts shown here, defendant fails the objective reasonable person test included in the statute. Passing this test closely parallels the necessity of a showing of trustworthiness by the declarant. Generally speaking, if a statement seems against the interest of the declarant, but upon a subsequent offer of proof of attending circumstances works to the declarant’s advantage in other ways, such reduces the declarant’s trustworthiness. Dombroff, Trial Hearsay: Objections and Exceptions, p. 206.1 (1994). Further, if a declarant has no good reason to believe that the assertion will bring harm, or believes the assertion is more likely to cause benefit rather than harm, such assertion will not be excepted from the hearsay rule. Binder, Hearsay Handbook, p. 527 (3d ed. 1991). For instance, often a person will make an assertion admitting involvement in a lesser crime in order to deny involvement in a more serious crime. Such an assertion is not against declarant’s penal interests. U.S. v. Edwards, 994 F.2d 417, 425 (8th Cir. 1993). In Edwards, when police discovered a large amount of cash in a codefendant’s house, Edwards stated that he made private loans to other people, thus implying that he was involved in illegal loan sharking, rather than drug trafficking. The Edwards court held that under Fed. R. Evid. 804(b)(3) a reasonable person could have made the statement and such was clearly exculpatory as to the more serious drug charges. 994 F.2d at 425. Here, it is doubtful if defendant’s statement contained the required showing of trustworthiness. To help make this determination, a district court may consider the nature and character of the statement, the person to whom it was made, the relationship of the parties, the probable motivation of the declarant in making the statement, and the circumstances under which such statement was made. State v. Jones, 246 Kan. at 219. At issue here is whether defendant knew that claiming intoxication could impair his knowledge that the car was stolen when he obtained control over the vehicle. Examining defendant’s probable motivation in making the statement and the circumstances under which such statement was made demonstrate defendant’s lack of trustworthiness. Unfortunately, this court faces the obstacle in determining defendant’s motive for claiming intoxication after he invoked his Fifth Amendment rights. There are several plausible explanations for defendant’s probable motivation and circumstances that taint his trustworthiness. First, defendant’s statement could have been an attempt to excuse his actions in fleeing the police in a stolen car. Second, defendant could easily have been admitting to a misdemeanor DUI to try to avoid prosecution for felony theft. Third, under the circumstances at the time of his statement, defendant knew he had given no blood, breath, or urine tests for alcohol and had not been given a ticket for DUI Last, it is unlikely that emergency personnel would have allowed defendant to sign a refusal of medical treatment if he was incapable of understanding what he signed. Under the facts shown, defendant has not met the requirements of K.S.A. 60-460(j). The district court did not abuse its discretion in finding that defendant’s out-of-court statement was not a declaration against interest under K.S.A. 60-460(j). DUE PROCESS Finally, defendant contends his challenged statement is vital to his theory of defense and such exclusion violates his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Defendant argues that the district court’s ruling infringes upon his Fifth Amendment rights by forcing him to choose between exercising his privilege against self-incrimination and presenting his theory of defense. The State argues that if defendant is successful, he will be able to present his theory of defense in his own words without subjecting himself to cross-examination. An exercise of discretion which results in an error of constitutional magnitude is serious and may not be held to be harmless unless this court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before a court may declare the error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the rest of the trial. Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 (1993). Where evidence of guilt is of such direct and overwhelming nature that it can be said that the erroneous admission of certain evidence could not have affected the result of the trial, such admission is harmless error. State v. Juarez, 19 Kan. App. 2d 37, 41, 861 P.2d 1382 (1993) (quoting State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 [1976]). The exclusion of evidence, which is an integral part of the theory of defense, violates the defendant’s fundamental right to a fair trial. State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 (1978). New rights are more fundamental than that of an accused to present witnesses in his own defense. State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 [1973]). However, the right to present a defense is subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Thomas, 252 Kan. at 573. There is overwhelming evidence against defendant. The stolen car had an out-of-state license plate, a broken wing window, no keys in the ignition, a broken steering column, and an open glove box with the contents strewn about the car, Officer Cosgrove testified defendant was the only occupant in the car after a high-speed chase with the police and that defendant was coherent and functioning properly at the time of the arrest. Furthermore, emer gency personnel determined defendant was conscious and coherent enough to have him sign a refusal of medical treatment form. And importantly, the only evidence before the jury of defendant’s intoxication was Cosgrove’s statement that defendant had an odor of alcohol on his breath, but such odor was not enough to warrant a DUI investigation. In light of the overwhelming evidence against defendant, we conclude that even if the court erred by refusing admission of defendant’s out-of-court statement, such error was harmless beyond a reasonable doubt. Affirmed.
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Rulon, J.: Isaac Horn, defendant, appeals his conviction of one count of aggravated sexual battery, K.S.A. 1994 Supp. 21-3518, a severity level 5, person felony. Specifically, defendant claims the district court did not have jurisdiction to convict or sentence him because he was charged with aggravated criminal sodomy, and aggravated sexual battery is not a lesser included offense of the crime charged. We reverse and remand with directions. The facts of this case are not in dispute. After spending the evening out drinking, the victim, D.R., invited defendant to her apartment. The victim and defendant eventually engaged in sexual intercourse. During this sexual encounter the victim claimed defendant forced her to have anal intercourse. The victim then sought medical attention and later notified the police. Defendant was charged with one count of aggravated criminal sodomy in violation of K.S.A. 1994 Supp. 21-3506(a)(3). At trial, the jury was properly instructed as to the elements of the original charge of aggravated criminal sodomy. Additionally, both the State and the defendant requested the court to instruct the jury on a perceived lesser included offense of aggravated sexual battery. The court so instructed the jury. Eventually, the jury found the defendant guilty of the charge of aggravated sexual battery. This appeal followed. JURISDICTION Defendant argues that because aggravated sexual battery is not a lesser included offense of aggravated criminal sodomy,, the district court did not have jurisdiction to convict and sentence him for aggravated sexual battery. The parties agree that the question of whether aggravated sexual battery is a lesser included offense of aggravated criminal sodomy is a question of law and thus this court’s scope of review is unlimited. See State v. Mendenhall, 18 Kan. App. 2d 380, 381, 855 P.2d 975, rev. denied 253 Kan. 862 (1993). “In determining whether a lesser crime is a lesser included offense under K.S.A. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 21-3107(2)(d) if the factual allegations of the charging documentand the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime. State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988).” State v. Berberich, 248 Kan. 854, 857, 811 P.2d 1192 (1991). Defendant was charged with aggravated criminal sodomy pursuant to K.S.A. 1994 Supp. 21-3506(a)(3), which is defined in relevant part as: “[S]odomy with a person who does not consent to the sodomy or causing a person, without the person’s consent, to engage in sodomy with any person or an animal, under any of the following circumstances: (A) When the victim is overcome by force or fear.” Aggravated sexual battery is defined in relevant part as: “(a) Aggravated sexual battery is the intentional touching of the person of another who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another under any of the following circumstances: (1) The victim is overcome by force or fear.” K.S.A. 1994 Supp. 21-3518. Clearly, aggravated sexual battery contains different elements than aggravated criminal sodomy. To prove aggravated sexual battery the prosecution is required to show that the victim was over 16 years of age and that the intentional touching was done with the intent to arouse or satisfy the sexual desires of the offender. These two elements are not required to prove aggravated criminal sodomy. Consequently, aggravated sexual battery is not a lesser included offense of aggravated criminal sodomy pursuant to the identity of the elements test. According to the second prong of the Fike analysis, “ ‘a lesser crime may become a lesser included offense of a greater offense if the information actually alleges a lesser crime and the evidence which must be established to prove the crime charged also proves the lesser crime/ ” (Emphasis deleted.) State v. Dixon, 248 Kan. 776, 784, 811 P.2d 1153 (1991). “[T]he test is not what the State may prove, but what the State is required to prove.” (Emphasis in original.) State v. Rush, 255 Kan. 672, 677, 877 P.2d 386 (1994). The charging document in the instant case reads in relevant part: “[0]n or about the 25th day of August, 1993, and within two years of the filing of this action, in said County of Sumner, and State of Kansas, one — ISAAC D. HORN — did then and there unlawfully, willfully, and feloniously: . . . engage in the act of sodomy by anal intercourse with a person, to-wit: [D.R.]; who did not consent to said sodomy and was overcome by force or fear.” Pursuant to the charging document here, the State was only required to prove that defendant engaged in the act of sodomy with D.R., who did not consent, and who was overcome by force or fear. The State was not required to show that the victim was over 16 years of age, nor was it required to show that the touching was done with the intent of arousing or satisfying the sexual desires of defendant. Therefore, in this case, aggravated sexual battery was not a lesser included offense of aggravated criminal sodomy under the second prong of the Fike test. The charging document is the jurisdictional instrument which gives the court authority to convict a defendant of crimes charged in the complaint or of the lesser included crimes thereof. Conversely, if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented. See State v. Chatmon, 234 Kan. 197, 204-05, 671 P.2d 531 (1983). A conviction based upon a charge not made in the information and not properly before the district court is a clear violation of due process under the Fourteenth Amendment to the Constitution of the United States. “In a criminal action the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction of the question which its judgment assumes to decide.” 234 Kan. at 205. The State argues our Supreme Court’s holding in Chatmon is no longer valid since the court’s decision in Fike, but it cites no authority for this contention. Absent an indication our Supreme Court has departed from its prior ruling, this court is duty bound to follow the precedent established by the Kansas Supreme Court. Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 391, 836 P.2d 1222 (1992). Based on the facts shown here, and under the provisions of K.S.A. 21-3107(2)(d) as adopted by the Kansas Legislature and interpreted by our Supreme Court, we must conclude aggravated sexual battery is not a lesser included offense of aggravated criminal sodomy. Consequently, because the State did not charge defendant with the crime of aggravated sexual batteiy, the district court lacked jurisdiction to convict or sentence defendant for the crime of conviction. We note the State relies upon this court’s decision in State v. Patterson, 12 Kan. App. 2d 731, 754 P.2d 1207 (1988), disapproved in part State v. Gibson, 246 Kan. 298, 787 P.2d 1176 (1990), as authority for the contention that the district court did have the required jurisdiction. In Patterson, the defendant challenged the district court’s jurisdiction to convict him of aggravated sexual battery as a lesser included crime of rape. This court concluded that aggravated sexual battery was a “lesser degree of the same crime” as rape. We held the crimes of rape and aggravated sexual battery were explicitly embraced within the definition of “unlawful sexual act” under K.S.A. 1987 Supp. 21-3501(4) and, therefore, aggravated sexual battery was a lesser degree of an “unlawful sexual act.” 12 Kan. App. 2d at 733. However, in Gibson, our Supreme Court disapproved of this court’s analysis which concluded that in defining an unlawful sex act the legislature had created a generic “same crime” which included rape and aggravated sexual battery. The Gibson court went on to hold that aggravated sexual battery was not a lesser degree of the crime of rape. 246 Kan. at 302. THE INSTRUCTION Defendant acknowledges that he requested the lesser included offense instruction given at trial. The law in Kansas is well settled that: “[n]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Deavers, 252 Kan. 149, 164-65, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 276 (1993). Following Deavers, because defendant requested that the instruction be given, he cannot challenge the giving of the instruction on appeal unless it was clearly erroneous. Also, “[a] litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989). However, this rule cannot be used as a pretext for the violation of a defendant’s constitutional rights where there is no justification for so doing. State v. Higgins, 243 Kan. 48, 51, 755 P.2d 12 (1988). Because we concluded earlier in this opinion that the district court did not have jurisdiction to convict or sentence defendant for aggravated sexual battery, the giving of the lesser included instruction was clearly erroneous. See State v. Chatman, 234 Kan. at 204-05. The appellate courts of this State each year hear numerous appeals based upon the “silent error” of failure of the trial court to instruct on lesser included offenses. This “silent error” occurs each time a jury is instructed on the elements of crimes charged by the State and no one objects to the trial court’s instructions. Much worse is the case before us, where the defendant even requests that an erroneous instruction be given and the court obliges. Common sense tells us some remedy is needed. We believe most of the dense legal fog which shrouds claims of trial court errors based upon claims of failure to instruct on lesser included crimes would diminish if our legislature would promulgate a statutory list of lesser included crimes for each felony crime found in our criminal code. We reverse and remand the cause with instructions that defendant’s conviction and sentence be vacated.
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Royse, J.: Sally Pokomy, as guardian ad litem for Viola Dill, entered into a family settlement agreement with Mary Wise (Wise) to divide the estate of Frank E. Wise, deceased. Wise filed a motion asking the district court to approve the family settlement agreement but the court refused. Wise appeals, arguing the district court erred (1) in concluding the executor had standing to object to the agreement and (2) in holding that the guardian ad litem lacked authority to enter into a family settlement agreement. The parties have stipulated to the facts. Frank E. Wise executed his will in 1984. He left his entire estate to his wife, Annaleise Wise. The will provided that if Annaleise predeceased Frank, then the entire estate would go to Viola Dill, Frank’s mother-in-law. The will named Viola’s son, Kenneth Dill, as executor of the estate if Annaleise predeceased Frank. Annaleise died in 1985. Frank and Mary Wise were married in 1987. Frank did not revise his will before he died in 1992. Kenneth Dill filed a petition for probate of the will and asked to be appointed executor. The district court granted those requests. Pursuant to the executor’s motion, the district court declared Viola Dill to be an “incapacitated person” and appointed Pokomy to serve as her guardian ad litem. Wise filed an election to take by intestate succession. Wise and Pokomy, as guardian ad litem for Viola Dill, entered ♦into a Family Settlement Agreement (Agreement). Wise agreed to give up her claimed interest in certain IRA accounts, and, in return, Viola Dill would give up her claim to a one-half interest in the homestead. Wise filed a motion, asking the district court to approve the Agreement as fair and equitable. Pokomy, as guardian ad litem for Viola Dill, joined in the motion. Kenneth Dill, as executor, filed a brief opposing the Agreement. Based on the briefs submitted by the parties, the district court ruled (1) Kenneth Dill, as executor, had standing to object to the Agreement and (2) Pokomy, as guardian ad litem, did not have the authority to enter into a family settlement agreement for Viola Dill. The district court concluded that it did not need to determine whether the Agreement was fair. Before examining the issues on appeal, we note that family settlement agreements are “favorites of the law.” The mutual promises of the contracting parties provide sufficient consideration for the agreement. In re Estate of Harper, 202 Kan. 150, Syl. ¶ 4, 446 P.2d 738 (1968). To be valid, a family settlement agreement must be in writing and acknowledged and approved by “all heirs, devisees and legatees, and all other interested or affected persons, all of whom must be competent or authorized to enter into such agreement.” K.S.A. 59-102(8). A family settlement agreement must be submitted to and approved by the district court in order to obtain a decree of final settlement and an assignment of the real estate in accord with its provisions. K.S.A. 59-2249; Brent v. McDonald, 180 Kan. 142, 152, 300 P.2d 396 (1956). The first issue on appeal is whether Kenneth Dill, as executor, had standing to object to the Agreement. The district court decided this issue as a matter of law, based on stipulated facts. Appellate review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Standing is a question of whether a party has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of jurisdiction and to justify exercise of the court's remedial powers on his behalf. Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 (1987). “Standing to sue” means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, 629, 802 P.2d 1231 (1990); cf. State v. Wickliffe, 16 Kan. App. 2d 424, 429, 826 P.2d 522 (1992) (standing to challenge the validity of a search limited to those whose own Fourth Amendment rights have been violated). Kenneth Dill does not claim that he has a stake, either personally or as executor, in the outcome of the controversy. He does not claim that he possesses any interest that will be affected by the district court’s decision to approve or disapprove the Agreement. Instead, Kenneth Dill relies on a standing-by-necessity argument. He reasons that, as executor, he is a personal representative of all the heirs, devisees, legatees, and creditors, and he therefore has a duty to protect Viola Dill’s interests. He contends there was no other person to protect Viola Dill’s interests. This argument is not persuasive. One problem with Kenneth Dill’s argument is that his premise is incorrect. Kansas appellate decisions have emphasized that an executor’s duty is not to represent any individual who may be interested in the estate, but to act in the best interests of the estate. See In re Estate of Lohse v. Rubow, 207 Kan. 36, 40, 483 P.2d 1048 (1971). An executor’s duty is to the estate, not to the heirs or legatees of the estate. In re Tax Appeal of Estate of Kerschen, 13 Kan. App. 2d 370, Syl. ¶ 4, 771 P.2d 74 (1989); see In re Estate of Stahl, 226 Kan. 48, 54, 596 P.2d 121 (1979). An examination of the circumstances of this case reveals why Kenneth Dill’s premise is unworkable. While claiming to represent the interests of Viola Dill, a devisee, the executor has opposed the claimed interests of Wise, an heir. Kenneth Dill’s position, which preferred one interested party over another, is not consistent with his claim that he is a personal representative of all persons who have an interest in the estate. The Kansas Supreme Court has previously ruled that an executor may not take sides in a dispute regarding distribution of an estate. The case of In re Estate of Benso, 165 Kan. 709, 710, 199 P.2d 523 (1948), involved a controversy between the widow of the decedent and his children by a former marriage. The children claimed that an antenuptial agreement limited the property the widow could receive from the estate. The widow claimed the antenuptial agreement had been destroyed, and she was entitled to receive a one-half interest in the estate. The executor filed an answer, claiming the antenuptial agreement was in effect and should control the distribution of the estate. When the district court ruled in favor of the widow, the executor filed an appeal. The widow filed a motion to dismiss the executor’s appeal, which the Supreme Court granted. The court observed that by filing the answer in the lower court, the executor “took one side of a controversy that concerned him not at all.” 165 Kan. at 711. The court quoted from 2 Am. Jur., Appeal and Error § 183, pp. 960-61: “ ‘An executor or administrator, as such, is not, however, aggrieved or prejudiced by a decree or judgment as to the rights of the beneficiaries, and therefore, cannot appeal from a decree affecting their interests. In accordance with this rule, it is held that an administrator is not entitled to appeal from a decree of distribution.’ ” 165 Kan. at 711. Applying that general rule, the court concluded: “The administrator’s statement in his final report of the respective claims of the parties was proper. It was improper for him later to take sides. He is not concerned with the contest between heirs which they litigate at their own expense and on their own behalf. His appeal, therefore, is dismissed.” 165 Kan. at 711. See In re Waterman, 212 Kan. 826, 834, 512 P.2d 466 (1973). Under the rule adopted in Benso, an executor cannot become an advocate for one side in a controversy over distribution of an estate. If that is true, then an executor cannot assume the role of an advocate to initiate such a controversy. The case of In re Estate of Harper, 202 Kan. 150, is instructive, even though it arose out of a somewhat different procedural setting. In Harper, the heirs objected to admission of the will to probate on the grounds that all parties interested in the estate had already entered into a family settlement agreement. One of the executor’s responses to that objection was to contend the family settlement agreement was ineffective because it was not signed by the executor. The court rejected the executor’s contention, holding that an effective family settlement agreement does not require an executor’s approval: ‘We note the appellee’s contention that it was an interested party in the estate and since it did not sign the Harper family settlement agreements to withhold the will from probate, the agreement was ineffective and was not binding upon the executor named in the will. The point is not well taken. The nomination of an executor is a part of the decedent’s will. [Citation omitted.] Unlike an heir at law, a devisee, a legatee, or a creditor of the decedent, the [executor] had no pecuniary interest in the distribution of the estate of which it was deprived by the family settlement agreement. The fact that it was nominated as executor and had the right and duty to petition for probate of the will, and would be compensated when appointed, gave it no such pecuniary interest. Its interest in the estate after appointment as executor, aside from its duty to faithfully serve as such fiduciary, was for reasonable compensation only in return for services rendered. [Citation omitted.]” 202 Kan. at 160-61. The Harper decision, then, indicates that an executor has no stake in the distribution of the estate and thus has no stake in the existence or content of a family settlement agreement. Kenneth Dill’s contention that he is the only person to protect Viola Dill’s interests is wrong. That contention ignores the fact that he had sought and obtained the appointment of a guardian ad litem for Viola Dill. The district court order appointing Pokomy as guardian ad litem directed her to “represent and defend” Viola Dill throughout administration of the estate. That contention also ignores the fact that every family settlement agreement must be submitted to and approved by the district court. Harper, 202 Kan. at 160; Brent, 180 Kan. at 152; In re Estate of Hinshaw, 164 Kan. 550, 561, 190 P.2d 386 (1948). In summary, Kenneth Dill, as executor, did not have an interest in the Agreement. Moreover, nothing in this case requires adoption of his standing-by-necessity theory. The district court, therefore, erred in concluding that Kenneth Dill had standing to object to the Agreement. The second issue on appeal is whether a guardian ad litem may enter into a family settlement agreement. This issue is one of first impression. The probate code authorizes the district court to “appoint a guardian ad litem in any probate proceeding to represent and defend a party thereto under legal disability.” K.S.A. 59-2205. In this case, the district court reasoned that authority to “represent and defend” is not authority to enter into contracts. The district court’s interpretation of a statute is a conclusion of law subject to unlimited review on appeal. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Commentators who have examined K.S.A. 59-2205 describe the duties of a guardian ad litem in broad terms. One authority noted that a guardian ad litem “acquires no right to the property or any duty except to legally protect the minor or incompetent’s interest in the proceeding in which he is appointed.” 2 Moreau, Volz & Thomas, Kansas Practice Methods: Guardianship § 1153 (1957). Another writer detailed the nature of a guardian ad litem’s duties: “When a guardian ad litem is appointed, he has duties to perform and they are not perfunctory duties. He should examine the file or otherwise acquaint himself with the situation, and, without being unduly contentious, he should do whatever may be necessary or proper to protect the rights and interests of his ward. He should be as careful as the court from which he receives his appointment not to do anything, or allow anything to be done, to the prejudice of his ward’s rights and interests. It is the duty of the court to see that such rights and interests are protected, and this is one method the law affords to assist the court in the performance of this duty.” 3 Bartlett’s Kansas Probate Law and Practice § 1173 (rev. ed. 1953). We note that Bartlett’s 1964 supplement includes a citation to Hodges v. Phoenix Mutual Life Ins. Co., 174 Kan. 282, 288, 255 P.2d 627 (1953), for the proposition that a guardian ad litem should take such steps as will call the court’s attention to the circumstances then existing to the end that the ward’s rights will be protected. Finally, “Ballantine’s law dictionary defines a guardian ad litem to be a person appointed by a court to look after the interests of an infant when his properly is involved in litigation.” In re Estate of Kruckenberg, 171 Kan. 450, 456, 233 P.2d 472 (1951). Kenneth Dill has not presented any justification for excluding from the scope of a guardian ad litem’s authority the pursuit of a settlement beneficial to the ward. Recognizing that family settlement agreements are “favorites of the law,” Harper, 202 Kan. 150, Syl. ¶ 4, it seems illogical to deprive an incompetent person of the benefit of such an agreement. See, e.g., Muenzenmayer v. Luke, 161 Kan. 597, 170 P.2d 637 (1946) (settlement recommended by guardian ad litem to resolve action to cancel contract approved as fair, equitable, and in the best interests of the ward). We also consider pertinent our recent holding that an attorney’s duty to exercise reasonable care and diligence in the handling of cases he undertakes may, under the facts of a particular case, include the duty to pursue a settlement. McConwell v. FMG of Kansas City, Inc., 18 Kan. App. 2d 839, 847, 861 P.2d 830 (1993), rev. denied 254 Kan. 1007 (1994). No justification has been offered for us to conclude that different duties would apply to an attorney who serves as a guardian ad litem. Kenneth Dill’s argument that a guardian ad litem should not be allowed to bind a ward misses the point. Pokomy never purported to bind Viola Dill to the Agreement. Instead, she joined with Mary Wise in seeking court approval of the Agreement, just as she was required to do. Harper, 202 Kan at 160. See also Miotk v. Rudy, 4 Kan. App. 2d 296, 301, 605 P.2d 587, rev. denied 227 Kan. 927 (1980) (an attorney does not acquire the implied authority to compromise and settle a client’s case merely by being employed). On appeal, both parties cite In re Estate of Kruckenberg, 171 Kan. 450. In that case, the court appointed a guardian ad litem to represent minor children in the administration of an estate. The guardian ad litem then joined with the executor in bringing an action to quiet title in the district court. The Supreme Court held the guardian ad litem appointed by the probate court had no authority to join as a plaintiff in a separate and distinct action in the district court. 171 Kan. at 457. Kenneth Dill admits that Kruckenberg is not on point. He nonetheless argues that if a guardian ad litem cannot file a petition, then it can reasonably be assumed that a guardian ad litem cannot pursue a family settlement agreement. His assumption ignores the rationale for the Kruckenberg holding. In Kruckenberg, the Supreme Court examined G.S. 1949, 59-2205 (now K.S.A. 59-2205) and G.S. 1949, 60-406 (now K.S.A. 60-217[c]). Those statutes stated that an action on behalf of a minor must be brought by his guardian or next friend. Those statutes did not then authorize such an action to be brought by guardians ad litem. In addition, 59-2205 authorized the appointment of a guardian ad litem in any proceeding in the probate court. The Supreme Court found that there was no provision in the probate code that gave the probate court authority to appoint a guardian ad litem for the purpose of maintaining an action in the district court. In short, the Kruckenberg decision relies on the fact that there was no statutory authorization for a guardian ad litem to pursue a separate proceeding. In contrast, this case does not involve a separate, independent lawsuit; we are concerned here with the guardian ad litem’s role in the probate proceeding. Kruckenberg does not purport to limit a guardian ad litem in the representation of a ward in a probate proceeding. In light of the fact that minors and incapacitated persons are treated similarly as persons under legal disability, see K.S.A. 60-217(c) and K.S.A. 60-508(a), it is instructive to examine the rules regarding settlements in cases involving minors. In probate cases involving minors, the courts use guardians ad litem to protect the minors’ interests in family settlement agreements: “If a family settlement is to be binding on minors, the parties must apply for court approval. The court will appoint a guardian ad litem to represent the minors and must be satisfied that their interests are promoted by the settlement. “It has been said that where the court is satisfied that the contract promotes and secures the rights of the minor, it is not only the right but the duty of the court to uphold and enforce the settlement, especially where it settles a family dispute.” 31 Am. Jur. 2d, Executors and Administrators § 84, p. 80. The Kansas Supreme Court, in Railway Co. v. Lasca, 79 Kan. 311, 99 Pac. 616 (1909), long ago adopted similar requirements for the settlement of a minor’s tort claim. When the minor plaintiff was 18 months old, his hands were run over by the wheel of a railroad car, resulting in severe injuries. His parents settled his claim against the railway company for $100, and the settlement was approved by the district court. Later, a second suit was brought to set aside the judgment that had been entered on the basis of the settlement. The district court ordered the judgment set aside, and the Supreme Court affirmed: “A parent has no implied authority to compromise or settle a minor’s cause of action. [Citation omitted.] Nor has a parent authority to consent that a judgment be rendered against his infant child, and when admitted to prosecute or defend as a next friend or guardian ad litem he can not by admissions or stip ulations surrender the substantial rights of the infant. [Citation omitted.] The next friend, being entrusted with the rights of the infant so far as they are involved in the cause, and acting under responsibility to the court and to the infant, may negotiate for a fair adjustment of the controversy. [Citation omitted.] He may not, however, bind the infant by such settlement; it can only become effective when given due judicial sanction [citation omitted], and this must be upon a real and not a perfunctory hearing.” 79 Kan. at 316-17. The Supreme Court in Railway Co. concluded the district court initially approved the settlement agreement simply because the parents had consented to the agreement and were satisfied with it. The district court, however, had not “judicially examine[d] the facts to determine whether the agreement was reasonable and proper.” The district court’s duty to protect the interests of the minor required that it determine whether the agreement was in the child’s best interests. 79 Kan. at 318. The rules adopted in Railway Co. were recently cited with approval in Childs v. Williams, 243 Kan. 441, 757 P.2d 302 (1988). These authorities indicate a guardian ad litem may enter into a settlement agreement on behalf of a minor child, subject to court approval. There is no reason to apply a different rule in the case of a guardian ad litem for an incapacitated person. Pokomy, as guardian ad litem, properly entered into the Agreement on behalf of Viola Dill and submitted the Agreement for court approval. The district court erred in holding that the Agreement was void. On appeal, Kenneth Dill urges that Viola Dill was found by the district court to be incapacitated but that she was not incompetent. This argument ignores the fact that the district court found Viola Dill to be both incapacitated and incompetent. The parties have urged this court to decide the fairness question. Whether the Agreement was fair to the parties at the time it was submitted to the district court, and whether it promoted and secured the rights of Viola Dill, are questions of fact. These are matters for the district court to decide in the first instance, not an appellate court. See Bartlett & Co., Grain v. Curry, 1 Kan. App. 2d 242, 249, 563 P.2d 1096 (1977). The decision of the district court is reversed, and the case is remanded for further proceedings in accord with this opinion. Reversed and remanded.
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Larson, J.: Crescent Oil Company (Crescent), a gasoline retailer, appeals a trial court order that pollution exclusions contained in commercial general liability and umbrella insurance policies issued by Federated Mutual Insurance Company (Federated) properly excluded coverage for property damage caused by gasoline leaking from a Crescent storage tank. The Washburn & Sons Amoco gas station and convenience store in Chanute, Kansas, is owned by Crescent and leased to Robert Washburn. Gasoline from the underground storage tanks located on the property leaked into the basement of a building on the adjoining property. Crescent and Washburn have been named defendants in the civil case seeking damages. That lawsuit seeks recovery under theories of negligence, strict liability, and negligence per se. Testing revealed that gasoline leaked from one of the lines running from the underground storage tanks. During the time of the leak, Federated provided a Commercial General Liability policy to Crescent, which included a products- completed operations hazard endorsement and an absolute pollution exclusion. Federated also provides Crescent with umbrella liability coverage on substantially the same terms. Federated refused to defend Crescent on the damage claim based on the absolute pollution exclusion. Crescent brought this declaratory judgment action to determine Federated’s duties with respect to the claim. In granting summary judgment to Federated, the trial court held coverage did not exist because of the pollution exclusion. Crescent appeals, contending Federated is bound by its policies to provide coverage for property damage to third parties caused by Crescent’s petroleum product leaking from its storage tanks. Resolving this appeal requires our interpretation of the coverage and exclusion provisions of Federated’s Commercial General Liability insurance policy. “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.” Spivey v. Safeco Ins. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993). Crescent argues that under the policy, leaking gasoline is not a pollutant, the insurance contract provides coverage for the alleged gasoline leak by virtue of its “Products completed operations hazard,” and the pollution exclusion does not remove from coverage damage claims made by third parties where the damage is caused by the insured’s product. The absolute pollution exclusion contained in both policies issued by Federated provided the insurance policy would not cover: “f. (1) ‘Bodily injury’ or ‘property damage’ which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, release or escape of pollutants at any time. “(2) Any loss, cost or expense arising out of any request, demand or order that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants.” “In Kansas, the general rule is that exceptions, limitations, and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, Syl. ¶ 2, 840 P.2d 456 (1992). We first consider if, under the policy, gasoline leaking from an underground storage tank is a “pollutant.” Where the language of a contract is clear, we must enforce the terms as written and not look for meanings that do not appear on the instrument’s face. See Bell v. Patrons Mut. Ins. Ass’n, 15 Kan. App. 2d 791, 794, 816 P.2d 407, rev. denied 249 Kan. 775 (1991). The insurance policy provides its own definition of pollutants: “Pollutants means one or more solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.” Terms within an insurance contract are to be given their plain, ordinary and popular meanings where the policy is clear and unambiguous. E.g., American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, Syl. ¶ 2, 658 P.2d 1015 (1983). Farm Bur. Mut. Ins. Co. v. Laudick, 18 Kan. App. 2d 782, 784, 859 P.2d 410, rev. denied 253 Kan. 857 (1993). According to Black’s Law Dictionary 318 (6th ed. 1990), “contamination” is a “[c]ondition of impurity resulting from mixture or contact with foreign substance.” While the gasoline was segregated in a storage tank, or pumped into a gas tank, the liquid was not a contaminant, Action Auto Stores, Inc. v. United Capital Ins. Co., 845 F. Supp. 428, 438-39 (W.D. Mich. 1993) (gasoline in a storage tank is not a pollutant); once it escapes into another medium such as a neighbor’s basement, it would become a contaminant and thus a pollutant under the policy. Despite the clear logic of such a holding, Crescent maintains that gasoline is not a contaminant and its leaking is not a pollutant. Crescent argues that the word contaminant “is not to be interpreted quite so literally.” Crescent points to cases holding that sewage, U.S. Fidelity & Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985), and asbestos fibers, Continental Cas. Co. v. Rapid, 177 App. Div. 2d 61, 581 N.Y.S.2d 669 (1992), are not pollutants and to cases supporting the broad principle that pollution clauses are intended to exclude liability for environmental damage, Westchester Fire Ins. Co. v. City of Pittsburg, Kan., 768 F. Supp. 1463, 1468-69 (D. Kan. 1991), or only exclude knowing emissions of pollutants over an extended period of time, Thompson v. Temple, 580 So. 2d 1133 (La. App. 1991). Cases in some jurisdictions may have limited the scope of the definition of pollutant under the exclusion in a number of ways, but we are not constrained to do so. Gasoline escaping from its place of confinement is clearly a pollutant, even though the United States District Court for Kansas limited the concept as follows: “In other words, a pollutant’ is not merely any substance that may cause harm to the ‘egg shell plaintiff,’ but rather it is a toxic or particularly harmful material which is recognized as such in industry or by governmental regulators.” Westchester Fire, 768 F. Supp. at 1470. We hold that seeping gasoline qualifies as a pollutant. Even if we were to accept the restriction imposed by Westchester Fire, gasoline is regulated by a number of environmental laws. E.g., K.S.A. 65-34,100 et seq. Crescent asks us to apply the holding of Thompson v. Temple, which limited the scope of what “pollution” is covered by the pollution exclusion. The Thompson court determined that the exclusion applied to “active industrial polluters, when businesses knowingly emitted pollutants over extended periods of time.” 580 So. 2d at 1134. However, Thompson was based on a Louisiana rule of interpretation, unlike ours in Kansas, which rejects the common meaning of the terms as a basis for determining whether an instrument is clear and instead immediately considers extrinsic evidence of the parties’ intent. 580 So. 2d at 1135. Thus, the court looked at the original purpose of the insurance industry in creating the exclusion. In Kansas, we look to the wording of the policy and apply it as it is clearly written. New York reached results similar to Louisiana in Continental Cas. Co. v. Rapid, 177 App. Div. 2d 61. New York rejected an approach which looked to the common meaning of the words of the exclusion and instead looked at the history of the exclusion in New York to attempt to determine what insurers intended for it to do. According to that court: “In the context of the exclusion clause we hold that as limited by ‘industry related activities’, its reach extends to environmental pollution occasioned by intentional discharge of a pollutant in the course of manufacturing or distribution activities by the producer of a product, but does not embrace the harm inflicted by a product fully and finally launched into the stream of commerce, and over which the manufacturer no longer exercises any control.” 177 App. Div. 2d at 69. Crescent argues that we should follow these decisions and hold that the pollution exclusion applies only to active intentional industrial pollution. Such an interpretation might be proper elsewhere, but in Kansas, the meaning of the clause must come from the language contained in the policy. In Kansas, the test to be applied in determining the intention of the parties is “ what a reasonable person in the position of the insured would understand it to mean.’ ” Crawford v. Prudential Ins. Co. of America, 245 Kan. 724, 729, 783 P.2d 900 (1989). 'Consequently, an unambiguous insurance policy will be enforced according to the plain and ordinary meaning of the words it uses. American Media Inc. v. Home Indemnity Co., 232 Kan. 737, Syl. ¶ 2. Ambiguity does not arise unless there is genuine uncertainty as to which of two or more possible meanings is proper. House v. American Fam. Mut. Ins. Co., 251 Kan. 419, 427, 837 P.2d 391 (1992). Where in common sense there is no ambiguity, the court should not strain to create ambiguity. Bell v. Patrons Mut. Ins. Ass’n, 15 Kan. App. 2d 791, Syl. ¶ 3. The Florida Supreme Court, following interpretive rules similar to ours, rejected arguments that the drafting history of the pollution exclusion clause made it ambiguous where no ambiguity arose from the language of the policy itself. Dimmitt Chevrolet v. Southeastern Fidelity, 636 So. 2d 700, 705 (Fla. 1993). This is not a case where the language permits multiple conflicting interpretations. We will not create ambiguity where none exists. Limiting the definition of pollution to intentional industrial pollution has no basis in the language of the policy. We hold the policy definition of “pollutants” includes gasoline which has escaped and caused contamination to neighboring property. Crescent also argues that the definition of “hazardous substance” found in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. (1988) should control. That definition explicitly excludes petroleum. 42 U.S.C. § 9601(14) (1988). At least one court has recently considered and rejected a similar argument. Smith v. Hughes Aircraft Co., 10 F.3d 1448, 1453 (9th Cir. 1993). It is the definition provided by the contract, not that within a federal statute not even mentioned by the contract, that evidences the intention of the parties. Moreover, even if the federal statutory scheme for controlling pollution were relevant, Crescent provides no persuasive reason why CERCLA’s definition should control rather than those of other acts which bring petroleum products within their provisions. See, e.g., Solid Waste Disposal Act, 42 U.S.C. §§ 6991-699li (1988); Water Pollution Prevention and Control Act, 33 U.S.C. §§ 1251-1387, 1414a (1988), Water Resources Planning Act (1988). Our conclusion that the pollution exclusion precludes coverage for leaks of petroleum products finds support in a number of cases from other jurisdictions. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118 (2d Cir. 1990); Guilford Industries, Inc. v. Liberty Mut. Ins. Co., 688 F. Supp. 792, 794 (D. Me. 1988), aff’d 879 F.2d 853 (1st Cir. 1989) (“the exclusion is clear and unambiguous”; oil fell within the definition of pollution as any liquid irritant or contaminant); Union Mut. Fire Ins. Co. v. Hatch, 835 F. Supp. 59, 65-66 (D.N.H. 1993) (policy language was clear and unambiguous and using the ordinary meanings of the words, gasoline leaking from underground storage tank was a pollutant); Vantage Dev. v. American Env. Tech., 251 N. J. Super. 516, 598 A.2d 948 (1991); American States Ins. Co. v. Skrobis, 182 Wis. 2d 445, 513 N.W.2d 695 (Ct. App. 1994) (pollution exclusion unambiguously precluded coverage of property damage arising from a diesel fuel spill). Our decision is consistent with the recent ruling of our court in Farm Bur. Mut. Ins. Co. v. Laudick, 18 Kan. App. 2d 782. Laudick was factually similar to our case in that it involved leaking petroleum products, but the decision there turned on the meaning of the word “sudden” as an exception to the application of a pollution exclusion clause. “Sudden” was given a temporal meaning combining both the elements of without notice or warning and quick or brief in time. Because the leakage in Laudick occurred over a long period of time, the exclusion was deemed to apply and preclude coverage, a result consistent with the one we reach herein. Just as courts have held that petroleum products are included as pollutants, they have also rejected the argument that to be excluded the insured must have polluted intentionally. See W.H. Breshears, Inc. v. Federated Mut. Ins. Co., 832 F. Supp. 288 (E.D. Cal. 1993) (damage from vandals’ release of stored gasoline unambiguously excluded); Vantage Dev. v. American Env. Tech, 251 N.J. Super. 516 (exclusion applied to oil spill caused by third party dumping). Crescent argues that even if leaking gasoline falls within the definition of pollution, excluding coverage puts too much weight on the exclusion clause and, read as a whole, the policy provides coverage. Crescent’s argument is threefold: (1) that the products-completed operations hazard covers gasoline as Crescent’s “product”; (2) that excluding coverage for Crescent’s gasoline “product” would reduce the product coverage to an absurdity; and (3) that the pollution exclusion only covers remediation and cleanup costs and not property damage to third persons. The policy’s products-completed operations coverage “includes all ‘bodily injury’ or ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’.” Crescent’s “product” was defined to include “any goods or products . . . sold, handled, distributed or disposed by . . . you.” Crescent contends that this language would cover property damages arising out of gasoline Crescent handles, sells, or distributes and that if this were limited by a literal interpretation of the pollution exclusion the clause would be rendered an absurdity. Therefore, Crescent maintains, harmonizing the policy’s provisions requires interpreting the pollution exclusion to apply only to cleanup and remediation damages, not to damages to third parties. Upon analysis of the cornerstone of this argument — that the products-completed operations coverage would be rendered an absurdity — cannot be sustained. The pollution exclusion clause excludes coverage for damages caused by “the actual, alleged or threatened discharge, dispersal, release or escape of pollutants,” and not damages that might occur in the regular use of such substance in the absence of a discharge, dispersal, release, or escape. Crescent’s petroleum product (gasoline), as we have previously held, is not a “pollutant” until introduced into an environment in which it does not belong, i.e., the soil. In fact, even though coverage for pollution is excluded, the record shows Federated paid claims arising out of the sale of allegedly tainted fuel. Furthermore, Crescent deals in products other than gasoline which the completed operations clause would cover. Properly analyzed, excluding leaking gasoline from the coverage of the policy does not lead to an absurd interpretation, but rather removes only a specific injury caused by a specific product: “Plaintiff also argues that the terms ‘contaminant,’ ‘irritant,’ and ‘chemicals,’ viewed broadly and in isolation, are meaningless. Such a construction cannot be sanctioned, it suggests, because any substance would meet the exclusion, eliminating insurance coverage in all situations. . . . Plaintiff is correct that almost any substance might fall within the exclusion, but it can only do so in certain very precisely drawn circumstances: if it is an irritant or contaminant. The provision is, therefore, far from all-inclusive or meaningless.” 688 F. Supp. at 794. (Emphasis added.). We are not alone in our determination that the products-completed operations clause does not cover hazards excluded by the pollution exclusion. See Park-Ohio Industries, Inc. v. Home Indem. Co., 975 F.2d 1215, 1223 (6th Cir. 1992). Moreover, and most importantly, the adjoining landowners do not raise product liability claims, but sue solely based on Crescent’s pollution. Nevertheless, the cases Crescent cites for the proposition that damages to third parties are not excluded by the pollution exclusion clause merit discussion. Crescent mistakenly relies on cases which reached the conclusion that the exclusion did not apply because there was no “pollution.” See Molton, Allen & Williams, Inc. v. St. Paul F. & M. Ins., 347 So. 2d 95 (Ala. 1977) (sand and dirt washing into lake); Minerva Enter., Inc. v. Bituminous Casualty Corp., 312 Ark. 128, 851 S.W.2d 403 (1993) (raw sewage backed up into trailer home); Atlantic Mutual Ins. Co. v. McFadden, 413 Mass. 90, 595 N.E.2d 762 (1992) (lead paint poi soning); West American Insurance Co. v. Tufco Flooring East, 104 N.C. App. 312, 409 S.E.2d 692 (1991) (fumes from floor cleaner ruined chicken parts). There is no support for the argument that the exclusion does not apply to damages suffered by third parties. In actuality, many courts have applied the pollution exclusion to claims of third parties. See Park-Ohio Industries, Inc. v. Home Indem. Co., 975 F.2d at 1215; Travelers Ins. v. Waltham Indus. Laboratories, 883 F.2d 1092 (1st Cir. 1989); Guilford Industries, Inc., 688 F. Supp. 792; American Motorists Ins. Co. v. General Host Corp., 667 F. Supp. 1423 (D. Kan. 1987); League of Minn. Cities Ins. v. Coon Rapids, 446 N.W.2d 419 (Minn. App. 1989). The clear language of the pollution exclusion excludes coverage for property damage caused by gasoline leaking from Crescent’s underground tanks. The products-completed operations provision does not require coverage in order to provide the coverage the insured should reasonably expect from die wording of the policy. Affirmed.
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Pierron, J.: Defendant pled guilty to one count of aggravated robbeiy and one count of simple robbeiy. He was subsequently sentenced to 77 months for the aggravated robbery and 34 months for the simple robbeiy. The trial court ordered the sentences to run consecutively. Defendant appeals his sentence, arguing the trial court abused its discretion by ordering the two sentences to be served consecutively. On July 26, 1993, defendant was charged with three counts of aggravated robbery. All three crimes occurred on or about July 20, 1993. On October 4, 1993, after plea negotiations, defendant pled guilty to one count of aggravated robbery and one count of simple robbeiy. The remaining aggravated robbeiy charge was dismissed. Pursuant to the negotiations, the State agreed not to oppose a concurrent sentence. Prior to defendant entering a plea at the hearing on October 4, 1993, the trial court explained to defendant that the State’s agreement not to oppose a concurrent sentence was not binding on the trial court. The court also informed defendant that aggravated robbery was a severity level 3 person felony. The court explained there was a presumption that defendant would be placed in prison for a minimum of 46 months and a maximum of 103 months on the aggravated robbeiy count. The court also explained that simple robbeiy was a severity level 5 person felony carrying a possible sentence ranging from 31 months’ to 68 months’ imprisonment. Defendant indicated he understood the possible sentence. After being informed of the possible sentence, the defendant entered a plea of guilty. The trial court accepted the plea and found him guilty of one count of aggravated robbery and one count of simple robbery. On December 2, 1993, the State filed a motion seeking an upward durational departure from the sentencing guidelines. Defendant responded, seeking an order that the State disclose the unusual and aggravating factors it relied on to support its motion for a durational departure. On December 20, 1993, defendant was sentenced. The trial court denied the State’s motion for an upward durational departure. The parties agreed that defendant had a category E criminal history. The trial court sentenced defendant to 77 months on the aggravated robbery count and 34 months on the simple robbery count. The sentences were ordered to run consecutively for a controlling sentence of 111 months. K.S.A. 1993 Supp. 21-4720(b) provides: “The sentencing judge shall have discretion to impose concurrent or consecutive sentences in multiple conviction cases.” According to defendant, the district court abused its discretion by ordering the sentences to run consecutively. Defendant argues the decision to impose consecutive sentences was an abuse of discretion because (1) the district court failed to provide a sufficient explanation of the reasons for its decision and (2) the reasons that were given by the district court for imposing consecutive sentences had already been implicitly considered by the legislature in arriving at the presumptive sentence. The State, on the other hand, argues this court is without jurisdiction to consider defendant’s appeal. In resolving this jurisdictional question, this court must interpret the provisions of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq. Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). On questions of law, our review is unlimited. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Defendant’s criminal history consisted of three prior juvenile adjudications for nonperson felonies. Thus, he had a category E criminal history. See K.S.A. 1993 Supp. 21-4709. Aggravated robbery is a severity level 3 person felony. K.S.A. 1993 Supp. 21-3427. Robbery is a severity level 5 person felony. K.S.A. 1993 Supp. 21-3426. K.S.A. 1993 Supp. 21-4720(b)(2) directs the trial court to “establish a base sentence for the primary crime” when sentencing a defendant in multiple conviction cases. The primary crime is the crime with the highest severity ranking. K.S.A. 1993 Supp. 21-4720(b)(2). Therefore, the aggravated robbery conviction would be the primary crime. The base sentence is set using the total criminal history score assigned. K.S.A. 1993 Supp. 21-4720(b)(3). According to K.S.A. 1993 Supp. 21-4704, the presumptive sentencing range for a severity level 3 crime with a category E criminal history score is 68 to 77 months (grid block 3-E). The presumptive disposition for crimes falling within grid block 3-E is presumptive imprisonment. The district court sentenced defendant to 77 months’ imprisonment for the aggravated robbery. “Nonbase sentences will not have criminal history scores applied.” K.S.A. 1993 Supp. 21-4720(b)(5); See State v. Bowen, 20 Kan. App. 2d 576, Syl. ¶ 3, 890 P.2d 374 (1995). Thus, the presumptive sentence for the simple robbery is 31 to 34 months, as reflected in grid block 5-1. K.S.A. 1993 Supp. 21-4704. Grid block 5-1 carries a presumptive disposition of imprisonment in this case due to K.S.A. 1993 Supp. 21-4720(b)(6), which provides: “If the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison.” Furthermore, a decision by the court regarding the imposition of a prison term for a crime classified in grid block 5-1 is not a departure and is not subject to appeal. K.S.A. 1993 Supp. 21-4704(f). The district court sentenced defendant to 34 months’ imprisonment for the simple robbery. K.S.A. 1993 Supp. 21-4703(r) defines the term “presumptive sentence” as “the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender’s criminal history.” A presumptive sentence includes both a presumptive duration and a presumptive disposition. See K.S.A. 1993 Supp. 21-4703(h), (j), and (r). The presumptive duration is also known as the “sentencing range,” which is defined as “the sentencing court’s discretionary range in imposing a nonappealable sentence.” K.S.A. 1993 Supp. 21-4703(t). According to these definitions, defendant’s sentences of 77 months’ imprisonment for the aggravated robbery and 34 months’ imprisonment for the simple robbery are within the presumptive sentences. In State v. Myers, 20 Kan. App. 2d 401, Syl. ¶ 1, 888 P.2d 866 (1995), this court held that “[a]ppellate courts are without jurisdiction to consider appeals from a sentence entered for a felony committed on or after July 1, 1993, where the imposed sentence is within the presumptive sentence for the crime. K.S.A. 1993 Supp. 21-4721(c)(l).” There is little, question that defendant could not have appealed either the 77-month sentence or the 34-month sentence imposed in this case because both were presumptive sentences. The question, however, is whether the trial court’s decision to impose the sentences consecutively is appealable. “It is a iundamental 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). See State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994). Generally, “[o]ur criminal statutes are to be construed strictly against the State.” State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993) (quoting State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 [1983]). However, this rule of construction is subordinate to the rule that judicial interpretation must effectuate legislative design and the true intent of the legislature. State v. Schlein, 253 Kan. 205, 215, 854 P.2d 296 (1993). K.S.A. 1993 Supp. 22-3602(a) provides for an appeal as a matter of right from any judgment against a defendant in the district court “[ejxcept as otherwise provided.” In Gonzales, 255 Kan. at 247, the Supreme Court noted that “appeal from the sentence imposed for felony offenses committed on or after July 1, 1993, is limited pursuant to K.S.A. 1993 Supp. 21-4721.” The relevant sections of K.S.A. 1993 Supp. 21-4721 provide: “(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court. “(e) In any appeal, the appellate court may review a claim that: (1) The sentence resulted from partiality, prejudice, oppression or corrupt motive; (2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or (3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.” In K.S.A. 1993 Supp. 21-4721(a) and (e), the legislature has endeavored to list the grounds upon which an appeal can be taken from a sentence imposed under the KSGA. “ ‘One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention.’ ” State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977) (quoting In re Olander, 213 Kan. 282, 285, 515 P.2d 1211 [1973]). Applying the maxim expressio unius est exclusio alterius leads to the conclusion that the legislature did not intend this court to entertain sentencing appeals on grounds other than those stated in K.S.A. 1993 Supp. 21-4721. Therefore, this court’s jurisdiction to consider an appeal challenging a sentence imposed pursuant to the KSGA is limited to those grounds specified in K.S.A. 1993 Supp. 21-4721(a) and (e) and illegal sentences. See also 1994 Kansas Sentencing Guidelines Desk Reference Manual, p. 6. (“The defendant may appeal a sentence which constitutes a departure unfavorable to the defendant. . . . Appellate review of sentences imposed pursuant to the guidelines is otherwise limited to claims of partiality, prejudice, oppression, or corrupt motive, or claims challenging the crime severity ranking or the criminal history.”); Gonzales, 255 Kan. at 247 (an illegal sentence can be corrected at any time). Whether the decision to impose consecutive sentences can be appealed depends on whether that decision was the result of one of the grounds specified in K.S.A. 1993 Supp. 21-4721. Defendant does not allege that the imposition of consecutive sentences was the result of partiality, prejudice, oppression, or corrupt motive. Nor does he maintain there was an error in the criminal histoiy score or the severity level of the current crimes of conviction. The grounds for appeal set forth in K.S.A. 1993 Supp. 21-4721(e) are not applicable in this case. Therefore, defendant can maintain this appeal only if imposing consecutive sentences constitutes a “departure sentence.” K.S.A. 1993 Supp. 21-4721(a). A departure is defined in K.S.A. 1993 Supp. 21-4703(g) as “a sentence which is inconsistent with the presumptive sentence for an offender.” There are two types of departure under the KSGA: a dispositional departure (see K.S.A. 1993 Supp. 21-4703[h]) and a durational departure (see K.S.A. 1993 Supp. 21-4703[j]). The term “presumptive sentence,” as that term is defined in K.S.A. 1993 Supp. 21-4703(r), contemplates a sentence which complies with the dispositional and durational mandates of the appropriate grid block. A grid block provides no mandate regarding whether a sentence should be run concurrently or consecutively. Therefore, a consecutive sentence is not in and of itself inconsistent with the presumptive sentence and is not a departure. Only if the sentence imposed is inconsistent with the duration and disposition of the appropriate grid block can there be a departure. See Kansas Sentencing Guidelines Act Implementation Manual, p. 4-17 (1992). (“In contrast to departure sentences, consecutive nondeparture sentences are not appealable.” [Emphasis in original.]). In this case, the sentence imposed is not inconsistent with the presumptive sentence and, therefore, is not a departure sentence as that term is used in K.S.A. 1993 Supp. 21-4721(a). Thus, defendant’s allegation that the district court abused its discretion by imposing consecutive sentences is not one of the grounds specified in K.S.A. 1993 Supp. 21-4721 for appealing a sentence. Simply put, the issue raised by defendant is not an appealable issue. In State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994), this court wrote that the provisions of K.S.A. 1993 Supp. 21-4721(c)(l) were “adopted by the legislature to foreclose the type of appeals which had previously been lodged under the former statutory scheme alleging that the sentencing court abused its discretion.” The holding in this case is consistent with the legislature’s intent to foreclose such appeals. We note that under certain circumstances a departure sentence can occur within the context of consecutive sentences, thereby creating a ground for appeal under K.S.A. 1993 Supp. 21-4721(a). See K.S.A. 1993 Supp. 21-4720(c); Kansas Sentencing Guidelines Act Implementation Manual, p. 4-17 (1992). However, we are not presented with that situation here. Appeal dismissed.
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Bacon, J.; Walter Binkley entered a plea of guilty to his third offense of driving while under the influence arising out of an incident that occurred on September 29, 1993. He appeals his sentence, arguing the trial court erred in imposing a one-year sentence pursuant to K.S.A. 1993 Supp. 8-1567(f) rather than sentencing him under the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq. K.S.A. 1993 Supp. 8-1567(f) provides that a third or subsequent conviction of driving while under the influence constitutes a severity level 9, nonperson felony, but also provides a sentence of not less than 90 days nor more than 1 year s imprisonment. Given Binkley s criminal history classification of H, the sentencing range under the guidelines for a 9-H felony is 6 to 8 months’ imprisonment with presumptive probation. See K.S.A. 1993 Supp. 21-4704(a). Binkley argues that the guidelines sentence controls because it is a later expression of legislative intent. The State responds that K.S.A. 1993 Supp. 8-1567(f) should control because it is the more specific statute. We note that this issue is not moot. A successful appeal here will affect the length of time Binkley will be on probation or the length of time he will serve if his probation is revoked. See State v. Gonzales, 255 Kan. 243, 244, 874 P.2d 612 (1994). Determining the proper sentencing statute for Binkley s crime requires statutory interpretation, which is a question of law. We are not bound by the decision of the district court on questions of law. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). As a basic rule of statutory construction, “’[w]hen 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 it appears the legislature intended to make the general act controlling.’ ” State v. Williams, 250 Kan. 730, 736, 829 P.2d 892 (1992) (quoting State v. Wilcox, 245 Kan. 76, Syl. ¶ 1, 775 P.2d 177 [1989]). A review of the statutes in question reveals that K.S.A. 1993 Supp. 8-1567(f) deals with those persons convicted of the specific crime of felony DUI while K.S.A. 1993 Supp. 21-4704(a) deals with all criminals convicted of nondrug felonies. For the crime of felony DUI, therefore, K.S.A. 1993 Supp. 8-1567(f) should control absent some indication that the legislature intended K.S.A. 1993 Supp. 21-4704(a) to control. Binkley argues that the legislature has expressed an indication that the more general statute should control by adding language to the DUI statute regarding the severity level of a third or subsequent conviction. We agree with the general rule of statutory construction cited by Binkley that where an irreconcilable conflict exists between statutes, the later enactment will be held to supersede, repeal, or supplant the earlier by implication. See Richards v. Etzen, 231 Kan. 704, 707, 647 P.2d 1331 (1982). The penalty provision of 90 days to 1 year’s imprisonment for a third or subsequent DUI offense was added in 1982, while the language denoting that offense a severity level 9, nonperson felony was added in 1993. According to the rule of construction cited by Binkley, the 1993 amendment would arguably supplant the prior penalty provision. Significantly, however, in the 1994 amendment to K.S.A. 8-1567(f), the legislature removed the language relating to the severity level of a third or subsequent DUI. Under the current amendment, therefore, the legislature has clearly expressed its intent that K.S.A. 8-1567(f) provides the appropriate sentence for a third or subsequent DUI conviction. See also K.S.A. 1994 Supp. 21-4704(i) (“The sentence for the violation of the felony provision of K.S.A. 8-1567 and amendments thereto shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 1994 Supp. 21-4707 and amendments thereto.”). Although the 1994 amendment cannot be applied retrospectively to Binkley’s crime, see State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991), we may look to the aggregate changes to the statute in 1993 and 1994 to discern what the legislature originally intended to accomplish with the 1993 amendment. Looking at the changes in the aggregate, it is apparent the legislature did not intend in 1993 to supplant the prescribed penal provision of K.S.A. 8-1567(f) with a penalty under the guidelines. We decline to use the later enactment rule of construction in this case. The specific over the general rule of construction is equally strong, if not stronger, in this case. Moreover, the 1994 legislature’s subsequent striking of the language relating to severity level undercuts the argument that tíre language was intended to supplant the existing penalty provision. We hold that the penalty provision for a conviction of felony driving while under the influence, K.S.A. 1993 Supp. 8-1507(f), is controlled by the specific mandatory sentencing requirements of that section and not the Kansas Sentencing Guidelines Act. We affirm the sentence imposed by the district court. Affirmed.
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Royse, J.: Judith E. Swartz brought this action against her mother, Pamela M. Van Beek, and her adoptive father, James M. Swartz, seeking damages for injuries arising out of childhood sexual abuse committed by James Swartz. The district court granted the defendants’ motions to dismiss, concluding that Judith Swartz’ claims were barred by the eight-year statute of repose found in K.S.A. 60-515(a).. Judith Swartz appeals. Judith Swartz filed her petition on November 9, 1993. She alleged that she was bom on November 18, 1968. She alleged that between November 8, 1979, and September 27, 1982, James Swartz raped her on several occasions. She alleges that Van Beek failed to properly supervise her and left her in the care of James Swartz. The petition recites that on February 28, 1983, James Swartz was convicted of several felony sex crimes and sentenced to 15 years in prison. In Counts I and II of her petition, Judith Swartz asserted negligence claims against the defendants related to the incidents of sexual abuse. Count III asserts a claim against James Swartz for negligent infliction of emotional distress. Count IV asserts a claim against both defendants for civil conspiracy to commit sexual abuse. The district court construed K.S.A. 60-515(a) as barring Judith Swartz’ claims. Interpretation of a statute is a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). This court’s review of questions of law is unlimited. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). K.S.A. 60-515 tolls the statutes of limitations for persons under legal disability. K.S.A. 60-515(a) provides: “Except as provided in K.S.A. 60-523, if any person entitled to bring an action, other than for tire recovery of real property or a penalty or a forfeiture, at the time die cause of action accrued or at any. time during the period the statute of limitations is running, is less than 18 years of age, an incapacitated person or imprisoned for a term less than such person ‘s natural life, such person shall be entitled to bring such action within one year after the person’s disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action." (Emphasis added.) The district court determined in this case that the last acts of the defendants giving rise to Judith Swartz’ cause of action occurred no later than September 27, 1982. Thus, under the except clause of 60-515(a), no action could be commenced after September 27, 1990. We agree. The district court’s interpretation of 60-515(a) is consistent with our Supreme Court’s interpretation of K.S.A. 60-513(b). That subsection provides that, for negligence actions, “in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” That subsection “make[s] 10 years the absolute limit for filing actions.” Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 659, 831 P.2d 958 (1992); see Dobson v. Larkin Homes, Inc., 251 Kan. 50, 52, 832 P.2d 345 (1992). “The plain language of K.S.A. 1991 Supp. 60-513 and the applicable case law require that after July 1, 1989, a negligence action must be brought within 10 years of the original wrongful act or the action is barred.” Admire Bank & Trust v. City of Emporia, 250 Kan. 688, Syl. ¶ 7, 829 P.2d 578 (1992). See also Ruthraujf, Administratrix v. Kensinger, 214 Kan. 185, 191, 519 P.2d 661 (1974) (suggesting language which is now found in K.S.A. 60-513). A recognized rule for determining legislative intent is that ordinarily identical words or terms used in different statutes on a specific subject are interpreted to have the same meaning in the absence of anything to indicate that a different meaning was intended. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 640, 694 P.2d 462 (1985). In light of that rule, we conclude that K.S.A. 60-515(a) requires that a person under disability bring a cause of action within eight years of the wrongful act or the action is barred. Both statutes reference the “time of the act giving rise to the cause of action.” Judith Swartz argues that the eight-year period in 60-515(a) only begins when the fact of injury is reasonably ascertainable, citing Gilger v. Lee Constr., Inc,, 249 Kan. 307, 820 P.2d 390 (1991). She contends that she had until November 2000 to bring a cause of action because she did not realize until November 1992 that her emotional problems were due to childhood sexual abuse. Swartz ignores the fact that Gilger interpreted a version of K.S.A. 60-513(b) which is no longer in effect. See Harding, 250 Kan. at 659 (“In Gilger we again looked at K.S.A. 60-513 prior to the 1987 amendment.”). Even more important, Swartz ignores the holding in Gilger that “K.S.A. 60-515(a) triggers the eight-year statute of limitations for minors on the date of the negligent act.” 249 Kan. at 319. In short, Gilger provides no basis for changing the triggering event of K.S.A. 60-515(a). The statute clearly states that the injurious act triggers the eight-year statute of repose. Judith Swartz also argues that K.S.A. 60-523 extended the period in which she could file suit. K.S.A. 60-523 provides in relevant part: “(a) No action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced more than three years after the date the person attains 18 years of age or more than three years from the date the person discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse, whichever occurs later. “(d) This section shall be applicable to: (1) Any action commenced on or after July 1,1992, including any action which would be barred by application of the period of limitation applicable prior to July 1, 1992.” Judith Swartz asserts that because 60-523 was enacted before her cause of action had expired, the defendants had no vested right in the eight-year limitations period contained in K.S.A. 60-515(a). The defendants argue and the district court concluded that K.S.A. 60-523 could not alter the effect of K.S.A. 60-515(a), because 60-515(a) is a statute of repose, not a statute of limitations. We agree. Our Supreme Court thoroughly discussed the differences between statutes of limitations and statutes of repose in Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992). “A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not yet have accrued. It is substantive. Thus, Kansas constitutional protection applies only to statutes of repose because they pertain to substantive rights.” 250 Kan. at 668. The distinction between statutes of limitations and statutes of repose is significant. As the Supreme Court explained in Harding: “The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law. The legislature cannot revive a cause of action barred by a statute of repose, as such action would constitute the taking of property without due process.” 250 Kan. at 669. Harding examined K.S.A. 1991 Supp. 60-513(b) and determined that it is a statute of repose because it “bars the cause of action after the 10-year period even though the action may not have yet accrued.” 250 Kan. at 669; see Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994); Dobson, 251 Kan. at 52. The same can be said of K.S.A. 60-515(a): it abolishes the cause of action after the eight-year period even though the action may not have yet accrued. We agree with the district court that 60-515(a) is a statute of repose. That determination leads to the conclusion that K.S.A. 60-523(d) does not and cannot revive a cause of action barred by K.S.A. 60-515(a). The district court did not err in holding that Judith Swartz’ claims were barred by the operation of 60-515(a). Judith Swartz also argues on appeal that the district court correctly declined to grant the motions to dismiss on the grounds of parental immunity. The problem with this argument is that the district court did not rule on the parental immunity issue; it relied solely on its analysis of the statute of repose. The journal entry of judgment entered by the district court does not mention parental immunity. It is not our function to expound on issues not decided by the district court, particularly when those issues have no bearing on the disposition of the case. See City of Hutchinson v. Wagoner, 163 Kan. 735, 741, 186 P.2d 243 (1947). Affirmed.
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Gernon, J.: Martin Vann appeals a district court order which granted his former wife, LaVerne Reich, judgment against him for $37,597.73 and post-judgment interest. Reich cross-appeals the denial of her request for prejudgment interest and the refusal to dismiss Vann’s appeal. Vann and Reich were married in 1949. In 1976, they signed a note to the Federal Land Bank of Wichita (FLB) for $339,000, secured by real estate they owned. They were jointly and severally Hable on the debt to the FLB. Vann and Reich were divorced in 1982. Vann was awarded the real estate which was mortgaged to the FLB free and clear of any claim by Reich. Each received one-half of the mineral interest in the mortgaged property. Vann defaulted on the note, and the FLB sued Vann and Reich for the balance due on the note and to foreclose its mortgage. Reich filed a cross-claim against Vann, asking for a judgment against him in the amount of any deficiency, relying on the divorce decree and the judgment therein. In June 1987, the FLB was granted judgment against Vann and Reich in the amount of $328,052.46 and was allowed to foreclose on the mortgage. No appeal was taken from the foreclosure judgment, no post-trial motions were filed, and the matter of Réich’s cross-claim against Vann was not addressed at a hearing or in the journal entry of foreclosure. Vann filed for bankruptcy in August 1987. The bankruptcy filing stayed the foreclosure sale. Reich, FLB, and another creditor objected to the bankruptcy. Eventually an agreement was made in which (1) Vann dismissed the bankruptcy; (2) the sale of the foreclosed real estate proceeded, with FLB purchasing it at a public sale for $250,000; and (3) the court entered a deficiency against Vann and Reich in the amount of $67,387.34. Between June 1988 and April 1993, Reich paid $37,597.73 on the judgment. The trial court allowed Reich to file an amended cross-claim in the foreclosure action and granted her judgment in the amount of her contribution based on the judgment in the divorce action. The court granted her post-judgment interest. The court denied Reich’s request for prejudgment interest and her motion to dismiss Vann’s appeal. Vann appealed the money judgment and the granting of post-judgment interest. Reich cross-appeals the denial of prejudgment interest and the denial of her motion to dismiss Vann’s appeal. On appeal, we must determine: (1) Does res judicata bar Reich’s cross-claim; (2) did the March 1988 agreement abrogate the divorce judgment; (3) is Reich’s contribution claim valid; (4) should prejudgment interest be awarded; and (5) should Vann’s appeal have been dismissed? DISMISSAL First, we find Reich’s argument on whether Vann’s appeal should have been dismissed to be without merit. The journal entry on the cross-claim was filed on February 7, 1994. Reich filed a motion to amend that judgment on February 14, 1994. Vann filed a premature notice of appeal on March 3, 1994, which was not docketed in the Court of Appeals within 21 days of that date. Reich’s motion to amend the judgment stayed the running of the appeal time. The journal entry which ruled on her motion was filed on May 2, 1994. Pursuant to Supreme Court Rule 2.03 (1994 Kan. Ct. R. Annot. 8), Vann’s premature notice of appeal took effect as if it were filed on that day. Vann filed a second notice of appeal on May 4, 1994, well within the time frame allowed under current statutes and rules. Under either filing, Vann perfected his appeal. RES TUDICATA Vann argues that Reich’s cross-claim is barred by the doctrine of res judicata in that the judgment entered on June 23, 1987, in the foreclosure action was final as to all claims, including Reich’s claim. Vann cites several cases for the proposition that res judicata bars the relitigation of matters which were determined or should have been determined in a prior action. Vann argues that Reich’s cross-claim should have been adjudicated when the FLB’s summaiy judgment motion was adjudicated. Vann also points to specific language in the journal entry which, he argues, shows that the judgment was final as to Reich’s cross-claim. That language reads, “[A]ll issues have been duly joined upon the pleadings and . . . the cause is at issue and the trial thereof may now proceed.” The district court found that it had not resolved Reich’s cross-claim and that the judgment was not final under K.S.A. 60-254(b). While this court’s standard of review is de novo, the district court’s finding gives some guidance as to what the court intended when it granted the foreclosure judgment against Vann and Reich. “The doctrine of res judicata applies only in the case of final judgments; a judgment which is not final and does not adjudicate the rights in litigation in a conclusive and definitive manner cannot be set up in bar of a subsequent action.” 50 C.J.S., Judgments § 620. At the time the court ruled on the foreclosure action, it could do nothing more than recognize Reich’s claim. Until Reich paid some amount on the judgment, she had no claim of contribution against Vann. The right of contribution arises out of the payment of or on a judgment. Hays v. Farm Bureau Mut. Ins. Co., 225 Kan. 205, 211, 589 P.2d 579 (1979). There was simply no basis for ruling on or recognizing a “contribution” claim until Reich paid on a judgment. Furthermore, the doctrine of res judicata is founded on the principle that the party “has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction.” Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988). “[T]he doctrine of res judicata is held not to apply to issues raised in the previous case which were not decided by the court or jury. Hence, the doctrine of res judicata does not preclude relitigation of an issue raised by the pleadings in the prior action, but not considered either by stipulation of the parties or otherwise.” Jackson Trak Group, 242 Kan. at 691. Reich had neither litigated nor had the opportunity to litigate her cross-claim when the court entered the foreclosure judgment. The court had not yet considered the claim. Under these circumstances, res judicata should not bar Reich’s cross-claim. ABROGATION OF DIVORCE OBLIGATION Vann’s next argument on appeal is that Reich gave up her right of contribution when she signed the “Agreement” dated March 17, 1988. The FLB, Reich, and Vann entered into the agreement after Vann filed for bankruptcy, which stayed the foreclosure sale of the real estate. Under the agreement, Vann agreed to dismiss his bankruptcy suit so that the foreclosure sale could go forward. Vann and Reich acknowledged that they remained personally liable on the debt owed to die FLB and on any deficiency that might exist after the foreclosure sale. The FLB agreed to exclude certain parts of die real estate from the foreclosure sale. The FLB refinanced the homestead located on the real estate to Vann and agreed not to sell Reich’s one-half mineral interest at the initial sale. The agreement never mentions the divorce decree or Reich’s right of contribution against Vann. Vann argues that by Reich’s agreeing to remain personally liable on the debt and any deficiency owed to the FLB, she gave up her right of contribution against Vann. According to Vann, Reich gave up this right in consideration for Vann’s agreement to dismiss the bankruptcy suit. Vann argues that Reich must have intended to benefit Vann by agreeing to remain personally liable on the debt because, otherwise, the promise was legally meaningless. Reich argues that she never gave up her right of contribution against Vann. The agreement never mentions Reich’s right of contribution against Vann, nor does it contain any language which purports to alter rights and responsibilities as between Vann and Reich. Reich argues that in the agreement, she merely acknowledged her existing liability to the FLB, nothing more. “This court can review the negotiated agreement and decide its legal effect. Regardless of the construction the district court gave the agreement, this court may independently construe the contract and determine its legal significance.” NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558, 562, 775 P.2d 675, rev. denied 245 Kan. 785 (1989). Various rules of construction apply when a court interprets a written agreement: “ ‘A cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if the intention is consistent with legal principles.’ [Citation omitted.] When a contract is plain and unambiguous, the parties’ intent should be determined from the instrument. [Citation omitted.] However, where ambiguity or uncertainty is involved, the parties’ intent may be determined from all the language used in the contract, the circumstances existing when the agreement was made, the object sought to be obtained, and other circumstances, if any, which tend to clarify the intention of the parties. [Citation omitted.] Whether an ambiguity exists in a written instrument is a question of law for the court. [Citation omitted.]” Hollenbeck v. Household Bank, 250 Kan. 747, 751-52, 829 P.2d 903 (1992). ‘When a written instrument is complete, the court will not imply an additional term. Language in a contract is ambiguous only when the words used to express the meaning and intention of the parties are insufficient in that the contract may be understood to reach two or more possible meanings.” Havens v. Safeway Stores, 235 Kan. 226, Syl. ¶ 2, 678 P.2d 625 (1984). Read as a whole, the agreement is not ambiguous as to whether Reich agreed to give up her right of contribution against Vann. The agreement simply does not contain any such language. The language cited by Vann only addresses the rights of the parties as between the FLB and its two debtors, Vann and Reich. It does not address the rights of the parties as between Vann and Reich. From its face, the agreement cannot possibly be read to mean that Reich gave up her right of contribution against Vann. In order to reach the conclusion that Reich did, in fact, give up her right of contribution against Vann, this court would have to imply a term which does not appear in the agreement. Only if the court finds that the agreement is ambiguous may the court imply such a term. Vann has provided no evidence, other than bald allegations and his own interpretation of the agreement, that this was the case. If he presented any such evidence to the trial court, he has failed to include it in the record on appeal. An appellant has the burden to designate a record on appeal sufficient to establish the claimed error. Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, 671, 809 P.2d 1216 (1991). CONTRIBUTION While both parties refer to Reich’s right against Vann as a right of contribution, this terminology may be confusing. In fact, under Reich’s argument, she has a right of indemnity because Vann should reimburse her for any and all amounts paid to the FLB. Under Vann s argument, Reich has a right of contribution because she remains hable for one-half of the judgment; therefore, Vann need only reimburse her for amounts paid in excess of that one-half of the judgment. We have concluded that Reich had and continues to have a right of indemnity against Vann. Therefore, her claim is for all amounts she.paid to the FLB. She is not liable for one-half of the judgment. The court correctly ruled in Reich’s favor on this issue. PRETUDGMENT INTEREST The trial court in its ruling on this issue did not give any basis for the denial of Reich’s request for prejudgment interest. Presumably, the court gave its reasons during the hearing on the motion; however, a transcript of that hearing is not included on appeal. Since the case was submitted on stipulated facts, our standard of review is de novo. Therefore, we may consider the issue on appeal. K.S.A. 16-201 provides for the payment of interest. It reads, in 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.” Case law further explains when prejudgment interest is to be awarded. "The general rale is that an unliquidated claim for damages does not draw interest until liquidated. [Citation omitted.] A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computation. 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. [Citations omitted.]” In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 868, 703 P.2d 840 (1985). “A cause of action for contribution is considered an implied contract not in writing.” Litwin v. Barrier, 6 Kan. App. 2d 128, Syl. ¶ 4, 626 P.2d 1232 (1981). A decision of the Tenth Circuit Court of Appeals interpreting Kansas law states: “[I]f a claim is liquidated, prejudgment interest must be awarded.” Royal College Shop v. Northern Ins. Co. of N.Y., 895 F.2d 670, 673-74 (10th Cir. 1990). “ ‘[W]here necessary to arrive at full compensation, a court may in the exercise of its discretion award interest or its equivalent as an element of damages even where the primary damages are unliquidated.’ [Citation omitted.]” Royal College Shop, 895 F.2d at 675. Reich argues that her claim, as divided into three separate payments, was liquidated from the date of each payment. The parties’ stipulations of fact include a statement from the FLB regarding the amounts it received in satisfaction of the judgment against Vann and Reich. These include: 5/10/89 Payment from Bob Frederick (Reich’s attorney) of $26,601.25 from the sale of minerals; 8/ 6/90 Payment from Reich of $950.00; 3/19/91 Payment from Reich of $10,046.48. Given the stipulations of the parties, there is no uncertainty as to the amount due and the date it was due. Therefore, it was error for the trial court not to award Reich prejudgment interest. Therefore, this matter is remanded to the trial court for the calculation of interest consistent with our holding. Affirmed in part, reversed in part, and remanded.
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RüLON, J.: JEM appeals the district court’s determination that his prior juvenile adjudications should be counted as convictions for purposes of enhancing a misdemeanor to a felony conviction. We reverse and remand the cause for further proceedings. The facts of this case are not in dispute: In March of 1994, the State filed a complaint against JEM for theft of property (cigarettes) valued at less than $500 in violation of K.S.A. 1993 Supp. 21-3701. The complaint alleged that, because JEM had been convicted of theft on two or more occasions within 5 years immediately prior to the instant offense, the crime should be ranked as a severity level 9 nonperson felony pursuant to K.S.A. 1993 Supp. 21-3701. The district court agreed and based on stipulated facts, JEM was adjudicated a juvenile offender for theft of property valued at less than $500 in violation of K.S.A. 1993 Supp. 21-3701, which the court determined to be a severity level 9 nonperson felony based on the two prior theft adjudications. The parties stipulated that JEM had, within the 5 years immediately preceding the instant offense, been adjudicated a juvenile offender in case No. 92JV0581 for theft of cigarettes in violation of K.S.A. 21-3701. He was also adjudicated a juvenile offender in August of 1992 for theft of a bicycle in violation of K.S.A. 21-3701 in case No. 92JV1210. Theft of property worth less than $500 is a class A nonperson misdemeanor unless there exist prior convictions. K.S.A. 1993 Supp. 21-3701. This issue is a matter of first impression in this state and involves a question of statutory interpretation and, thus, a question of law. A trial court’s interpretation of a statute is a question of law, and this court’s scope of review is unlimited. State v. Williams, 18 Kan. App. 2d 424, 425, 856 P.2d 158 (1993). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). 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, 436, 855 P.2d 956 (1993). “ ‘In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.’ ” State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]). “ ‘[T]he legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ [Citation omitted.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). JEM argues that pursuant to the Kansas Juvenile Offenders Code, the clear intent of the legislature is to treat juveniles differently from adults. He argues that pursuant to K.S.A. 38-1601, no order of the district court in any proceeding under the provisions of the juvenile code shall be deemed to import a criminal act on the part of any juvenile. JEM claims that the terms “adjudicated” and “convicted” are mutually exclusive. The State agrees that juveniles are to be treated differently from adults. However, it claims that the legislature drafted the statute in such a way as to make sure repeat misdemeanor juvenile offenders received the appropriate rehabilitation services, which are only available to felons. Therefore, solely for the purpose of enhancing sentences for repeat offenders, the legislature meant for the term “adjudication” to be synonymous with the term “conviction.” K.S.A. 1993 Supp. 21-3701, in part, provides: “Theft is any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner’s property: “. . . Theft of property of the value of less than $500 is a class A nonperson misdemeanor, except that theft of property of the value of less than $500 is a severity level 9, nonperson felony if committed by a person who has, within five years immediately preceding commission of the crime, been convicted of theft two or more times.” K.S.A. 38-1601 reads, in relevant part: "In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile, but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.” Kansas case law has previously recognized that juvenile adjudications are not equated with criminal convictions. “Under Kan sas statutes a juvenile proceeding is considered a civil proceeding of a protective nature totally divorced from any criminal implication.” State v. Muhammad, 237 Kan. 850, Syl. ¶ 2, 703 P.2d 835 (1985). “[T]he adjudication of delinquency against [a] defendant under the Federal Juvenile Delinquency Act does not amount to a prior conviction of a felony as intended by the Habitual Criminal Act of this state and ... it cannot be used to enhance the penalty which may be imposed against the defendant.” State v. Fountaine, 196 Kan. 638, 645, 414 P.2d 75 (1966). However, the State correctly notes that pursuant to the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq., juvenile adjudications are used in the computation of criminal history scores. The critical question is whether the adoption of the sentencing guidelines evinces a change in legislative intent to mandate that juvenile adjudications are now synonymous with criminal convictions. K.S.A. 1993 Supp. 21-4711(f) states that for purposés of determining an offender’s criminal history classification, “juvenile adjudications will be applied in the same manner as adult convictions.” K.S.A. 1993 Supp. 21-4709 lists the nine criminal history categories. All nine categories make reference to “adult convictions or juvenile adjudications.” K.S.A. 1993 Supp. 21-4710 states that the criminal history categories contained in the guidelines are based upon prior convictions of person adult felonies, nonperson adult felonies, person and nonperson felony juvenile adjudications, person and nonperson class A misdemeanor convictions, person and nonperson class A misdemeanor juvenile adjudications, person class B adult convictions and juvenile adjudications, and certain select nonperson class B adult convictions and juvenile adjudications. “Criminal history” is defined as, and includes, any adult felony, any class A or class B person misdemeanor, or other select misdemeanor convictions and comparable juvenile adjudications possessed by an offender at the time such offender is sentenced. K.S.A. 1993 Supp. 21-4703(d). We note, however, that the sentencing guidelines consist of two components — crime severity level and criminal history. “The sentencing guidelines grid is a two-dimensional crime severity and criminal histoiy classification tool. The grid’s vertical axis is the crime severity scale which classifies current crimes of conviction. The grid’s horizontal axis is the criminal history scale which classifies criminal histoiy.” K.S.A. 1993 Supp. 21-4704(c). The provision of K.S.A. 1993 Supp. 21-3701 which elevates theft of property worth less than $500 to a level 9 nonperson felony deals with crime severity level, not criminal history. Further, unlike the criminal histoiy statutes in the Sentencing Guidelines Act, K.S.A. 21-3701 does not specifically include juvenile adjudications. It has long been the law in this jurisdiction that criminal statutes are to be construed strictly against the State. State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993). Additionally, where the language is plain and unambiguous, the courts are required to give effect to the language without considering what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). The plain language of K.S.A. 1993 Supp. 21-3701 indicates that only prior theft convictions may be used to enhance the severity level of the crime. The plain language of the Juvenile Offenders Code provides that adjudications under the code are not criminal convictions. The legislature is aware that juvenile adjudications do not constitute criminal convictions. In drafting the Sentencing Guidelines Act, the legislature took great care to include criminal convictions and juvenile adjudications as part of the criminal history computation. Had the legislature meant for juvenile adjudications to be counted as convictions for the purpose of enhancing the crime severity level, it certainly could have drafted the statute to include them. One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). By specifically including juvenile adjudications in the guidelines statutes relating to criminal history computations and not including similar language in K.S.A. 1993 Supp. 21-3701, the legislature has demonstrated its intention that juvenile adjudications not be used to enhance the severity of a theft conviction. Reversed and remanded for further proceedings.
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The opinion of the court was delivered by Mason, J.: Mary J. Losey sued the Atchison, Topeka & Santa Fe Railway Company, alleging the death of her husband to have been caused by its negligence. A demurrer to her evidence was sustained, and she appeals. There was evidence tending to show these facts: The deceased, Robert M. Losey, was accompanying a shipment of live stock and household goods. The train arrived at Strong City about ten o’clock at night, and was placed on a siding, his car being about a block and a half east of the depot. Losey, with two other shippers, G. F. McClean and James H. Russell, went to the depot to learn when their train would leave, and were informed that it would not go out before morning. After eating at a restaurant they returned to the train to look after the stock and lock the cars for the night. They then started back to the depot to spend the night, the weather being cold. They walked west between the track on which their train stood and' a track lying between four and five feet north of it;' one witness said it was about four feet from the south rail of the north track to the cars on the other track. They all walked between the tracks, nearly abreast, Losey on the right, McClean on the left, and Russell a little behind them. When they were about half way to the depot the rear car (a coal car — that is, a flat car with a coal bin on top of it) of a part of a freight train backing west over the north track, at the rate of about five miles an hour, struck Losey, throwing him.under the wheels and causing- his death. His companions were listening, but heard no bell or whistle. They looked up the track before starting, but saw no train. None of the three carried a light of any kind. There was no person on the rear end of the rear car, but a brakeman with a lantern was on the other-end of it or on the nearer end of the car next to it. A string of freight cars stood on a track north of that on which the accident occurred. These cars, with those of the train to the south, increased the darkness by cutting off a part of the light from the street- lamps. There was still enough light, however, so that a man could have been seen at a distance of two car-lengths. It was usual for shippers of live stock, while waiting at Strong City at night, to walk back and forth between their cars and the depot, over the railroad yards, as Losey did. After McClean had described the manner in which he and the two others walked between the tracks, this question was asked on cross-examination: “Mr. Losey, then, must have been walking on the ends of the ties of the track upon which the train was approaching, was he not?” He answered: “I rather think he was.” Russell also testified that he believed Losey was walking on the ends of the ties. Russell himself was walking south of the ends of the ties and was struck on the right shoulder by a coal car. It was not shown whether or not the ground between the tracks was surfaced up level with the ties. It may fairly be inferred that it was sufficiently common for shippers of live stock to be walking at night near where the deceased was killed, so that the presence of somebody at that place was reasonably to have been expected. Therefore there was room for a finding that, the trainmen owed a duty to Losey to give warning of the approach of the train, for the evidence tends to show that he was not a trespasser-, nor a mere licensee; that he was engaged in a legitimate errand incident to the proper care of his car, and was subject to the rule applicable to a shipper in charge of stock on a freight train. (Coon v. Railway Co., 82 Kan. 311.) The fact that McClean and Russell heard no bell or whistle, although they were listening, justifies an inference that none was sounded, unless the train was so long that the sound would not carry the distance. In that case, there was warrant for holding the railroad company to the requirement of maintaining an efficient watch at the rear. Although the brakeman on the train may have been in a position to see the three men, the fact that he gave them no warning would support a finding that he was not keeping a sharp look-' out, since there was evidence that a man could be seen at a distance of two car-lengths. The alternative would be that he did see them but remained silent — a less favorable supposition for the defendant. Upon these grounds we conclude that upon the issue of whether the company was negligent there was sufficient evidence to go to the jury. A more difficult question is whether the deceased was. himself, as a matter of law, guilty of such negligence as prevents a recovery. He was not in the situation of an ordinary passenger; that .is, he was not absolved from all duty to watch for approaching trains. He was required to exercise care in that regard for his own protection, adapted to the circumstances. (Coon v. Railway Co., 82 Kan. 311.) If when struck he had been walking upon the track between the rails, while he might with equal convenience have walked in safety between the tracks, no recovery could be had, because-it would then be clear that he had voluntarily and unnecessarily chosen an unsafe place in lieu of a safe- ■one. (Railway Co. v. Schwindt, 67 Kan. 8; 83 Cyc. 826.) If he had been walking upon the ends of the ties ■as a matter of deliberate choice the situation would have been substantially the same, since he must have known that the danger there was as great as between the rails. Or if he occupied that position unconsciously, but by reason of a failure to use ordinary care to avoid it, his negligence would bar recovery. But if he attempted to walk in the safe space between the two tracks, and while using reasonable diligence to that ■end inadvertently came within the overhang of the cars and so met his death, he was not guilty of contributory negligence. We think the evidence is not necessarily inconsistent with the last hypothesis, and therefore that he can not be said to have been negligent as a matter of law. He was of course in fact quite close to the track on which the train was approaching, but he may have supposed that he was near the middle of the space between the two tracks. In the yards, within so short a distance from the depot, it is not unreasonable to suppose the ballast between the tracks was surfaced even with the ties, the contrary not being shown and the burden of proving contributory negligence being on the defendant. The presence of the freight train on the track to Losey’s left may have made it easier for him to misjudge his position, or caused him involutarily to incline to the other side, bringing him within reach of the cars on the right-hand track without his realizing it. Such an error under the circumstances can not be said conclusively to show a want of ordinary care. It can not be said with certainty that the exercise of reasonable diligence would enable one so situated to keep within the narrow zone of safety. Of a somewhat similar situation it was said, in Chicago, B. & Q. R. Co. v. Troyer, 70 Neb. 293: “It is . . . argued . . . that, in. stepping to one side of the center of the path between the tracks where he was walking so as to come in the path of the projecting portions of the engine, his act was equivalent to stepping between the rails of the track with knowledge,' which he is shown to have possessed, that this track was being used by passing engines and cars, used in and about the business of the company in its freight yard, where the injury occurred. ... A person in walking between the two • tracks . . . would, at times, in all probability, and perhaps unconsciously, swerve his body from the true center line so as to come within the path, of the overhanging parts of a car or engine moving on the adjacent track. Under such circumstances, we can not believe that negligence ought, as a matter of law, to be imputed to one who, while thus traveling, permitted' himself to depart from the straight and narrow path in so slight a degree and, because of which, came in collision with a moving object on the track, the coming of which he was wholly unconscious of.” (pp. 303, 304.) The language quoted is obviously in point, although the decision in support of which it is used might perhaps be distinguished from the present one upon various grounds. With this possible exception, none of the many cases cited in the plaintiff’s brief quite reaches the precise point here involved. A number of them relate to the duty of looking and listening before crossing a track or while necessarily or excusably upon a track. There is abundant authority for the proposition that if one is rightfully upon a track the question of how often he must look for an approaching train in order to show due diligence is one for the determination of the jury. But the contention of the defendant is that Losey was negligent in unnecessarily placing himself in a position of peril. In the cases most nearly resembling the present one the following differences may be noted. In two the public were accustomed to use the railroad track as a pathway, and it does not appear that there was a safe place by the side of the track. (Stanley v. Railroad Company, 120 N. C. 514; Bourassa v. Grand Trunk Ry. Co. [N. H. 1909] 74 Atl. 590.) In two a person walking between two tracks got upon one of them in avoiding an engine which approached him on the other, occasioning some fright and confusion on his part. (Laverenz v. The C., R. I. & P. R. Co., 56 Iowa, 689; Ray v. Railroad, 141 N. C. 84.) In another the space between the tracks, although as a matter of fact reasonably safe, was “not wholly free from obstructions, more or less formidable to those walking after night.” (Chicago, St. P., M. & O. R. Co. v. Lagerkrans, 65 Neb. 566, 572.) ■ A shipping contract had been issued to and signed by Losey, which included an agreement as to his conduct thus expressed: “We, the undersigned, owners or in charge of the live stock . . . mentioned in the within contract . . . agree that . . . [we] will not walk or stand on any track or station or other places at night or in the- dark without a lantern, and will not be upon or attempt to cross any track while switching is being or is about to be done thereon, or cars moved thereon, but will first use every effort to ascertain whether it is safe to go upon or across said track or tracks.” Except for a reference to a lantern, this language does not materially alter the situation, since with this exception the obligation assumed is substantially what the law would impose in any event, being implied in the requirement that the shipper should use reasonable diligence for his own protection. Moreover, as already stated, the evidence does not conclusively establish that Losey’s getting upon the track or too near the track was either intentional or negligent. The failure to comply with the requirement regarding a lantern is not a bar to a recovery unless the evidence conclusively establishes that if the deceased had carried a lantern he would have escaped injury. The mere possibility or probability that such would have been the case is not enough. THe omission to c'onform to the terms of such a contract is merely a form of negligence, and is frequently so spoken of. (I. C. R. R. Co. v. Beebe, 174 Ill. 13, 21; Chicago, R. I. & P. Ry. Co. v. Lee, 34 C. C. A. 365, 368; Texas and Pacific Railway v. Reeder, 170 U. S. 530, 534.) In order to constitute contributory negligence it must be the proximate cause of the injury (29 Cyc. 526-528); that is, one .without which the injury would not have occurred. (32 Cyc. 745, note 77; 7 A. & E. Encycl. of L. 371; 1 Thomp. Com. L. of Neg. § 221.) A lantern might have helped Losey to judge of his own true position with regard to the track, but would not necessarily have prevented a mistake; nor can the court say with certainty that it would have been of material aid in this respect, in view of the manner in which a light sometimes interferes with the vision of one who carries it. If it were established that the brakeman on the train had been keeping a lookout along the track it might be said that he certainly must have seen 'the lantern, although he might not have been able to see the men without it. But there is no conclusive evidence that the brakeman was in fact watching the track, or indeed any evidence whatever to that effect. Therefore it is not proved that the absence of the lantern caused the injury. The court sustained objections to several answers given by witnesses, and a review of these rulings is sought. McClean, having testified that he had looked up the track before starting for the depot, was asked whether Russell and Losey.had done the same. He answered, “I think they did,” and the answer was stricken out. If a witness employs such an expression as “I think” or “I believe/’ meaning that his uncertainty results either from lack of close observation of the fact originally or from want of clear recollection regarding it, his testimony is admissible, and the qualification goes to its weight; but if he means that he did not observe the fact at all, and so has no personal information regarding it, and has acquired his opinion from other sources, his testimony is incompetent. (1 Wig. Ev. §§ 658, 726, 727, 728, and cases cited; and, also, additional cases in 5 Wig. Ev. § 728.) Ordinarily there may be something in the manner of the witness that helps to show what he really intends, but here this aid was not available, for the evidence was by deposition. Usually further questions develop the source of his belief, but here the subject was not pursued, either in direct or cross-examination. That a witness uses the expression “I think” does not of itself indicate an entire want of personal knowledge on the subject, and in the present instance there is nothing in the circumstances to suggest that such meaning was intended. The witness had an opportunity to observe the conduct of his associates, and when he says that he thinks they looked up the track he must be deemed to be speaking from his observation and recollection, rather than from his judgment of what they would have been likely to do. In answer to the question whether Losey and McClean looked up and down the track at the same time he did, Russell answered, “I could n’t say as to that, but I rather think they did.” This is not essentially different from the reply given by McClean. We think the natural presumption is that the witness meant that he could not speak with certainty, but thought he had observed such conduct on their part. McClean was also asked whether there was a brakeman or other person on the rear end of the car that struck Losey. He answered, “I don’t think there was; I think he was likely in the second car.” This, as well as another similar answer, was stricken out. The witness testified in substance that at the time of the accident he did not know what had happened until he had assisted Russell, who had been hit; that he then looked up and saw the cars going by; that about opposite him he saw a man with a lantern on the rear of the first car or the front end of the second, who came "down from the car and proved to be a brakeman; that a few minutes later several other persons came. This shows enough actual observation to give a basis for the' testimony. The judgment is reversed and the cause remanded for further proceedings in accordance herewith.
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The opinion of the court was delivered by West, J.: Murray and wife mortgaged three pieces of property to the Wyandotte State Bank, and the mortgage was foreclosed June 22, 1909. July 1, 1909, an order of sale was issued, the sale was had on August 9, 1909, and the property purchased by Cohen. The next day the bank filed a motion to confirm the sale, and on August 24 Cohen filed a similar motion. August 21 Murray and wife and Donovitz and wife, Donovitz having purchased one of the properties shortly after the mortgage was given, filed motions to set the sale aside. The foreclosure was had in division No. 1 of the Wyandotte district court, before Judge Fischer. He being out of the state, the clerk docketed these motions in division No. 2, presided over by Judge True. August 25 Judge True denied the motions to set aside, without prejudice to the rights of the movers to set up the same facts in any equitable proceeding they might theréafter institute, having allowed the motions to confirm on the day previous. All the parties were present in person or by counsel, or both, when the motions were heard, and voluminous affidavits were filed and considered. Certain other motions filed and afterward withdrawn have no bearing on the issues here and need not be considered. After his return to the state, on September 10,' 1909, during the same term in which Judge True had acted, Judge Fischer, in division No. 1, set aside all the rulings made by Judge True, stating as a ground therefor that Judge True was without jurisdiction to make the orders, application for such ruling havin'g been made in division No. 1 by the appellees. On October 30, 1909, Judge Fischer refused to revoke his order of 1-evocation, and he set the sale aside on condition that Donovitz and wife and Mrs. Murray' pay the costs within five days, which was done. It appears that Judge Fischer acted upon the same evidence which was considered by Judge True, making exactly the opposite ruling. It was and is claimed by the appellees that the order of sale directed that the three properties be sold separately, and that there was collusion and unfairness in the conduct of the sale and that the properties were wrongfully sold in bulk. The order in fact directed the properties to be.offered separately, but did not direct them to be sold separately, and the return and affidavit of the undersheriff who made the sale show that he was unable to get bids for the separate properties and therefore sold them together. There is some indication of unfairness and collusion, but the majority of the court think this is substantially overcome by countervailing proof. Out of the labyrinth of facts and details presented and argued the following questions emerge and require answers: (1) Did Judge True have jurisdiction? (2) Did Judge Fischer have jurisdiction? (3) Did the latter commit reversible error in setting aside Judge True’s orders? (4) Did he commit reversible error in setting aside the sale ? Of these in their order: Chapter 112 of the Laws of 1909 (Gen. Stat. 1909, §§ 2445-2458) provides that the district courts .of all counties having, or hereafter acquiring, a population exceeding 100,000 inhabitants shall consist of two or more divisions, each to be known as the district court, division No. —, each being given a separate number, in the order of their creation. Section 2447 of the General Statutes provides: “In case of sickness, or absence or disqualification of the judge of any division,-the judge of either of the other divisions may hold court in place of such absent or disqualified judge, and do and perform any act or duty pertaining to such division.” Section 2448 provides that all the powers of appointment not provided for in the act but delegated by law to the judge of the district court shall be exercised jointly by the judges of the divisions or a majority thereof, provided that in all cases pending, and in proceedings before any division or the judge thereof, the appointment of appraisers, receivers, referees and other appointments with reference to such, cases or proceedings shall be made by the judge of such division. By other sections the clerk is required to docket cases in rotation in the several divisions, in the order in which they are filed; -in cases of indirect contempt the judge of either division may hear, determine and punish for the violation of any judgment, order or decree issued in the district court or any division thereof; changes of venue may be taken from one division to another, and cases may be assigned or transferred for hearing or trial from one division to another; all jurors drawn for service in the district court are eligible to serve in any division thereof. These provisions make it plain that it is in all respects one court, whether consisting of one division or more than one. The proviso to section 2448 manifestly • refers to appointments of appraisers and the like, but not to orders of sale after decree of foreclosure, because, whoever makes the order, it must be directed to the sheriff, and there is nothing akin to an appointment about it. By the clearest statutory direction the judge of one division is authorized to preside when the judge of the other division is absent, sick or disqualified. It seems entirely clear, therefore, that Judge True had jurisdiction to make the orders. It can not be seriously questioned, either, that during the same term Judge Fischer had jurisdiction to set aside these orders, the same as if they had been his own. Let it be understood that we are now discussing jurisdiction, not discretion, propriety or judicial comity. It would have been perfectly proper for Judge True to defer hearing the matters and to order the motions docketed in the other division, unless there was some good reason why a speedy hearing should be had, but he was judge of the district court, the only one then in the district, and his jurisdiction to hear and decide the motions was full and complete. When Judge Fischer returned and learned of the condition he might well have declined to set aside Judge True’s orders, even though he felt that they should have been first considered by the judge who had tried the case; but whatever his reason may have been, we fail to see wherein he lacked jurisdiction to reassume control of the matter and put it back where it was before the transfer to the other division. It is essential to the harmonious and orderly administration of justice that in courts consisting of two or more divisions care be used to preserve proper respect and deference between the judges, and that they refrain from reviewing or reversing one another’s orders or proceedings unless for some good reason. (Ryle v. Harrington, [N. Y.] 14 How. Pr. 59; Marvin v. Weider, 31 Neb. 774; Nancy Harris, &c., v. Ralph Clark and others, &c., [N. Y.] 10 How. Pr. 415; Platt v. N. Y. & Sea Beach Ry. Co., 170 N. Y. 451; Bank v. Jennings, 4 N. Dak. 228; Edwards v. James, 13 Tex. 52; Adams v. Spangler, 17 Fed. 133.) It is urged that Judge Fischer’s order setting aside the sale was erroneous in view of the showing made as to its regularity, and that the. court has little or no discretion to set aside a sale regularly made. Prior to 1893 the statute required confirmation when the sale had in all respects been made “in conformity' to the provisions of this article.” (Gen. Stat. 1868, ch. 80, § 458, Gen. Stat. 1889, § 4556.) But the legislature of 1893 amended this section and provided that the sale shall be confirmed if the court “finds the proceedings regular and in conformity with law and equity.” (Laws 1893, ch. 109, § 26, Code 1909, § 500.) “Whether the sale should be confirmed is a matter within the sound equitable discretion of the court; but it is a discretion that must be exercised reasonably and not arbitrarily, and if abused is subject to review on appeal. The sale must appear to be in all essential respects fair and proper or it will not be confirmed, and the simple fact that confirmation would sacrifice the interests of those entitled to the protection of the court is sufficient ground for a refusal to confirm. The court will not, However, be astute to find objections, and if there is no evidence of unfairness, deception or impropriety the sale is properly confirmed. Even though there have been irregularities, if the court can give a good title, and it is to the interest of the parties to confirm the sale, it will be confirmed, and the purchaser compelled to complete his purchase. Mere lapse of time will not prevent confirmation. It is not a matter of course to open the biddings upon an offer of a larger bid.” (24 Cyc. 34.) In Cocks v. Izerd, (74 U. S.) 7 Wall. 559, Mr. Justice Davis said: “The law will not tolerate any influences likely to prevent competition at a judicial sale, and it accords to every debtor the chance for a fair sale and full price; and if he fails to get these, in consequence of the wrongful interference of another party who has purchased his property at a price greatly disproportioned to its value, equity will step in and afford redress, either by setting aside the proceedings under the sale or by holding the purchaser to account.” (p. 562.) Section 631 of the second edition of Gibson’s Suits in Chancery thus states the rule in equity cases: “A party may have a sale set aside whenever the property'has not sold for a fair price, and there has been: (1) some failure of the master to advertise the land properly; or (2) to sell at the right time or at the right place; or (3) the master has been guilty of some other misconduct or irregularity injurious to the sale; or (4) the purchaser has been guilty of some misconduct tending to diminish the price or discourage bidding; or (5) others have been guilty of combinations or other acts injuriously affecting the sale; or (6) the weather was so exceedingly inclement, or the waters so high, or in some other way bidders were prevented or deterred from attending the sale; or (7) for some other reason, not' the fault of the party complaining, a fair sale was not had. Mere inadequacy of price, however, without more, will not justify a court in setting aside a sale, unless an advance bid be tendered. The only test a court can have of the value of property sold at a forced sale is the price it will bring, on due notice, at a public sale fairly conducted. “If the property has sold for so good a price that a resale would probably avail nothing, .the court may disregard all irregularities in the sale, especially where persons under disability are concerned. The fullness of the price in such cases, however, should be made affirmatively to appear, by reference to the master or otherwise.” The general rule is that mere inadequacy of price, unless the inadequacy be so great as to shock the conscience, will not justify even a court of equity in setting a sale aside, but, while announcing this rule,.the'court in Graffam v. Burgess, 117 U. S. 180, said: “Looking at the whole case, the traces of design on the part of Graffam to mislead the complainant, to lull her into security, and thus to prevent her from redeeming the property, are abundantly manifest, and such design must be assumed as an established fact. . . . As already perceived, we do not rest our conclusion alone upon the gross inadequacy of the consideration of the sale; but upon that, in connection with the unfair conduct of the defendant in taking advantage of the complainant’s ignorance of the sale, and giving her no intelligible notice or intimation of it, or of his intended seizure of the property after the year of redemption had passed, but standing by and seeing her expend large sums of money upon it, even after the year had expired. This, we think, presents a case sufficiently strong to justify the action of the court below, at least to the extent to which it went in making the decree appealed from [allowing the owner to redeem].” (p. 190.) In Pewabic Mining Company v. Mason, 145 U. S. 349, Mr. Justice Brewer said : “It may be stated generally that there is a measure of discretion in a court of equity, both as to the manner and conditions of such a sale, as well as to ordering or refusing a resale. The chancellor will always make such provisions for notice and other conditions as will in his judgment best protect the rights of all interested, and make the sale most profitable to all; and after a sale has once been made, he will, certainly before confirmation, see that no wrong has been accomplished in and by the manner in which it was conducted. Yet the purpose of the law is that the sale shall be final; and to insure reliance upon such sales, and induce biddings, it is essential that no sale be set aside for trifling reasons, or on account of matters which ought to have been attended to by the complaining party prior thereto. And in this respect regard may properly be had to all that has transpired before, for the conduct of the parties, their acts and omissions, may largely interpret their action at the time of the sale.” (p. 356.) We think that under the present statute the trial court has substantially the discretion of a chancellor, and that, while a sale should not be set aside arbitrarily or capriciously, it may be set aside when to confirm would permit inequitable and unfair practices or conduct to be rewarded at the expense of one who has been fair and honest. The entire evidence on which the trial court acted is before us as abstracted, and we may properly reach our own conclusions thereon. (Armstrong v. Grant, 7 Kan. 285; Kansas Pacific R. Co. v. Butts, 7 Kan. 308; Moore v. Pye, 10 Kan. 246.) The judgment appears to have been for $3090, to bear eight per cent interest, for the unpaid taxes, if any, and the costs of sale and costs of the action. The bid of Cohen was $3198.99, but whether this covered the entire amount due we are not advised. It appearing that Donovitz and wife in their motion to set aside offered to have the judgment purchased for principal, interest and costs, or to give any guaranty the court might require that if a new sale be ordered they would bid on the property an amount sufficient to equal the judgment, interest and costs due at the time of sale, we believe a case is presented for exercising some discretion, although the entire evidence might be held to justify confirmation only. If Cohen can be assured of the property, or a return of his bid, with interest, he will be fairly well protected, and if Donovitz and wife desire to comply with reasonable conditions in order to set the sale aside it would seem equitable to give them an opportunity, for both the bidder and the owner.of the foreclosed property should be protected, to the end that judicial sales may invite purchasers to offer, and enable owners to receive, a fair price. The cause is therefore remanded with directions to confirm the sale unless within twenty days from receipt of the mandate the appellees or some of them deposit in court a sum of money equal to the amount of the judgment, costs and accruing costs, as a continuing bid for the property ordered sold; also, the costs in this court, and six per cent interest on Cohen’s bid from the time it was paid to the sheriff, to be returned to him with the amount of his bid in case the sale is set aside; that if such deposit be so made the order setting the sale aside be affirmed, and that such further proceedings in accordance herewith be had as may be proper.
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The opinion of the court was delivered by Smith, J.: William Weisiger was the record owner of the lots in question. On the 6th day of November, 1901, one Clarence Ford obtained a tax deed to the lots, and his right thereto was conveyed to John Baker, who. subsequently, and on the 5th day of October, 1905, brought this action in the district court of Finney county to quiet his title to the lots against Weisiger and wife and others. • Service was made by publication. On the 21st day of November, 1905, judgment was rendered in favor of the plaintiff quieting his title. On March 8, 1906, Weisiger and wife filed their mo tion and affidavit to open the judgment, and also filed an answer to ,the petition of Baker, in which they made a general denial of the allegations of the petition, and, for a second defense, alleged that the tax deed upon which the plaintiff based his title was null and void. On April 21, 1906, the motion to open the judgment was allowed. September 22, 1906, the Weisigers filed a motion to make S. C. Thompson a party defendant, which motion was sustained November 30,1906, and summons served on Thompson on December 2, 1906. Permission was also given the Weisigers, on November 30, 1906, to file an amended answer and cross-petition, in which, in addition to the allegations of the former answer, they alleged that defendant Thompson purchased the property in controversy on or about the 31st day of March, 1906, from Noah B. Matkins, to whom the plaintiff, John Baker, on the same day had conveyed the property; that both transfers were made with the full knowledge of the interest of the Weisigers in the property, and were made for the purpose of defrauding them out of their interest therein, and that such transfers were null and void as against them. On August 23, 1907, by leave of court and with the consent of the Weisigers, Thompson filed an answer in which he admitted that he claimed an interest in the property, and made a general denial to the allegations of the cross-petition, alleging, in substance, that he purchased the premises from Noah B. Matkins on the 10th of January, 1906; that Matkins executed a warranty deed conveying the premises to him; that •at that time he was actually occupying the premises, and has ever since continued in the possession thereof; that he purchased the property in good faith, after taking legal advice that the title to the premises was in Noah B. Matkins, and after being advised by counsel that the title to the property had been quieted in the action of John Baker against Mary H. Snavely et al.; that he made a payment on the property, and took it subject to a mortgage for $1650, which he had since paid off and discharged; that at the time of the purchase he had no notice of any claims by defendant William Weisiger, and bought the property in good faith; that the tax deed in question was recorded in the office of the register of ■ deeds of Finney county on the 7th of November, 1901, that five yeafs had expired after the recording of the deed prior to any pleading filed by defendant Weisiger against this- defendant; and that the action, as to him, was barred by the five-year statute of limitation. Trial was had before Charles E. Lobdell, judge pro tern., and the following findings of fact and conclusions of law were made: “BINDINGS OB BACT. “(1) That the defendant, Weisiger, is the owner of the fee or patent title to the property in controversy, unless such title is extinguished by the tax deed to Baker or by the judgment heretofore rendered in this case and subsequent conveyances which are claimed, to have been accepted in good faith and in faith of such judgment. “ (2) That on November 21, 1905, the plaintiff, John Baker, obtained judgment in this court and in this cause quieting title in him to the land in controversy against the defendants, Weisigers. “(3) That on November 28, 1905, John Baker executed a sufficient deed of general warranty to the property in controversy to Noah B. Matkins and placed the same in escrow for future delivery with G. L. Miller. “(4) That on March 3, 1906, the defendants, William Weisiger and wife, filed in this court their motion, in proper form, to open up the judgment therein-before rendered in favor of Baker as recited in finding No. 2. “(5) That thereafter, and on April 21, 1906, by the consideration of this court such decree and judgment was fully set aside and opened up. “ (6) That on March 31, 1906, the deed from Baker to Matkins was, by Miller, delivered to Matkins. “ (7) That on February 19, 1906, Noah B. Matkins, a single man, execúted a sufficient warranty deed to the property in controversy to the defendant S. C. Thompson, which deed was placed in escrow with G. L. Miller, as was the deed from Baker to Matkins. “(8) That on the same date that the deed from Baker to Matkins was delivered by Miller the deed from Matkins to Thompson was by Miller delivered to Thompson. “ (9)' That Thompson took possession of the property in controversy on January 6, 1906, and has been continuously in possession since that time. “(10) That the title of Baker at the time of his judgment rested upon the tax deed introduced in evidence. ■ “(11) That a part of the consideration for the tax deed on which Baker’s title rested was what was known as ‘current university tax,’ levied for the year 1896. “(12) That the so-called redemption notice for the lots in controversy, published by the county treasurer of Finney county, contained in the amount stated as necessary to the redemption of said lots the sum of thirty-five cents as costs for advertising, and included it for each of the three years embraced in the notice necessary to redeem, and that the treasurer’s fee of twenty-five cents was also included in the notice for each year.” “CONCLUSIONS OF LAW. “(1) That the tax deed to Baker is voidable and should be set aside because of the facts stated in findings 11 and 12. “ (2) That the creation of the escrow with reference to the deeds from Baker to Matkins and Matkins to Thompson was not in law delivery of the deeds. “ (3) That the delivery of such deeds, which actually took place on March 31, 1906, can not be made to re- ' late back so as to relieve Thompson and Matkins of the effect of the notice to open up judgment, which motion was filed before the escrow was terminated. “ (4) That at the time of the delivery of. their deeds to them Matkins and Thompson had constructive notice, which was binding upon them, of the motion then filed and pending in this cause to open up and vacate the judgment, and that neither of them was a purchaser in good faith and in faith of such judgment.” The contention of the appellees is that the deed from Baker and wife to Matkins did not become a conveyance of the property until the actual delivery thereof on the 31st of March, 1906, that the deed from Matkins to Thompson did not become an actual conveyance until the same date, and that Thompson had constructive notice of the pendency of the action before the deed was delivered to him. Upon the other hand, the appellant contends that both the deed from Baker to Matkins and the deed from. Matkins to him were executed long before the motion to reopen the judgment was filed, on March 3, 1906; that the considerations therefor were paid in part at the time of the execution of the contracts, and the remainder in full when the deeds were delivered, on March 31, 1906; that they were in escrow with Miller from the time of their execution until their actual delivery, and that when the actual delivery was made, on March 31, 1906, the delivery dated back to the time of the original contracts and partial payments. These adverse contentions constitute the only substantial question in the case. Whether a deed executed and placed in escrow relates back to the time of the contract and execution thereof, so as to vest the grantee with the full title from that time, or whether it becomes such conveyance only upon the full performance of the conditions, seems to depend upon which of the two theories will promote justice under all the circumstances of the individual case. “This doctrine of relation (from the time of the second delivery to the time of the delivery in escrow) is of ancient origin, and has always been applied, both at law and in equity, to meet the requirements of justice, to protect purchasers, and to effectuate the intent of the parties to contracts.” (Scott v. Stone, 72 Kan. 545, 548, citing numerous cases.) The syllabus in that case states the rule strongly, without exception, and holds that, under the circum stances of that case, the delivery dated back to the time of making the contract. The same doctrine was upheld in Davis v. Clark, 58 Kan. 100. In each of those cases justice clearly required that the conveyance be held as of the date of the delivery in escrow and not as of the .date of the second delivery. ■ In a case similar to this, Hill v. Miller, post, 196, as between the rights of a purchaser from a tax-deed holder and the holder of the patent title, who had brought an action to set aside a decree quieting the title, it was said: “At all ev’ents he [the purchaser] was not protected by the statute unless he bought and paid for the land prior to January 18, 1908, the date when the proceeding was .begun to set aside the decree quieting title.” (p. 198.) * ; No finding is made by the court in this case in regard to any payment made by the appellant prior to the delivery of the deed from the party holding it in escrow, which was twenty-eight days after the filing of the motion to set aside the judgment. Nor does the appellant disclose in his evidence how much he paid toward the purchase price, at or prior to the time of the execution of the deed. The evidence is that he máde a payment. According to the evidence, he purchased seventeen lots for $3500, nearly $206 per lot, and assumed the payment of a mortgage for $1650, which he afterward paid, leaving $1850, upon which “a payment” was made at the time of purchase, and the remainder March 31, 1906. The three lots involved in this action would, at the price, amount to about $618, leaving over $1200, less such payment as he may have made, and the amount of which he does not disclose, to protect himself against any failure of title. He was bound to take notice, at the time he actually received his deed and made final payment, of the proceeding to vacate the judgment quieting the title, and, as he has failed to show that he was unable to protect himself from any loss, if the title to the lots should eventually be shown to be in the appellees,' there is no reason for holding that the second delivery of the deed related back to the time it was delivered in escrow... On the other hand, the invalidity of the tax deed is not contested, and the appellees’ equities in the case are very strong. We think the court correctly decided the case. We have not considered various other assignments of error, as it seems to be conceded that the case, must turn upon this one question. The judgment is affirmed.
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The opinion of the court was delivered by Smith) J.: This is an original proceeding in quo warranto in which the plaintiff seeks to oust the defendant from the office of county attorney of McPherson county, and to be adudged to be entitled to the office himself. The plaintiff and the defendant were opposing candidates for election to the office of county attorney at the. last general election. The plaintiff received about one-twentieth of the votes cast and the defendant nineteen-twentieths. The vote was canvassed and an election certificate issued to the defendant, and he is now occupying the office, from which the plaintiff seeks to oust him. The defendant raises the objection that the plaintiff' has no right to maintain this action. On the other hand the. plaintiff maintains that the defendant was ineligible to nomination or election to the office for the reason that he was not a practicing lawyer under the laws of the state, and that the electors of the county must take notice of the law and must be presumed to have known that the defendant was not eligible, and that where an elector intentionally votes for one not qualified for an office his vote is absolutely void. Therefore, it is contended that all of the legal votes cast at the election were cast for the plaintiff. This position is entirely untenable. It is not to be presumed that the electors of the county intentionally, voted for a candidate who was not eligible to. nomination and election. Where this ground is claimed it must be made to appear by clear evidence. (Wood v. Bartling, Mayor, 16 Kan. 109, 114; State v. Bell, 169 Ind. 61, and note thereto in 124 Am. St. Rep. 211. See, also, State v. Frear, [Wis. 1910] 128 N. W. 1068.) We do not think the presumption could be indulged if the plaintiff’s contentions as to the law are correct, and they are not. On the other hand, the defendant was qualified to receive the nomination and election to the office. Of this we will speak hereafter. Prior to the enactment of chapter 163 of the Laws of 1907 (Gen. Stat. 1909, § 2225) our statute prescribed no qualifications requisite to a nomination or election to the office of county attorney other than to other county and state offices. Any citizen qualified to hold any county or state office, being elected to the office of county attorney, could hold it. If a practicing lawyer holding the office of county attorney was disbarred from practicing in the courts of the state his office of county attorney was not thereby vacated and he could still continue to hold and perform the duties of the office in the courts of his county. (The State v. Swan, 60 Kan. 461.) It is, however, provided by chapter 163 of the Laws of 1907, as follows: “No person shall be eligible for the nomination or election to the office of county attorney of any county unless such person shall have been regularly admitted to practice law within the state of Kansas, and is at the time of his nomination and election a regular qualified practicing attorney under said laws.” A practicing attorney is an officer of the court in which he is admitted to practice. The power to admit applicants to practice law is judicial and not legislative, and is, of course, vested in the courts only. (4 Cyc. 900.) The act of admission is a judicial determination, and is not for a term of years but for life, or until the attorney shall have been disbarred by a court of competent jurisdiction. It is generally conceded, however, that it is competent for the legislature to prescribe the qualifications for admission and the grounds for disbarment, as well as the procedure therein. It is not within the power of the legislature, however, to admit an attorney to practice in the courts of the state or to disbar a practicing lawyer. (Ex parte Secombe, 60 U. S. 9; In re Day, 181 Ill. 73, syl. ¶ 6; Garrigus v. The State, ex rel. Moreland, Auditor, 93 Ind. 239, 242.) Originally the courts alone determined the qualifications of candidates for admission, but to avoid friction between the departments of government the courts of this and other states have generally acquiesced in all reasonable provisions relating to qualifications enacted by the legislature. In section 2 of chapter 11 of the General Statutes of 1868 (Gen. Stat. 1901, § 389) the legislature prescribed certain qualifications of applicants for admission to practice law and vested the district courts with jurisdiction to admit to practice in the district and inferior courts of the state. Section 1 of the act (Gen. Stat. 1909, § 428) provided that all persons who, by the laws theretofore in force, were permitted to practice as attorneys and counsellors might continue to practice as such. This was the only general provision on the subject until the enactment of chapter 64 of the Laws of 1903, which latter act repealed section 2 of the act of 1868. ' It prescribed certain qualifications of applicants for admission and transferred the power of admitting applicants from the district to the supreme court of the state. The next and latest general provision in regard to the matter is chapter 67 of the.Laws of 1905 (Gen. Stat. 1909, g§ 429, 430), which differs from the act of 1903, substantially, ' - > ,n that it prescribes that the candidate should -,ve read law for three years or be a regular gradúale of the law department of the University of Kansas or of some other school of law of equal requirement?, and in turn repealed chapter 64 of the Laws of 1903. In none of these acts has section 1 of the act of 1868, authorizing attorneys previously ad-mitted to continue in practice, been repealed. It is contended that this section was by its very terms retroactive and did not apply to the future, and, in sub stance, that all attorneys practicing in the state since the enactment of chapter 64 of the Laws of 1903 who had not been admitted prior to the act of 1868 were not authorized to continue to practice in the state. As before said, this argument is not entitled to much consideration. It is conceded that the defendant was admitted to practice in the district and inferior courts of the state of Kansas subsequent to 1868 and prior to 1903; but it is urged that the qualifications prescribed by chapter 163 of the Laws of Í907 (Gen. Stat. 1909, § 2225) require that a candidate for nomination or election to the office of county attorney must be admitted to practice in the supreme court as well as in the district and inferior courts of the state. The language of the provision, “shall have’ been regularly admitted to practice law within the state of Kansas,” is hardly susceptible of the construction contended for. It certainly does not compel such construction. In view of the fact that the duties of a county attorney do not require him, as such, to transact any business in the supreme court, and also that the duty of attending to state cases pending in the supreme court.is devolved by statute upon the attorney-general (Laws 1879, ch. 166, §71, Gen. Stat. 1909, § 8906), we are not inclined to adopt this contention of the plaintiff. The defendant had been “regularly admitted to practice law within the state of Kansas” (Laws 1907, ch. 163) at the time he was nominated for and elected to the office of county attorney, and was eligible thereto. The statute in question does not purport to annul his former admission to practice, if it be assumed that the legislature had the power so to do. We conclude that the defendant was eligible to be nominated and elected to the office of county attorney at the general election of 1910. The judgment is for the defendant.
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Per Curiam: This is the second appeal in this action. (Sparks v. McAllister, 80 Kan. 546.) A judgment for the plaintiff on the pleadings was there held erroneous. The petition was then amended, and a demurrer to the amended petition was sustained. The plaintiff appeals from this order. In the former opinion it was held that as the petition did not allege a waiver of a certain material condition of the contract nor excuse for its nonperformance — the failure to perform having been expressly alleged in the answer — the plaintiff appeared to have made default in the contract, and the motion for judgment in his favor should have been denied. In the amended petition an excuse for failure to comply with the condition was sufficiently pleaded, viz., that the defendants had notified the plaintiff that they would not purchase the property, and that they had promised to pay the plaintiff for milling the ore. The defendants have not filed a brief, and we are unable to discover any reason for sustaining the demurrer to the amended petition, which appears to state facts sufficient to constitute a cause of action. The judgment is reversed with directions to overrule the demurrer and proceed with the cause.
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The opinion of the court was delivered by Smith, J.: This action was brought by the bank to recover a judgment on a note given by the defendant. There was evidence which tended to show that the note-arose out of the following transaction: Swanson and Claflin ordered one sixteen-horsepower Huber traction engine of the Huber Manufacturing Company, of Marion, Ohio, through the defendant, the local agent for the 'Huber company at Scandia, Kan. The order on the part of the company was executed by C. E. Miller,, as agent, and by Swanson and Claflin, the purchasers, and contained a contract of warranty that the engine was made of good material, was well constructed, and, with proper management, capable of doing well the work for which the machine was made and sold; that if inside of six days from the date of its first use it should fail in any respect to fill the warranty, written notice should be given to the company at its home office and to-the agent, and a reasonable time allowed to get to the-machine with skilled workmen .and remedy the defects. The engine proved defective, and Swanson and Claflin notified the local agent verbally and he notified the-company, and an expert was sent and attempted to make it work. It again failed to work, and again notice was given and an expert came two or three times, but it still failed to work properly, and the purchasers, delivered the engine to the local agent, who wrote the company that the engine had been brought in and to-send a man, with proper authority, to compromise. Thereafter Mr. Miller, the agent who signed the contract, came and made the following settlement: The-Huber Manufacturing Company was to return forthwith the note in suit to the defendant and take back the engine sold to Swanson and Claflin, and the matter should be fully settled. This agreement was made-November 12, 1907. It also appeared that Swanson and Claflin had given. their three notes to the company, for $500 each, in payment for the engine, and that the company agreed to assign these notes, without recourse, to Freeburg for the note in suit, an old engine and his commission in the transaction; also, that about the time of the settlement of November 12, 1907, C. E. Miller, the agent, called at the Bank of Scandia for the note in suit, and was informed that it had been there, that Freeburg had refused payment, and it had been returned to the company. The note had previously been sent to the Bank of Scandia, indorsed: “For collection, pay to the order of Bank of Scandia, Kan. The Huber Manfg. Co., Marion, Ohio.” This bank had immediately presented the note to the defendant, who refused payment, and the bank returned it to the manufacturing company, with the letter that came with the note, with notice that payment had been refused. The note in suit was due, on its face, December 26, 1907. Sometime before that date the agent, C. E. Miller, was in the plaintiff bank and talked with the cashier, Bartos, about the note before its alleged purchase, .which the evidence shows, if made at all, was made by the cashier, who testified in substance that the only investigation he made as to the financial standing of the defendant was that “when Mr. C. E. Miller first mentioned the note I asked him who this Freeburg was, and it was through him that I got the standing of Freeburg.” Whether the agent of the company, in arranging the alleged sale to the bank, made any representation as to the responsibility of Freeburg does not ^appear. It does appear, however, that the proposition was made to sell the note to the bank at a discount of $50. December 16 thereafter E. D. Streeter, manager of the Huber Manufacturing Company, addressed a letter to the Bank of Wilber which reads, in part, as follows : “Mr. Miller stated you offered to give us $950 for this note. We have decided to let you have the note for $950. We are inclosing herewith the note properly indorsed. Please send us draft for same by return mail, and oblige.” The plaintiff, by its cashier, Bartos, produced the discount register of the bank at the trial, and, after identifying it, testified: “Ques. This discount register has a column headed ‘Discount’; another column to the right of that, headed ‘Amount paid’; and in the first column, against this Freeburg note, .is written, in ink, ‘$50,’ while against this Freeburg note, in the other column, it is blank; is not that the fact? Ans. Yes, sir; that is the fact. “Q. In said discount register there is a column headed ‘Drawer or maker,’ in which appears the name of J. A. Freeburg, and next to that column is another column, headed ‘Drawee or indorser,’ and in this last-mentioned column, opposite the name of J. A. Freeburg, it is blank, there being no entry as to the drawee or indorser on the Freeburg note; is not that a fact ? A. That is a fact.” A copy of the draft was also introduced in evidence, viz.: “The Bank of Wilber. Wilber, Neb. Dec. 18, 1907. “$950. No. 12,962' “Pay to the order of Huber Manufacturing Co. $950, nine hundred fifty and no-100 dollars. To First National Bank, Lincoln, Neb. Jos. Bartos, Cashier.” Indorsed: “Pay to the order of City National Bank for deposit. The Huber Mfg. Co., E. D. Streeter, Mgr. Paid through Lincoln Clearing House, Dec. 20, 1907. City National Bank.” . Besides the showing of irregularity in the copy of the bank’s register, in that no mention was made of the drawee or indorser, the cashier testified that he had not notified the Huber Manufacturing Company of the nonpayment of the note,- and did not know of any notice having been given to it. After he heard from the defendant, soon after the alleged purchase of the note, he immediately turned the note over to the attorneys of the plaintiff for collection, who immediately brought this suit. Both the cashier, Bartos, and the manager of the Huber Manufacturing Company testified that, they knew of no infirmity in the note or any defense thereto at the time of the alleged sale thereof, but the. manager said that he got the letter from the Bank of Scandia, with the-indorsement that payment had been, refused. After the close of the evidence the court instructed the jury, and refused some instructions requested by the plaintiff, such refusal being assigned as error. The-jury retired- and returned the following special findings, excepting question- No. 11, which the court had correctly instructed was immaterial: “ (1) Ques. From whom, if anyone, did the plaintiff purchase the note in question in this action? Ans.. No one. “(2) Q. What did the plaintiff pay for said note,, if anything? A. Nothing. “(3) Q. To whom was such consideration, if any,, paid? A. No one. “ (4) Q. Was such note purchased prior to maturity —that is, prior to December 26, 1907? A. No. “(5) Q. Did the plaintiff bank have any notice that. Freeburg was intending to refuse or had refused payment of said note? A. Yes. “ (6) Q. Did the plaintiff bank have any notice that the note in suit was in payment for the engine testified about in this action ? A. Yes. “(7) Q. If you answer questions 5 and 6 in the affirmative, then state of what such notice consisted, by whom made, and in what manner. A. Stamp on. back of note and Miller verbal. “(8) Q. Did the indorsement, 'For collection,’ constitute notice to the plaintiff of an infirmity in the-note in suit? A. Yes. “(9) Q. If you answer question 8 in the affirmative, did that constitute the only notice that plaintiff had?' A. No. “(10) Q. Before the maturity of the note in suit did the defendant and Miller, the agent of the Huber Manufacturing Company, make a -settlement whereby this note was to be returned to him, and the company-get back the engine? A. Yes.’-’ It may be conceded that the court erred in its instructions as to what amounted to notice to the bank •of an infirmity in the note, and, under all the circumstances, the bank would not be required to make investigation and inquiry if it bought, the note in good faith; but the main question is whether or not the plaintiff bank in fact purchased the note in due course of business. Any of the errors which are complained of could not have misled the jury in determining this question. As will be seen by their special findings, the jury did not believe that there was any actual purchase of the note, and the eminent and fair district judge who presided at the trial, in refusing to set aside the findings and verdict, evidently agreed with the findings of the jury. We can not say that the findings are not supported by the evidence; in fact the whole transaction looks like a scheme to enforce payment of the note against the defendant, and to enable the plaintiff bank, instead of-the Huber Manufacturing Company, to bring an action thereon for the benefit of the Huber company, for which the bank generally acted as collection agent in the surrounding country. It was a palpable fraud on the part of the agent, C. E. Miller, after he had himself made the settlement and received back the consideration for the note, and on the part of the Huber Manufacturing Company, after it had been notified of his action therein, to attempt to collect the note. In fact the evidence shows that Miller, when he called for the note at the Bank of Scandia, after the settlement, stated that it belonged to Freeburg. The circumstances under which the bank claims to have bought the unsecured note were probably considered by the jury, as they had the right to consider them. The plaintiff’s evidence tended to show: That the sole maker resided in another state, and the bank made no inquiry as to his responsibility, except from the apparently irresponsible agent of the Huber Manufacturing Company, who was promoting the sale, and from whom no specific information seems to have been obtained; the irregular manner in which the note was entered upon the books of the bank; the small discount of five per cent, being about the commission of a local collector who makes a collection without suit; and all this at a time when it is a matter of general knowledge that the whole country, east and west, was in the throes of a great financial panic, during which depositors in many of the strongest banks could withdraw their money only in driblets to meet the necessities of life. It may be said that there was no evidence of the panic, but juries and courts may take cognizance of such facts as are within the common knowledge of mankind, without formal proof. Again, the conduct of the plaintiff, after the alleged purchase, seems to impeach the good faith of the transaction. It paid no attention to the presumably solvent indorser, not even notifying the Huber company of the nonpayment of the note, but immediately employed attorneys and started this action, when it had other notes belonging to the indorser in its possession for collection. This is not ordinary prudence, nor the ordinary course of business. The entire transaction suggests that some arrangement or guaranty had been made between the Huber Manufacturing Company and the bank that it would be saved from loss, even to costs of suit. Nothing less than this would, under the circumstances, be ordinary business prudence. The transaction, as claimed by the plaintiff, is hardly conceivable as a business proposition. The judgment is affirmed.
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The opinion of the court was delivered by West, J.: The appellees, Dorothy D. Kline and her husband, James M. Kline, sued to enjoin the appellants, the sheriff and the creditor of one Daniel Kline, from selling certain land on execution. Among the findings of fact are the following, in substance: That prior to February 15, 1905, Daniel Kline was the owner of a hotel in Bartlesville, Okla.; that on February 15, 1905, he conveyed this hotel to one H. H. White, in exchange for eighty acres of land in Lyon county, Kansas, which land was deeded to Daniel Kline and Dorothy' D. Kline, jointly, the deed being recorded April 1, 1905; that while owning the hotel, Daniel Kline became indebted to the Richards & Conover Hardware Company, a Missouri corporation, for kitchen furniture and fixtures, bought by Kline and placed in the hotel; that on April 25, 1905, Daniel Kline, without consideration, executed a quitclaim deed for his interest in the land to James M. Kline, which deed was recorded April 29, 1905; that on October 3, 1907, James M. Kline without consideration executed a quitclaim deed for the land to Dorothy D. Kline; that upon the execution of the deed from White to Daniel and Dorothy D. Kline, the latter, and James M. Kline, her husband, took possession of the land and continued to occupy it as a homestead until after the beginning of this suit, when it was sold to one Wiley, James M. Kline and wife having in the meantime mortgaged it for $2450; that the hardware company recovered judgments on its indebtedness in a justice court November 23, 1907, and on November 26, 1907, filed abstracts in the district court and procured executions to be issued thereon, and that the sheriff proposed to sell the land in controversy by virtue of these executions. The court further found that the conveyance from White to Daniel and Dorothy D. Kline was by the latter procured to be made to hinder, delay and defraud Daniel’s creditors, and especially the hardware company, and that Dorothy D. Kline knew that, the title of the hotel was in Daniel Kline and that he represented himself as the owner thereof when he obtained credit of the hardware company- and that she made no claim to the company that she was the equitable owner of the hotel or had paid the consideration therefor or owned any interest therein, and that the hardware company had no knowledge that the Klines owned or claimed to own the land in question until February 4, 1907, when the company received notice from its attorney that “they had an eighty-acre farm.” On these findings, and others not necessary to notice, the court made conclusions of law to the effect that the hardware company was charged with constructive notice of the contents of the deeds of February 15 and April 25, 1905, and with constructive knowledge of the fraud practiced by means thereof, and that by failure to exercise diligence the right of the company to attack the conveyances was barred by the statute of limitations; that the appellees were entitled to an injunction as prayed for, and that the land was the homestead of Dorothy D. and James M. Kline. The appellants moved for judgment on the findings, and this being denied they moved for a new trial, which was denied. The complaint is that the court erred in its conclusion of law that the hardware company was charged with constructive notice not only of the deeds, but also of the fraud practiced by means thereof. The appellees insist that a homestead question only is presented, and as no liability attached for purchase money, taxes, improvements or liens given by consent of both husband and wife, the hardware company can not look to the land for satisfaction of its judgments. It is also suggested that this was an attempt to use the two-year statute of limitations not as a weapon of attack, but properly, as a shield of title or an incident of the homestead occupancy; while on the other hand it is claimed that the appellees are asking affirmative relief and are attempting to convert the defensive shield of the limitations act into a sword of attack, citing Burditt v. Burditt, 62 Kan. 576, and other cases. Both parties appear to accept the findings of fact as correct, and complain only of the conclusions • of law. One theory of the appellants seems to be that Daniel Kline is still the real owner of the land, the quitclaim deeds being without consideration, and that as he could not give the land away in fraud of his creditors, his gratuitous grantee can not hold it as against such creditors; or, more correctly speaking, that he could not trade his hotel for land and escape the ownership of the latter by giving it to his sister-in-law in fraud of the hardware company. A fair conclusion to be drawn from the findings themselves is that Daniel Kline, in order to defraud his creditors, procured his land to be gratuitously deeded to Dorothy D. Kline, and therefore as between himself and herself on the one hand, and the hardware company on the other, he is the owner of the land, and being single, it could not be his homestead; and therefore it is subject, or should be subject, to execution sale for the payment of his debts. This conclusion leaves entirely out of view the finding that for more than two and one-half years the land was occupied by James M. Kline and wife as a homestead. The trouble with this finding is that it assumes the right of one without title or ownership in law to impress real estate with a homestead character. Had James M. or Dorothy D. Kline really owned the land or an interest therein this would have been possible, but a mere gift in fraud of creditors is insufficient to vest such a title or interest as will support a claim of homestead. Otherwise a merchant in failing condition, heavily indebted, might in fraud of his creditors exchange his entire stock for a farm and have the deed made to another without consideration, and thus enable the grantee to hold the farm as a homestead free from attacks by the creditors. The law will not permit fraud thus to be practiced. The findings failing to show that James M. or Dorothy D. Kline obtained any real title or interest in the land, the trial court was not warranted in concluding that it was their homestead, as against the hardware company. (Long Brothers v. Murphy, 27 Kan. 375.) There is no difference in principle and ultimate effect between giving the hotel to Dorothy D. Kline and giving the proceeds thereof — the farm — to her, and the statute makes void every conveyance of real estate for the purpose of hindering, delaying or defrauding creditors. (Gen. Stat. 1868, ch. 43, § 2, Gen. Stat. 1909, § 3834.) To hold that Daniel Kline could give away his property to defraud the hardware company would be to violate the maxim that one must be just before he is generous. While, no doubt, the creditors are charged with notice of the contents of the recorded deeds, we are not disposed to hold that they are also charged with knowledge of the fraud practiced by means of such deeds. We fail to see how the record of a deed from White to the Klines would give any intelligible clue to the fact that Daniel Kline had disposed of his hotel, or that he had so manipulated its disposal as to make a deed, fair on its face, speak aught but the truth. In Lewis v. Duncan, 66 Kan. 306; Black v. Black, 64 Kan. 689; Donaldson v. Jacobitz, 67 Kan. 244; and Rogers v. Richards, 67 Kan. 706, the instruments held to impart notice were in and of themselves of such character as to inform the searcher of the record as to the nature of the fraud. But where the recorded instrument, as in this case, furnishes no evidence of the fraud, constructive knowledge thereof can not be imputed. (Lant v. Manley, 75 Fed. 627; Godbold v. Lambert, [S. C.] 8 Rich. Eq. 155; Means v. Feaster, 4 S. C. 249; Erickson et al. v. Quinn, 47 N. Y. 410.) The attempt to satisfy the judgments by a sale of the land was in effect an action for relief on the ground of fraud which could be brought within two years from its discovery. If successful it must have substantially the same effect as a creditor’s bill to set aside the deeds from Daniel and James M. Kline and the deed from White to Dorothy D. Kline, and subject the property to the payment of the judgments as the property of the real owner, Daniel Kline. Daniel. Kline in paying for the land by the conveyance of his hotel and placing the title of the former in part in Dorothy D. Kline, thereby made her a trustee for his creditors (Gen. Stat. 1868, ch. 114, §§ 6, 7, Gen. Stat. 1909, §§ 9699, 9700), such part amounting presumably to a one-half interest. (13 Cyc. 664.) The finding that this was done by Daniel Kline to defraud his creditors is perhaps equivalent to a finding that aside from the land he was insolvent, for had he possessed other reachable property sufficient to satisfy his debts, he could hardly have intended to defraud his creditors by this conveyance; and this, being without consideration, could vest no interest in Dorothy D. Kline as against creditors. The transfer to her by James M. Kline, while more than two years later, was. also without consideration like the deed from Daniel Kline to him, and assuming that James M. Kline was a party to the fraud, the condition is the same in effect as if Daniel had conveyed directly to Dorothy, and both deeds would be void if made with the intent to enable Daniel to hinder or defraud his creditors. There is no finding as to this save the inference which might be drawn from the first conclusion of law, which recites fraud, practiced “by means of said deeds.” While the trial court very likely regarded both the quitclaim deeds as fraudulent, no such express declaration is found. The reference to Dorothy D. Kline’s failure to assert an interest in the hotel when the furniture was purchased indicates that some evidence may have been offered tending to show a claim of ownership by her, as the language of the finding would otherwise seem superfluous. The cause appears to have been treated as involving mainly the questions of homestead and limitations. When the hardware company discovered the fraud it acted promptly, hence the statute of limitations is no bar, but if it were, we see no reason why the appellees could not avail themselves thereof, whether it be considered a weapon or a shield. The homestead question also being eliminated, the cause should be remanded with instructions to refuse the injunction as to Daniel Kline’s interest in the land, and as to the remainder, unless it is made to appear that its transfer was bona fide, or that James M. or Dorothy D. Kline has some actual interest therein. The purchaser, Wiley, assumed the 1850-dollar mortgage and the commission mortgage, .and the sale should be made subject to these, also to the 650-dollar mortgage less the value, if any, of the chattel security as the same shall be made to appear. The judgment is reversed and the cause is remanded for further proceedings in accordance herewith.
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